Fourth Circuit

| Apr 5, 2011 | EEO Case Summaries by Circuit |

Updated to April 16, 2020

Fourth Circuit

Ashford v Pricewaterhouse Coopers, LLP, No. 18-1958 (4th Cir. Apr. 3, 2020). Panel: QUATTLEMBAUM, Niemeyer, Rushing. Claim on Appeal: Title VII (race) and § 1981 promotion, and Title VII retaliation. Disposition Below:  Motion to compel arbitration denied in part [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: “Unless and until federal law no longer prohibits” language in Title VII exclusion did not require a change in federal law; it was sufficient that defendant was no longer military contractor bound by Franken Amendment. Regarding procedural unconscionability, contention that only defendant would know if the Franken Amendment no longer applied to PwC at the time of any Title VII claim relates to the substance of the agreement, not the contract formation process or the lack of meaningful choice. Unequal bargaining power alone does not support procedural unconscionability; at any rate, plaintiff was a professional consultant with one of the largest firms in the country with degrees from Stanford University, Columbia University and Harvard University. Also no substantive unconscionability, where the terms of the agreement indicate that, at a minimum, there was a risk that any Title VII claim might have to be arbitrated.

Briggs v. N.C. Dep’t of Pub. Safety, 953 F.3d 236, 2020 FEP 88,512 (4th Cir. 2020). Panel: DIAZ, Wilkinson, Keenan. Claim on Appeal: § 1983 race demotion. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff’s recent retirement did not moot his appeal. Plaintiff has sworn that he would promptly return to work as a correctional captain if reinstated. He retired only because the work of a line correctional officer, the only position made available, is too dangerous given his age. In this way, his retirement is akin to an involuntary one, and involuntary retirements are adverse employment actions under federal law. State did not waive sovereign immunity by removing to federal court, because state had not consented to jurisdiction in its state courts. But plaintiff still has prospective-relief claims; demand for reinstatement falls within the Ex Parte Young exception.

Campbell v. McCarthy, 952 F.3d 193, 2020 FEP 82,411 (4th Cir. 2020). Panel: KING, Agee [RICHARDSON, concurring]. Claim on Appeal: ADEA and Title VII (sex) suspension.  Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff was suspended by the Army pending review of his security clearance for the very same reasons that he provisionally lost his security clearance. Because review of plaintiff’s claims requires review of the suspension of his security clearance – a review that necessarily “goes to the very heart of the protection of classified information”- Department of the Navy v. Egan, 484 U.S. 518 (1988), deprived the district court of subject matter jurisdiction to review each of the claims. Judgment vacated and remanded for entry of dismissal without prejudice for lack of subject-matter jurisdiction.

Evans v. Int’l Paper Co., 936 F.3d 183, 2019 FEP 320,265 (4th Cir. 2019). Panel: QUATTLEBAUM, Niemeyer, Keenan. Claim on Appeal: 1. Title VII harassment (race, sex). 2. Title VII constructive discharge (race, sex). 3. Title VII retaliation. 4. Equal Pay Act compensation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. 4. Affirmed [defendant]. Grounds: 1. Because hostile work environment claim reduces to contention that constructive discharge was tangible act, harassment is not evaluated separately. 2. No genuine dispute of material fact that plaintiff’s working conditions were so intolerable that a reasonable employee would have been compelled to resign. 3. Evaluation that rated plaintiff at “meets” rather than “exceeds,” alleged shunning, and rocky working relationship with co-managers insufficient to support adverse employment action. 4. Plaintiff failed to produce evidence that proffered comparators received higher salaries for performing jobs of the “effort, skill, and responsibility” as plaintiff’s job. Plaintiff professor selected, as EPA.

Perkins v. Int’l Paper Co., 936 F.3d 196, 2019 FEP 320,206 (4th Cir. 2019). Panel: QUATTLEBAUM, Niemeyer, Keenan. Claim on Appeal: 1. Title VII discrimination (race). 2. Title VII harassment (race). 3. Title VII constructive discharge (race). 4. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. 4. Affirmed [defendant]. Grounds: 1. Claims that plaintiff was denied positions, overtime, additional educational benefits and training all took place between 2007 and 2013 and were untimely. Claim that he was denied annual reviews was timely but did not concern an adverse employment action. Claim of “hostile treatment” is not a stand-along claim but is evaluated under rubric of hostile work environment. 2. Claims of uneven distribution of shift opportunities, shunning grouping of Black employees at bottom of ratings system, and disparate enforcement of rules were not objectively frequent or serious enough to constitute hostile work environment. While evidence of racially offensive conduct that plaintiff heard about second-hand should not be disregarded simply because he did not witness it, such incidents do not create a genuine issue of material fact on hostile work environment because the statements are remote in time relative to each other and to plaintiff’s decision to leave. Comments that plaintiff did not hear about made to others are irrelevant to “severe or pervasive” inquiry on the hostile work environment claim. 3. Because court concluded that plaintiff failed to show he was subjected to a hostile environment, he cannot show conditions serious enough to constitute constructive discharge. 4. Most alleged protected activities occurred after termination, and so cannot support causation. As to the timely acts of opposition, there is no evidence of actionable, timely adverse employment actions or causation.

Passaro v. Commonwealth of Virginia, 935 F.3d 243 (4th Cir. 2019). Panel: RICHARDSON, Anderson [TRAXLER, dissenting in part]. Claim on Appeal: 1. ADA harassment, demotion, reasonable accommodation, and retaliation. 2. Title VII discrimination (national origin) and retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Commonwealth has sovereign immunity against ADA. Defendant did not waive immunity by removing to federal court (noting split in circuits) or informing employees that the Commonwealth will abide by ADA (because that does not concern whether courts may hear private suits for damages). 2. District court erred in applying claim preclusion to state-administrative proceedings, which forum considered claims related to internal policies of the state agency, and forbid damages, only permitting limited monetary remedies such as back pay and, in some cases, attorney’s fees. Nor could plaintiff have asserted a Title VII claim for money damages as part of the subsequent state-court action appealing the grievance decision. Issue preclusion might apply if issues of discrimination or retaliation were addressed in these proceedings and judicial review were sought.

Westmoreland v. TWC Admin. LLC924 F.3d 718 (4th Cir. 2019). Panel: MOTZ, Gregory (NIEMEYER, dissenting). Claim on Appeal: ADEA termination. Disposition Below: Judgment after a jury verdict ($334,500 in damages) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Jury could find that the employer’s proffered reason for the discharge was pretextual. “Westmoreland[] … was nearly 61 years of age when fired, TWC terminated her after 30 years of consistently satisfactory work, it replaced her with a 37-year-old, the supervisory TWC official who delivered the news and signed the termination paperwork made a condescending and age-related remark immediately after the firing, and all TWC decisionmakers were aware of Westmoreland’s advanced age. Moreover, although TWC’s sole justification for its action was Westmoreland’s backdating of a form in violation of company policy, the offense was isolated, lesser sanctions were available, and company officials had advised her that the offense was not serious and she had nothing to worry about.” Plaintiff had no extra burden to present evidence beyond their prima facie case that “showed a specific and discriminatory motive,” as “pretext-plus” standard was put to rest by the Supreme Court nearly twenty years ago in Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 1330 (2000). While the employer repeatedly sought to couch the dispute as one about the plaintiff’s integrity, rather than just a post-dated document, court holds that that “TWC’s witnesses uniformly conceded that Westmoreland had served the company and its predecessors ably for more than three decades, during which time her supervisors never discerned any issues regarding her integrity.” A jury thus could have found it implausible after 30 years that the company might suddenly have discovered a deep flaw in plaintiff’s character. Court pushes back on “super-personnel departments” truism: “Of course, it would be improper for a jury to rule for an employee because it believed her firing was not a ‘wise’ or ‘prudent’ employment decision. But nothing bars a jury from considering an employee’s tenure and performance in evaluating whether her employer’s justification for her termination is so flimsy as to be untrue or implausible, and thus asserted in an attempt to mask a discriminatory motive.” Panel also rejects challenges to the jury charge (finding that it correctly, if somewhat inartfully, set forth the respective burdens of proof and production) and alleged prejudice by the trial judge during examination of the defense witnesses (which defendant never objected to at trial, and which did not rise to fundamental unfairness).

Haynes v. Waste Connections, Inc., 922 F.3d 219, 2019 FEP 143,596 (4th Cir. 2019). Panel: GREGORY, Thacker, Harris Claim on Appeal: Title VII and § 1981 termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in holding that plaintiff did not create genuine dispute of material fact on his prima facie case about a comparator who quit but was allowed to return. Plaintiff produced evidence that Hicks, a white employee also supervised by plaintiff’s manager, had several workplace infractions, including twice using a cellphone while driving, driving while distracted, and responding to a traffic situation late, and that comparator Hicks became angry and yelled at the manager before quitting his job. Yet, Hicks was permitted to return to his job, and plaintiff, who had fewer infractions and did not yell at his supervisor, was not permitted to return to his job and instead had his employment terminated. There was genuine dispute about the relative seriousness of the two employees’ infractions. There was also evidence in the record that both employees notified that managers at the time they left the workplace. “Indeed, the record indicates that Hicks yelled at his supervisor over a customer service disagreement before quitting his job-behavior that to a jury might seem far more egregious than Haynes’s text to his supervisor that he was feeling unwell and would therefore not be able to work his normal shift.” There was also a genuine dispute of material fact about whether he was meeting the company’s legitimate expectations: he was otld weeks before his termination that “everything looks good” and there was “nothing to worry about,” and received bonuses. Plaintiff “does not have to prove that he was a perfect employee, only that he was performing satisfactorily.” There was also a genuine dispute about pretext. Defendant’s explanation shifted over time (it later argued “poor attitude” instead of job abandonment). Case also remanded for consideration under “motivating factor” analysis.

Spencer v. Virginia State Univ., 919 F.3d 199, 2019 FEP 91,279 (4th Cir. 2019). Panel: RICHARDSON, Wilkinson, Floyd. Claim on Appeal: 1. Equal Pay Act. 2. Title VII compensation (sex). 3. EPA and Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Plaintiff professor selected, as EPA comparators, two male former administrators, whose pay was set as a prorated portion of their previous salaries. University had based putative comparators’ higher pay on their prior service as University administrators, not their sex, and thus they were not similarly situated, i.e., she and they performed “equal” work requiring “equal skill, effort, and responsibility.” Comparators were also in different departments and taught at different class levels, and the men supervised dissertations. Nor did the professors work equal hours: the record shows that the men worked more than plaintiff did week to week. Plaintiff’s expert report does not appear to take departmental affiliation into account, instead only accounting for the broader category of “school,” each of which encompasses several departments, and does not account for the comparators’ prior work in the administration, even though it was agreed that their prior administrative experience determined their salaries. Alternatively, the university established that the salary difference was based on a “factor other than sex,” 29 U.S.C. § 206(d)(1)(iv). Differential resulted from the university setting comparators’ pay at 75% of their previous salaries as administrators. In practice, the university generally paid former administrators who became professors “9/12ths” of their administrator salary. This practice appears to rest on the theory that professors work nine months out of the year, while administrators work year-round. Even if the university erroneously applied its 9/12ths practice to overpay the men, such a decision would still serve as a non-sex-based explanation for the pay disparity. 2. No genuine dispute on pretext; plaintiff presented no proof that the 9/12ths policy was used to pay men more than women. 3. Even if plaintiff’s characterization of the behavior is accurate, she did not present a genuine dispute that each action was both material and undertaken because of her complaints about salary equity.

Hannah P. v. Coats, 916 F.3d 327, 2019 A.D. Cases 53,413 (4th Cir. 2019). Panel: THACKER, Quattlebaum [GREGORY, dissenting in part]. Claim on Appeal:1. Rehabilitation Act reasonable accommodation. 2. Rehabilitation Act medical examination. 3. Rehabilitation Act confidential medical information. 4. Rehabilitation Act hiring. FMLA claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. 4. Affirmed [defendant]. Grounds: 1. Modified schedule and Employee Assistance Program (EAP) referral constituted a reasonable accommodation. Although Hannah argued that the accommodations were inadequate, different than what she requested, or delayed, the employer “has the ultimate discretion to choose between effective accommodations” and that the “Rehabilitation Act does not require an employer to provide the exact accommodation that an employee requests.” 2. EAP referral was not a medical examination under 42 U.S.C. § 12112(d)(4)(A). “EAP’s policies make clear that EAP is intended to be used as a voluntary counseling service, and not as a mandatory medical examination” and “Hannah’s EAP counselor repeatedly stated that she did not conduct a medical examination.” Alternatively, the panel majority holds that Hannah’s referral to EAP was permissible because it was “job-related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A). The agency “had a reasonable belief that Hannah’s ability to perform the essential functions of her job was impaired by her repeated issues with attendance and timely reporting.” 3. Plaintiff alleged that “Hannah’s supervisors wrongfully sought and disclosed confidential medical information elicited from Hannah, and second, that the EAP psychologist wrongfully disclosed confidential medical information gathered from the EAP session to Hannah’s supervisors,” in violation of 42 U.S.C. § 12112(d)(3)(B) and (4)(B). But “Hannah voluntarily disclosed her depression diagnosis to her supervisors” and the “Rehabilitation Act does not protect information shared voluntarily.” Moreover, there was supposedly no evidence that “the inquiring supervisor knew she was depressed and knew her attendance issues were linked to her depression …. [T]he ADA does not require an employer to simply ignore an employee’s blatant and persistent misconduct, even where that behavior is potentially tied to a medical condition.” Although “the EAP psychologist shared some information with Hannah’s supervisors and maybe it was unique information,” the panel majority also holds that it was not protected “medical information.” And “even if either Hannah’s supervisors or the EAP psychologist disclosed Hannah’s medical information, Appellee still did not violate the Rehabilitation Act because Appellee did not rely on Hannah’s depression diagnosis or any other medical information in deciding not to hire Hannah for the Cyber position.” 4. No genuine dispute of material fact about pretext for denial of the Cyber position. “Hannah’s perpetual issues with attendance, timeliness, and reporting absences to her superiors were the bases of its decision not to hire her for the permanent position.” The principal decisionmaker focused entirely on performance-related issues in his communications and there was no evidence that he knew about Hannah’s disability status. “The record evidences no less than 13 attendance issues that occurred in the 46 days between Appellee’s first attempt to accommodate Hannah on March 19, 2015, and the revised plan made on May 4, 2015.” The agency was “permitted to take Hannah’s attendance issues into account in its decision whether to hire her for the Cyber position.

Parker v. Reema Consulting Services, Inc., 915 F.3d 297, 2019 FEP 42,349 (4th Cir. 2019). Panel: NIEMEYER, Agee [DIAZ, dissenting in part]. Claim on Appeal: 1. Title VII harassment (sex). 2. Title VII retaliation. 3. Title VII termination (sex). Disposition Below: 1. Dismissal for failure to state a claim, FRCP12(b)(6) [defendant]. 2. Dismissal for failure to state a claim, FRCP12(b)(6) [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. 3. Affirmed [defendant]. Grounds: 1. A false rumor that a female employee slept with her male boss to obtain promotion can create employer liability under Title VII for discrimination “because of sex,” where the employer is charged with participating in the circulation of the rumor and acting on it by sanctioning the employee. “Parker, a female subordinate, had sex with her male superior to obtain promotion, implying that Parker used her womanhood, rather than her merit, to obtain from a man, so seduced, a promotion. She plausibly invokes a deeply rooted perception – one that unfortunately still persists – that generally women, not men, use sex to achieve success. And with this double standard, women, but not men, are susceptible to being labelled as ‘sluts’ or worse, prostitutes selling their bodies for gain.” Plaintiff alleged severe or pervasive harassment. According to the complaint, “[t]he harassment related to the rumor was all-consuming from the time the rumor was initiated until the time Parker was fired.” Moreover, there were physically threatening elements: “At an all-staff meeting at which the rumor was discussed, the warehouse manager slammed the door in Parker’s face, and at another meeting, he screamed at Parker as he lost his temper while blaming Parker for the rumor.” It was also humiliating and interfered with her work. 2. Because the complaint alleges a plausible claim of a hostile work environment based on sex, in violation of Title VII, there can also be a retaliation claim. 3. Claim was not listed in EEOC charge.

EEOC v. McLeod Health, Inc.914 F.3d 876 (4th Cir. 2019). Panel: FLOYD, Gregory, Keenan. Claim on Appeal: ADA medical exam (42 U.S.C. § 12112(d)(4)(A)) and termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Genuine dispute about whether navigating the hospital campuses was an essential function of the job. Hospital supposedly ordered the medical exam and later fired her “because it reasonably believed, based on objective evidence, that [the employee Whitten] could not navigate to or within its medical campuses without posing a direct threat to herself.” Among other contrary evidence, “McLeod’s own written description of Whitten’s position contains no mention of navigating to and from company events or conducting in-person interviews.” Additionally, Whitten testified that “although she collected better content by attending company events and conducting in-person interviews, she did not think that either was ‘necessarily’ a requirement of her job.” Indeed, “Whitten was able to conduct interviews and collect other forms of content over the phone.” Moreover, “[a] reasonable jury could conclude that when McLeod required Whitten to take a medical exam, the company lacked a reasonable belief – based on objective evidence – that Whitten’s medical condition had left her unable to navigate to and within the company’s campuses without posing a direct threat to her own safety.” Interpreting the record in the light most favorable to the EEOC, “it was not reasonable for McLeod to believe that she had become a direct threat to herself on the job simply because (a) she had fallen multiple times recently and (b) her manager thought she looked groggy and out of breath.”

Stewart v. Iancu, 912 F.3d 693 (4th Cir. 2019). Panel: WYNN, Gregory, Motz. Claim on Appeal: Title VII and Rehabilitation Act discrimination, harassment and retaliation. Disposition Below: Dismissed for lack of subject matter jurisdiction, FRCP12(b)(1) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Allegedly premature filing of civil action before 180 days had run on complaint is not jurisdictional defect. Reconsidering order under Rule 12(b)(6) standard, filing an amended complaint at the EEOC does not restart 180-day-clock for filing civil action under 42 U.S.C. § 2000e-16(c) and 29 C.F.R. 1614.407(b).

Netter v. Barnes, 908 F.3d 932, 131 FEP 65 (4th Cir. 2018). Panel: MOTZ, Gregory, Diaz. Claim on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: While the “participation” clause of Title VII’s retaliation section broadly protects employees who have “participated in any manner in an [EEOC] investigation, proceeding, or hearing under this subchapter” – which may include steps to “gather evidence for a bona fide Title VII claim” – the line is drawn at unlawful surveillance: “We cannot conclude that Netter’s unauthorized inspection and copying of the personnel files constituted protected participation activity for a straightforward reason. She violated a valid, generally-applicable state law. Netter does not meaningfully dispute that these actions, standing alone, violated N.C. Gen. Stat. § 153A- 98(f), which establishes a Class 3 misdemeanor for ‘knowingly and willfully examin[ing], remov[ing,] or copy[ing] any portion of a confidential personnel file’ without authorized access.” No supremacy clause issue is presented by this case because, the Fourth Circuit holds, federal and state law are not in opposition. Plaintiff also argued that disclosure of the files also constituted “opposition” to discriminatory practices, under the “opposition” clause. But the panel summarily rejects this claim: “Under the opposition clause, unauthorized disclosures of confidential information to third parties are generally unreasonable …. Netter attempts to justify her conduct on the basis that she reasonably believed the county investigator had a right to access employee personnel files. Even if she is correct as to the disclosures, however, Netter’s review of the files, which she lacked permission to access for this purpose, falls decidedly outside the scope of reasonable opposition.”

Ott v. Maryland Dep’t of Public Safety and Correctional Serv’s909 F.3d 655 (4th Cir. 2018). Panel: GIBNEY, Agee, Floyd. Claim on Appeal: Rehabilitation Act. Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: For borrowed limitations period, Maryland amended its Fair Employment Practices Act (“MFEPA”) to align more closely with the Rehabilitation Act. Thus, the amended MFEPA qualifies as the most analogous Maryland law to the Rehabilitation Act. The MFEPA’s two-year statute of limitations applies and bars the claims. No equitable tolling based on “claims that [plaintiff] did not, and could not, know that the MFEPA would supply the statute of limitations for her claims” instead of three year period applied by some courts and the Fourth Circuit itself in a non-precedential opinion.

Ray v. Int’l Paper Co., 909 F.3d 661, 131 FEP 87 (4th Cir. 2018). Panel: KEENAN, King, Gibney. Claim on Appeal: 1. Title VII harassment (sex). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. Plaintiff presented genuine dispute of material fact that denial of voluntary overtime was a “tangible employment action” that rendered company strictly liable for supervisor’s alleged harassment. “Prior to [the supervisor’s] action, [plaintiff] regularly was permitted to work for four hours before her shift, earning around $24.00 per hour instead of her normal rate of $16.25 per hour. [She] explained that these almost daily voluntary overtime hours were a ‘significant part of [her] earnings.'” This was despite that plaintiff “received a greater amount of overtime hours in 2015 than she received in 2014,” because these hours were expended covering for absent employees rather than voluntary hours. There was also a genuine dispute of material fact about nexus between plaintiff repelling sexual advances and tangible employment action; alleged harasser made the decision and plaintiff testified that harasser repeatedly had offered her money in exchange for sex. “On one occasion after eliminating her ability to perform voluntary overtime work, [the harasser] asked [plaintiff] whether she wanted to make extra money and told her to meet him after work.” 2. No dispute that plaintiff was engaged in protected activity when she complained to another supervisor about harassment. Decrease in income due to loss of voluntary overtime constituted an adverse employment action. There was also evidence of causation: that she lost overtime shortly after making complaints to the other supervisor.

Savage v. State of Md., 896 F.3d 260, 130 FEP 1716 (4th Cir. 2018). Panel: HARRIS, Wynn, Floyd. Claim on Appeal: 1. 42 U.S.C. §§ 1981, 1983, and 1985 harassment (race). 2. Title VII retaliation. First Amendment claim (not discussed here). Disposition Below: 1. Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. 2. Motion to dismiss for failure to state a claim denied, FRCP12(b)(6) [plaintiff]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [defendant]. Grounds: 1. Alleged harassment that occurred when white prosecutor read evidence to Black police officers that include repeated racial epithets as part of trial preparation covered by absolute prosecutorial immunity under Imbler v. Pachtman, 424 U.S. 409 (1976), Argument that it was “unnecessary” for the prosecutor to read the slurs out loud does not obviate privilege: “how evidence should be evaluated is exactly the kind of professional judgment call that prosecutorial immunity is designed to protect.” Although immunity only applies to legal relief, no injunction can lie against the defendant in his personal capacity. 2. Plaintiff could not have reasonably believed that the reading of the offensive document states a claim for race harassment where “the document is germane to the meeting at which it is read; and dealing with such documents is part of the complaining employee’s job.”

Strothers v. City of Laurel, Md., 895 F.3d 317, 130 FEP 1673 (4th Cir. 2018). Panel: GREGORY, Diaz, Harris. Claim on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff made out a prima facie case of retaliation on both elements. On the first element, protected activity, plaintiff announced (before she was fired) that she intended to file a complaint about the hostile work environment. “[O]ur inquiry is whether the circumstances known to [her] at the time of her complaint support a reasonable belief that a hostile work environment existed or was in progress.” The panel holds that the alleged conduct persistent enough to at least arguably constitute harassment: “When [the alleged harasser] accused [plaintiff] of violating the dress code, [she] circled [plaintiff], lunged at her, and grabbed her pants without seeking permission. Further, [the harasser] tracked [plaintiff] every movement in the office, requiring [plaintiff] to obtain permission even to relieve herself in the restroom. Evidence also shows that [harasser considered [plaintiff] late even on days when she arrived before the office’s 9:00 a.m. opening.” Plaintiff also had reason to believe that the harassment was racially motivated, in light of being told that the manager-harasser wanted a candidate of a “different race.” “[Plaintiff’s] employer injected [Plaintiff’s] race into the equation and gave her reason to think that her race was relevant to the harassment she was experiencing.” She also heard from other Black employees with similar complaints with [harasser]. “[Plaintiff] was also aware that she was the only black subordinate employee and that she was the only one whom [harasser] chose to surveil and scrutinize.” The district court erred by weighing the evidence in favor of the movant, and giving the “different race” comment an innocent construction, i.e., “that [harasser] preferred the white candidate for legitimate reasons; it was only coincidental that the preferred candidate happened to be white.” Holds the panel, “[the director’s] comment about [harasser’s] hiring preference creates at least some ambiguity as to her true motivations, and the jury is not required to believe [harasser’s] rationalization.” Jury could find “that [harasser’s] actions were sufficiently severe or pervasive as to alter the terms or conditions of [Plaintiff’s] employment and create an abusive environment.” Plaintiff alleged that the harasser directly affected the terms and conditions of employment by altering her schedule, compelling her to report her comings and goings, and ordering that she go home to change her casual-Friday outfit. To impute liability to the company, there was a dispute about whether harasser was a “supervisor” for Title VII purposes under Vance v. Ball State Univ., 570 U.S. 421 (2013). “However, because [Plaintiff] is seeking to prove retaliation, rather than an actual hostile environment claim, she need only show that it was reasonable for her to believe that [harasser] was her supervisor.” And even if she were not a supervisor, plaintiff still had reason to believe that the City failed to investigate her complaints or otherwise exercise due care over the situation. “It cannot be seriously disputed that [Plaintiff] diligently kept the City informed of every aspect of [the] harassment, through numerous phone calls, emails, meetings, and detailed memoranda, throughout the duration of her employment …. Despite [Plaintiff’s] memo and other efforts reporting the harassment, the City neither reassigned [Plaintiff], as she requested, nor took lesser steps to investigate or prevent the alleged harassment.” Finally, regarding causation, the panel holds that the one-day period between the plaintiff announcing that she was going to file a formal complaint and her termination would allow a jury to infer that the two were related. Moreover, even if the employee did not explicitly state “race” in her communications, the City had ample reason to understand this is what she meant.”The City should have known that the alleged harassment and hostile environment pertained to racial discrimination given what it knew about [harasser] and her relationship with [Plaintiff]. Quite simply, [the] Director … was the one who pointed out that [harasser] wanted to hire someone of a ‘different race’ when [Plaintiff] complained about how [harasser] was treating her. In doing so, [the Director] suggested that [Plaintiff’s] race was relevant to the harassment.”

EEOC v. Md. Ins. Admin., 879 F.3d 114, 130 FEP 1082 (4th Cir. 2018). Panel: KEENAN, Floyd (WILKINSON, dissenting). Claim on Appeal: Equal Pay Act. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: On prima facie case, agency failed to prove as a matter of law that the male agents were not comparable to the women. That the men “were hired at higher step levels than at least one of the claimants, allegedly based on their background experience, relevant professional designations, and licenses or certifications” would be “relevant only to any affirmative defense asserted by MIA….” On the factor other than sex issue affirmative defense, in a matter of first impression, court agrees with the Third and Tenth Circuits that the employer’s burden on its affirmative defense is to show not only that a “factor other than sex” could have motivated a pay differential, but actually did motivate it. First reason, gender-neutral civil-service compensation scale, does not support summary judgment: “MIA exercises discretion each time it assigns a new hire to a specific step and salary range based on its review of the hire’s qualifications and experience. A fact finder faced with the present record could have determined that, when exercising this discretion, MIA at least in part based its assignment of the claimants’ step levels on their gender with a resulting diminution of their assigned starting salary.” Second reason, “the experience and qualifications of the comparators and the claimants,” with the men having prior tenure with the state or (in one case) 20 years of law enforcement background, does not support summary judgment where “the record does not contain any contemporaneous evidence showing that the decisions to award Hurley, Jacobs, and Pennington their respective starting salaries were in fact made pursuant to their aforementioned qualifications.”

EEOC v. CONSOL Energy, Inc., 860 F.3d 131 (4th Cir. 2017). Panel: HARRIS, Niemeyer, Traxler. Claim on Appeal: Title VII reasonable accommodation [religion]. Disposition Below: Judgment after a jury trial ($150,000 in compensatory damages for emotional distress, $436,860 in back pay) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Plaintiff opposed use of hand scanner based on religious beliefs. “At bottom, Consol’s failure to recognize this conflict – in its dealings with Butcher as well as its litigation of this case – appears to reflect its conviction that Butcher’s religious beliefs, though sincere, are mistaken … [Yet i]t is not Consol’s place as an employer, nor ours as a court, to question the correctness or even the plausibility of Butcher’s religious understandings … So long as there is sufficient evidence that Butcher’s beliefs are sincerely held – which the jury specifically found, and Consol does not dispute – and conflict with Consol’s employment requirement, that is the end of the matter.” Plaintiff suffered adverse employment action, because though he retired voluntarily and was not fired for refusing to abide by the scanner requirement, he was put to intolerable choice – violate religious beliefs or quit – which constituted a “constructive discharge.” Panel affirms the district court’s exclusion – even after some testimony slipped through – of evidence that the plaintiff supposedly did not avail himself of the union’s grievance process to cure the problem. The employer’s duty was to provide the accommodation upon request, the panel holds, not wait until impelled to do so by an arbitrator’s award. The district court “directed the jury to disregard all testimony related to the grievance process … Consol offers no reason to believe that the jury here ignored the curative instruction or otherwise was confused, in a way that prejudiced Consol, by the grievance evidence introduced on the first day of trial.” District court did not abuse its discretion in returning the jury to deliberate damages, when it may have erroneously included lost back pay in the award. “[O]n its initial verdict form, where directed to ‘[s]tate the amount of compensatory damages you award,’ the jury filled in ‘salary plus bonus & pension, court cost.'” To rectify possible misunderstanding or mistake, the district court retains discretion under Federal Rule 49(b)(3) “to determine whether the damages verdict ‘reflects jury confusion or uncertainty,’ and, if it does, to ‘clarify the law governing the case and resubmit the verdict for a jury decision.'” Back pay award did not have to be offset by pension payments that plaintiff received, holding that such payments fall within the “collateral source” rule. On the EEOC’s cross-appeal, panel affirms the decision to grant judgment as a matter of law on punitive damages. “‘[Whatever inference’ might arise from Consol’s general awareness of its religious accommodation obligations, J.A. 903, there was no similar evidence to suggest that Consol subjectively appreciated a risk that it failed to meet those obligations by offering Butcher an alternative that did not require scanning of his right hand.”

Villa v. CavaMezze Grill, LLC, 858 F.3d 896, 130 FEP 247 (4th Cir. 2017). Panel: TRAXLER, Motz, Agee. Claim on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: “If an employer, due to a genuine factual error, never realized that its employee engaged in protected conduct, it stands to reason that the employer did not act out of a desire to retaliate for conduct of which the employer was not aware.” Knowingly fabricating an allegation relating to a Title VII violation is not protected activity under opposition clause. Where employer concludes erroneously that employee fabricated complaint, termination based on alleged fabrication is not motivated by retaliation and does not violate Title VII.

Abilt v. Central Intelligence Agency, 848 F.3d 305, 33 A.D. Cases 417 (4th Cir. 2017). Panel: FLOYD, Wynn, Harris. Claim on Appeal: Rehabilitation Act and Title VII discrimination and reasonable accommodation. Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Upholding invocation of state-secret privilege. Based on the nature of plaintiff’s claims, litigation of case would reasonably require disclosure of information regarding (inter alia) the specific CIA programs on which plaintiff worked; the identities of CIA officers; the job titles, duties, and work assignments of plaintiff, his coworkers, and his supervisors; the criteria for making work assignments; the sources and methods used by the CIA; the targets of CIA intelligence collection and operations; the training preparations required to send a CIA officer overseas; and the location of CIA covert facilities. That plaintiff commits not to use privileged materials is not determinative; agency entitled to proffer legitimate, nondiscriminatory reasons for its actions. If those reasons are properly privileged- as is the case here-then the case must be dismissed.

Guessous v. Fairview Property Investments, LLC, 828 F.3d 208, 129 FEP 475 (4th Cir. 2016). Panel: GREGORY, Traxler, Diaz. Claim on Appeal: 1. Title VII and § 1981 retaliation. 2. Title VII (pregnancy, national origin, religion, race) and § 1981 reassignment and termination. 3. Title VII harassment (race). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. 3. Reversed [plaintiff]. Grounds: 1. To establish liability in retaliation cases under Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013), “a cause need not work in isolation to be a but-for cause” (citing Burrage v. United States, 134 S. Ct. 881, 888 (2014)). Plaintiff alleged that she was fired 75 minutes after complaining to supervisor about discrimination. The employer offered lack of work as its reason. It is not necessary on summary judgment for plaintiff to “squarely rebut” this explanation, but simply to “demonstrat[e] a genuine dispute of material fact on the question of pretext sufficient to make [the employer’s] proffered justification a triable issue.” District court erred in holding that the employer’s proffered reason was conclusively established by its failure to replace plaintiff. While plaintiff’s job might not have been “an absolute necessity,” nevertheless a “reasonable jury could easily conclude, however, that the termination decision was made only seventy-five minutes after [complaint] about past comments and treatment, and that it was therefore motivated by the complaint itself.” Were the suspicious timing not enough, the employer presented no record evidence to support its claim: “no emails, no meeting minutes, no performance reviews, nothing.” 2. Because plaintiff wasn’t replaced, a modified version of the standard McDonnell Douglas test applied to this case: plaintiff “required to show that her job duties were absorbed by employees not in the protected class or otherwise show that Fairview did not treat [her] protected characteristics neutrally when deciding to terminate her.” Because her duties were absorbed by non-Arab, non-Muslim coworkers, this element was satisfied. Plaintiff not necessarily required to present addition al, independent evidence of discrimination. The absence of admissible evidence by the employer supporting its alleged legitimate, non-discriminatory reason was enough, augmented by evidence that other employees, equally un-busy, got to keep their jobs without explanation. Finally, a jury could consider the many disparaging things that supervisor, the decision maker, said about Arabs and Muslims. 3. District court erred that “discrete” events such as termination “cannot comprise part of a hostile work environment claim” for timing purposes. “So long as the act is part of the pattern of discriminatory treatment against the employee, then that act should be sufficient for purposes of the continuing-violation doctrine, even if the act would otherwise qualify as a discrete act that is independently actionable. Court holds, in an issue of first impression for the circuit, that the Morgan continuing-violation framework applied equally to harassment under § 1981. The district court also erred by applying “an overly cramped view of what constitutes race-based conduct,” when it held that only the “camel people” remark was racial, ignoring the many other comments about the plaintiff’s Arab ethnicity. “The district court put itself in the place of the jury when it decided that only one of the remarks was racial. The court said the remaining comments ‘were references to and questions about Islam and Moroccan culture,’ but a jury might well decide they were also motivated by broader ethnic animus …. After all, [supervisor] regularly interchanged his harassment of Guessous, referring to Muslims, Moroccans, Palestinians, Egyptians, Middle Easterners, and North Africans.” Genuine dispute of material fact about whether the harassment was severe or pervasive. Along with the heavy volume of comments, there was also the heightened scrutiny of her work, which made plaintiff feel like a criminal. “The evidence suggests [supervisor] thought [plaintiff] was untrustworthy-and intended to make that clear to her-from the moment she disclosed her origins to him at their initial meeting. A jury would certainly be entitled to reach that conclusion.”

Vannoy v. Federal Reserve Bank of Richmond, 827 F.3d 296, 32 A.D. Cases 1509 (4th Cir. 2016). Panel: AGEE, Wynn, Schroeder. Claim on Appeal: ADA termination and reasonable accommodation. FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No genuine dispute of material fact that plaintiff was terminated for legitimate, non-discriminatory reasons (being AWOL, failure to communicate properly about unscheduled absences, failure to complete the employee portion of the performance improvement plan).

EEOC v. Maritime Autowash, Inc., 820 F.3d 662, 129 FEP 1 (4th Cir. 2016). Panel: WILKINSON, Norton (NIEMEYER, concurring in the judgment). Claim on Appeal: Subpoena enforcement action. Disposition Below: Enforcement denied [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: EEOC’s subpoena, designed to investigate undocumented worker’s Title VII charges, is enforceable. Charging party was employee, and nothing bars undocumented workers from filing complaints. EEOC’s investigation of employee’s charges was therefore at least plausibly and arguably related to the authority that Congress conferred upon the Commission. Reviewing court need not ascertain whether underlying charge of discrimination is valid.

Gentry v. East West Partners Club Mgt. Co, Inc.816 F.3d 228, 32 A.D. Cases 1128 (4th Cir. 2016). Panel: FLOYD, Agee, Thacker. Claim on Appeal: ADA termination. Disposition Below: Judgment after a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No error in instructing jury on ADA. Title I ADA discrimination evaluated on a “but-for” causation standard (joining Sixth and Seventh Circuits). Because plaintiff did not object to instruction on “substantially limits” definition, court reviewed only for plain error, and plaintiff failed to show a reasonable probability that any supposed error affected her substantial rights. Instruction on regarded-as prong did not prejudice plaintiff; because her primary evidence of disability discrimination was that manager allegedly stated that plaintiff was terminated “due to her disability,” had jury credited that statement, employer would have been liable even under higher standard (evidently jury did not credit plaintiff’s testimony on this point). Waived challenge to “record-of” instruction.

Bauer v. Lynch, 812 F.3d 340, 128 FEP 978 (4th Cir. 2016). Panel: KING, Harris, Hazel. Claim on Appeal: Title VII termination (reverse sex). Disposition Below: Summary judgment for plaintiff [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Not a violation of Title VII for employer to maintain differential fitness standards for men and women, where test “assesses an overall level of physical fitness, and equally fit men and women possess innate physiological differences that lead to different performance outcomes.” Court remands for consideration of plaintiff’s arguments that the differential standards (1) are not predicated on any physiological differences between the sexes; (2) impose an undue burden of compliance on male Trainees compared to female Trainees; or (3) are inconsistent with the minimum performance requirements for Special Agents of the FBI.

DeMasters v. Carilion Clinic, 796 F.3d 409, 127 FEP 1396 (4th Cir. 2015). Panel: KRAUSE, Ambro, Barry. Claim on Appeal: Title VII retaliation. Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff state claim for retaliation where he alleges, in his capacity as an employee assistance program consultant that he was fired for acting “contrary to his employer’s best interests,” failing to take the “pro-employer side,” and leaving his employer “in a compromised position,” as a result of his support of a fellow employee’s sexual harassment complaint and his criticism of the way the employer had handled the investigation. District Court erred by examining plaintiffs numerous communications with employer (on behalf of an alleged victim of harassment) as if they were each discrete incidents rather than as a continuous course of oppositional conduct. Touchstone is whether the plaintiff’s course of conduct as a whole (1) “communicates to her employer a belief that the employer has engaged in . . . a form of employment discrimination”; and (2) concerns subject matter that is “actually unlawful under Title VII” or that the employee “reasonably believes to be unlawful.” Plaintiff alleges that he actively and deliberately communicated to employer both harassment victim’s complaints and his own opinion that these complaints were not properly handled, offered to share ideas about how they could be better handled, and made persistent efforts to help victim initiate his harassment complaint. Panel also rejects “manager rule” to opposition clause.

Butler v. Drive Automotive Indus. of Am., Inc., 793 F.3d 404, 127 FEP 1049(4th Cir. 2015). Panel: FLOYD, Kennan, Harris. Claim on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Adopting joint-employer doctrine to resolve which entity or entities were “employer” of plaintiff. Circuit chooses the “hybrid” test, but modifies factors to include the following: (1) authority to hire and fire the individual; (2) day-to-day supervision of the individual, including employee discipline; (3) whether the putative employer furnishes the equipment used and the place of work; (4) possession of and responsibility over the individual’s employment records, including payroll, insurance, and taxes; (5) the length of time during which the individual has worked for the putative employer; (6) whether the putative employer provides the individual with formal or informal training; (7) whether the individual’s duties are akin to a regular employee’s duties; (8) whether the individual is assigned solely to the putative employer; and (9) whether the individual and putative employer intended to enter into an employment relationship.

Pryor v. United Air Lines, Inc., 791 F.3d 488, 127 FEP 801 (4th Cir. 2015). Panel: GREGORY, Motz, Davis. Claim on Appeal: Title VII and § 1981 harassment (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Genuine dispute of material fact on whether anonymous harassment was sufficiently severe, and whether liability could be imputed to the company. On the issue of severity, the court considered four factors decisive: (1) “the use of “the word ‘n[****]r’ is pure anathema to African-Americans”; (2) “the offensive language was made still more severe ‘by virtue of the presence of a clear element of violence’ manifested by the threats inherent in a ‘hunting license’ and the image of a lynching”; (3) “the location where Pryor discovered the threats” was a supposedly “secure mailroom at a major airport – a space with access ostensibly limited to coworkers and others with company authorization”; and (4) the background of other racist comments. On the issue of the employer’s responsibility for the harassment, the panel notes: “[I]nstances of anonymous harassment pose unique challenges to companies that must work both to identify the perpetrator and to protect victims from a faceless, though ominous, threat. But on the other hand, an employer maintains a responsibility to reasonably carry out those dual duties of investigation and protection. The anonymous nature of severe threats or acts of harassment may, in fact, heighten what is required of an employer, particularly in circumstances where the harassment occurs inside a secure space accessible to only company-authorized individuals.” While second round of threats were met by an adequate company response, genuine dispute whether response to first threat was prompt and reasonably calculated to end the harassment. “United supervisors did not call police, even though police later suggested that they should have. They did not escalate the matter to the ESC, in apparent violation of the company’s H&D policy. [fn. omitted] They did not inform corporate security of the racist message on the fliers previously discovered in the break room. They did not promptly install cameras or other monitoring devices. They did not provide Pryor with addition al security or protective measures. They did not obtain fingerprints, do other forensics analysis, or interview co-workers. And they remarkably did not inform Pryor when their investigation closed, an event that occurred without management having sent any correspondence to employees to solicit information and/or put them on notice that the company was being vigilant in monitoring the workplace.” Company’s alleged resistance to police involvement and that it is “significant, albeit not dispositive, that United’s response to the first threat was ineffectual in stopping the harassing conduct, as the notes reappeared months later in greater number.” The district court also erred in putting the burden on Pryor to prove that addition al measures would have prevent later harassment.

Reyazuddin v. Montgomery County, Maryland, 789 F.3d 407, 31 A.D. Cases 1265 (4th Cir. 2015). Panel: DIAZ, Traxler , Thacker. Claim on Appeal: 1. Rehabilitation Act reasonable accommodation. 2. Rehabilitation Act termination. 3. ADA Title II. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. 3. Affirmed [defendant]. Grounds: 1. Genuine dispute of material fact about whether county could have reasonably accommodated blind employee in call center (MC311) by adopting software that operated with reader. Plaintiff established through her expert that other public employers were able to make comparable systems accessible with a custom solution or by operating simultaneously in high-interactivity and standard-interactivity modes. While the county contended that its system required high-interactivity, the record was “silent about the productivity of employees operating in standard-interactivity mode.” Moreover, a county employee testified that plaintiff “certainly has the knowledge, skills and abilities” to perform the essential functions of the MC311 job. County also failed to reassign to other full-time work. While allowed to keep title, pay and benefits, she was offered only part-time tasks consisting of “make-work.” county did not make out a defense of “undue hardship” as a matter of law. The district court erred by weighing and accepting the defense expert’s cost estimate as more credible. District court also erred by exalting cost over every other factor, despite that the relevant sections (42 U.S.C. §§ 12111(10)(B) and 12112(b)(5)(A)) provide a non-exhaustive list of four factors to consider. “For instance, the district court’s analysis does not mention the number of employees at MC311 (forty-nine) or the considerable savings the County realized from creating a centralized call center ($10 million).” The county also failed to make a record that the proposed accommodation would degrade public services. County’s budget for reasonable accommodations (only $25,000) an irrelevant factor. 2. Genuine dispute of material fact about whether the county discriminated against plaintiff by not transferring her to MC311. The panel notes that the county “has not offered any other nondiscriminatory reason for not transferring Reyazuddin,” other than undue hardship. “Because we hold that a genuine issue for trial remains on the County’s undue hardship defense, that same issue precludes summary judgment for the County under the McDonnell Douglas framework.” 3. Title II did not create a cause of action for discrimination in public employment.

Adams v. Anne Arundel County, Maryland, 789 F.3d 422, 31 A.D. Cases 1275 (4th Cir. 2015). Panel: WILKINSON, Traxler, Floyd. Claim on Appeal: ADA discrimination, reasonable accommodation and retaliation. FMLA claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Upbraiding by principal, school Board’s pursuit of its obligation to investigate hallway incident with student, and the statutorily permitted medical examinations did not constitute adverse employment action. Transfer to less stressful school environment was not discriminatory where it was consistent with the recommendations of the doctors who had examined him, the transfer was implemented in a prompt manner (four months) – and in light of plaintiff’s stress disorder – the transfer was an appropriate placement. Plaintiff did not complain at the time and did not seek a transfer. Salary decrease of $1,031 was due to operation of collective bargaining agreement.

Foster v. Univ. of Maryland-Eastern Shore, 787 F.3d 243, 127 FEP 167 (4th Cir. 2015). Panel: FLOYD, Keenan, Wynn. Claim on Appeal: 1. Title VII retaliation. 2. Title VII termination (sex). 3. Title VII harassment (sex). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Nassar did not change or rescind the McDonnell Douglas prima-facie test or pretext examination. Rejects suggestion that employee must establish but-for causation before the employer responds with a legitimate, non-discriminatory reason for its adverse action. Evidence of causation include admission by HR director that “everything that ever happened [Foster] attributed to the sexual harassment complaint,” and she “couldn’t move on” or “get past [the harassment].” Also, temporal proximity and sequence of retaliatory actions. Plaintiff presented sufficient evidence of pretext for her termination, supposedly for performance reasons, including that (i) plaintiff’s immediate supervisor and the department scheduler both testified that she was not inflexible in scheduling; (ii) supervisor testified that there was no documentation of plaintiff’s supposed inflexibility in her personnel file; (iii) plaintiff’s immediate supervisor testified that she had been given permission to edit the office forms and that another supervisor had initially praised her work; (iv) plaintiff’s immediate supervisor repeatedly praised her work and discussed promoting her to corporal before she made her sexual harassment; and (v) the University did not initially provide plaintiff with a reason for her termination. 2. Plaintiff failed to establish that her replacement was comparably qualified; plaintiff conceded that he was better qualified. 3. No genuine issue of law that harassment by coworker could not be imputed to employer. Employer took prompt and effective corrective measures. Although plaintiff argued that employer was on prior notice of the harassment based on a prior employee’s complaint, it was undisputed that the prior complaint was held unfounded both after an internal review and a state civil-rights agency’s investigation.

Brown v. Nucor Corp., 785 F.3d 895, 126 FEP 1793 (4th Cir. 2015). Panel: GREGORY, Kennan (AGEE, dissenting). Claim on Appeal: Title VII pattern-or-practice pay and promotion, disparate impact, and harassment class action (sex). Disposition Below: Class action decertified [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: On remand from Brown v. Nucor Corp., 576 F.3d 149 (4th Cir. 2009). Plaintiffs’ expert found a “disparity in promotions” at a “statistically significant at 2.54 standard deviations from what would be expected if race were a neutral factor.” Record had anecdotal evidence of race bias by 16 named plaintiffs and putative class members, a history of pervasive racial harassment of black employees (slurs, racist emails, a noose, etc.), and the company’s alleged failure to address complaints of racial discrimination and harassment. Holding that district court misapplied Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), and erred in holding that the plaintiffs failed to present a common issue of discrimination as required by Rule 23(a)(2) – due to supposed deficiencies in the statistical evidence, absence of other common evidence of discrimination and injury, and management’s discretionary decision-making structure – and lack of predominance 23(b)(3). Plaintiffs’ proof met “the analytical rigor required to evaluate a plaintiff’s statistical evidence of commonality at the class certification stage.” To build a data set without job bidding records (which Nucor destroyed), the plaintiffs’ expert statistician “developed an alternative benchmark that uses 27 relevant ‘change-of-status’ forms – filled out when an employee changes positions at the plant – to extrapolate promotions data.” The data, holds the majority, is “reliable and probative of discrimination.” Plaintiffs also provided “significant proof” of a “general policy of discrimination” and “common injury.” Notes three key distinctions in this respect between Dukes and the present case: (1) While the Wal-Mart “the statistics failed to show discrimination on a store-by-store basis,” for a class involving possibly 1.5 million members, the plaintiff class numbered only 100 (possibly as many as 150) in a single location. (The district court also erroneously disregarded evidence that the discriminatory practices pervaded the plant, and treated the different Nucor departments as autonomous.) (2) While the plaintiffs’ expert in Dukes supposedly “could not with specificity determine how the [gender-biased] culture concretely influenced individual employment decisions,” plaintiffs presented a record of “unadulterated, consciously articulated, odious racism throughout the Nucor plant.” (3) The “anecdotal evidence of discrimination in this case is substantially more probative than” Dukes, where the 16 witnesses made up a substantial percentage of the class. Court discredits the weight of 80 so-called “happy camper” declarations (witnesses claiming not to have seen discrimination), where “the affidavits do little to rebut the evidence of discrimination insofar as they were given under potentially coercive circumstances, where the company reserved its ability to use them against other employees in any future lawsuit.” Moreover, “company’s policy of discretionary decision-making” is a valid factor in bolstering a common issue for certification. Plaintiffs presented significant evidence that the managers and executive who held the levers of plant promotion decisions were personally biased against blacks, thought them inferior employees and even expressed an intent never to promote them. District court erred in holding that the common issues did not predominate (Rule 23(b)(3)). Although Nucor and the dissent both vehemently contend that the plaintiffs forfeited this argument by not making it in the opening brief on appeal, the majority holds that “no waiver occurred because their arguments in the opening brief extended to the district court’s discussion of both predominance and commonality.” Further, waiver is a discretionary doctrine on appeal, and that “[g]iven the briefing presented, the fully developed record below, and the lack of any showing of unfairness or prejudice, there is simply no reason why we should exercise our discretion to discard years of litigation on appeal because of an in artful opening brief.” Finally, the majority observes that the district court erred in the first instance by revisiting the Rule 23(b)(3) predominance finding, “given this Court’s remand instructions and mandate in Brown I. Unlike the requirement of commonality under Rule 23(a)(2) discussed above, Wal-Mart did not change, nor purport to change, the Rule 23(b)(3) analysis.”

Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 126 FEP 1637 (4th Cir. 2015). Panel: KING, Traxler, Motz, Gregory, Shedd, Duncan, Kennan, Wynn, Diaz, Floyd, Thacker, Harris (WILKINSON, Agee, concurring and dissenting) (NIEMEYER, dissenting). Claim on Appeal: 1. Title VII and §1981 harassment. 2. Title VII and §1981 retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant] Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. Employee who had three separate confrontations with co-worker (Clubb) over two days presented genuine issue of material fact about severe harassment. “[Clubb] came so close to Liberto that Liberto could feel Clubb’s breath on her face as Clubb stood at Liberto’s side. Indeed, continuing to yell at Liberto, Clubb sprayed Liberto’s face with saliva. Clubb’s message was that Liberto should have neither walked through the kitchen nor ignored Clubb, and Liberto repeatedly indicated that she understood and agreed.” Clubb allegedly threatened “[I’m] going to get [you] and ‘[I’m] going to make [you] sorry.’ … Clubb then concluded her threat by turning to look at Liberto and calling her either a ‘damn porch monkey’ or a ‘dang porch monkey.'” Next day Clubb called “little girl” and “I’m gonna get you. I’m gonna go to [hotel owner] Dr. Berger,” plus again calling her a porch monkey.” Whether or not Liberto accurately perceived Clubb as a “supervisor,” for purposes of vicarious liability, there was sufficient evidence that “Clubb repeatedly and effectively communicated to Liberto prior to September 14, 2010, that Clubb had Dr. Berger’s ear and could have Liberto fired.” Moreover, Clubb (according to Liberto) repeatedly threatened to use her authority to “to get [her]” and “make [her] sorry.” Thus “in gauging the severity of Clubb’s conduct, we deem Clubb to have been Liberto’s supervisor.” jurug could find that the entirety of the slurs and threats could be found severe: “Clubb employed racial epithets to cap explicit, angry threats that she was on the verge of utilizing her supervisory powers to terminate Liberto’s employment.” “[W]hen assessing the reasonableness of an employee’s belief that a hostile environment is occurring based on an isolated incident, the focus should be on the severity of the harassment … Of course, a single offensive utterance – e.g., ‘simple teasing’ or an ‘offhand comment[]’ … generally will not create a hostile environment without significant repetition or an escalation in the harassment’s severity … But an isolated incident that is physically threatening or humiliating will be closer – even if not equal – to the type of conduct actionable on its own because it is ‘extremely serious’ … The employee will have a reasonable belief that a hostile environment is occurring if the isolated incident is physically threatening or humiliating.” 2. Overrules Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006), and holds that an employee remains protected by Title VII’s anti-retaliation section (and § 1981) when complaining about race harassment, even if the offending conduct has not yet ripened into a hostile work environment. The panel notes in particular that the racial slur “porch monkey” is especially “odious” and “pure anathema” to American blacks, and the alleged repeated use of that slur directly against an employee “can properly be deemed to be ‘extremely serious.'” Jordan complaining about an isolated incident of harassment is not protected “opposition” to discrimination – must be rejected. “Reasonable belief” standard for retaliation. The majority denies the dissent’s charge that the new standard will “generate widespread litigation” over everyday racial friction in the workplace. “Our standard is implicated solely when an employee suffers retaliation for engaging in an oppositional activity, and can be satisfied only by showing the objective reasonableness of the employee’s belief that an isolated incident of harassment was physically threatening or humiliating.”

McCleary-Evans v. Maryland Dept. of Transp., 780 F.3d 582, 126 FEP 640 (4th Cir. 2015). Panel: NIEMEYER, Diaz (WYNN, dissenting in part). Claim on Appeal: Title VII hiring (race, sex). Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: While Swierkiewicz remains the pleading standard for employment discrimination cases, employee must still state plausible claim under Iqbal-Twombly, and allegation that employee was in protected group, was not hired and lost out to employees outside the protected category (without any evidence of relative qualifications) is insufficient to state a claim.

Jacobs v. N.C. administrative Office of the Courts, 780 F.3d 562, 31 A.D. Cases 546 (4th Cir. 2015). Panel: FLOYD, Keenan, Harris. Claim on Appeal: 1. ADA termination. 2. ADA retaliation. 3. ADA reasonable accommodation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. 3. Reversed [plaintiff]. Grounds: 1. On summary judgment standard, district court erred by failing to consider all of the evidence in the record and stated facts in the light most favorable to the employer, not the nonmovant. “Strikingly, both of the district court’s key factual findings–that [plaintiff] was not disabled and that [supervisor] did not learn of [plaintiff’s] accommodation request prior to terminating her–rest on factual inferences contrary to [plaintiff’s] competent evidence. The district court thus improperly resolved factual issues at the summary judgment stage, in contravention of well-settled law.” District court also erroneously credited employer’s medical expert witness over plaintiff’s expert, despite that employer’s witness had never examined the plaintiff. On merits, citing the EEOC’s regulations interpreting the ADAAA, that “interacting with others” is a major life activity (29 C.F.R. § 1630.2(i)(1)(i)). It observes that “[f]ew activities are more central to the human condition than interacting with others.” Notes that “[a] person need not live as a hermit in order to be ‘substantially limited’ in interacting with others” for purposes of the ADA, holding that “Jacobs need only show she endured” interactions with the public “with intense anxiety.” That she was able to engage in social interactions with co-workers did not mean that her stranger-related anxiety was not a disability. Record “inconsistencies and the total lack of documentary evidence of … alleged poor performance” precluded summary judgment on the ground that plaintiff was not otherwise-qualified for the position of deputy clerk. Finally, there was evidence of causation (e.g., a note boss placed in employee’s personnel file from May 5, 2009 that employee complained of “nerve issues” and an “anxiety disorder”; an email that employee sent to the decision-makers asking for an accommodation). Finally, the panel stresses that the suspicious timing of the termination and lack of documentary support for Jacobs’s ostensible performance issues. For instance, even though plaintiff’s alleged sleeping was purportedly central to decision to fire her, it was not discussed in the termination meeting or in responding to the EEOC. Rather, the story emerged for the first time during discovery in this suit. 2. Genuine dispute of material fact over causation. “Jacobs was terminated just three weeks after requesting an accommodation from her supervisors. This close temporal proximity is sufficient to establish a disputed issue of fact as to the causation element of the prima facie case.” Further, “a reasonable jury could conclude that Jacobs has set out sufficient evidence of pretext to ultimately prevail on her retaliation claim.” 3. Genuine disputes of material fact about whether plaintiff could perform the essential functions of the position of deputy clerk with accommodation. It holds that there are “various tasks, including intake, filing, data entry, mailing documents, bookkeeping, and serving as a courtroom clerk” that did require working with the public. There was evidence that there were some clerks that never had to work the front counter, that (obversely) there was “no evidence that mastery of the front desk was essential or that Jacobs’s no longer working behind the front counter would negatively impact the office.” Employer, according to the summary judgment record, made no effort to engage in any kind of interactive process with Jacobs: “It is undisputed that each of Jacobs’s supervisors–Kennedy, Excell, and Griffin–refused to discuss Jacobs’s accommodation request with her until Tucker returned to the office. Both Radewicz and Tucker testified that Jacobs’s supervisors had authority to reassign employees to other tasks (and therefore to engage in the interactive process with Jacobs). The morning that Tucker returned to the office after a three-week absence, she called Jacobs to her office and fired her without first discussing her accommodation request.”

EEOC v. Freeman, 778 F.3d 463, 126 FEP 323 (4th Cir. 2015). Panel: GREGORY, Diaz (AGEE, concurring). Claim on Appeal: Title VII disparate impact hiring. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court did not abuse discretion in excluding agency’s expert witness, where his database was missing hundreds if not thousands of applicants, and there were many errors and unexplained discrepancies in the database (e.g., 29 out of the 41 applicants for whom EEOC sought back pay had errors).

Walker v. Mod-U-Kraf Homes, Inc., 775 F.3d 202, 125 FEP 1180 (4th Cir. 2014). Panel: AGEE, Niemeyer, Duncan. Claim on Appeal: 1. Title VII harassment (sex). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Whether harassment was sufficiently severe or pervasive is a genuine dispute of material fact, where “alleged environment consisted of comments of varying degrees of offensiveness being made to Walker several times a week for well over a year. Similar comments were made with the same frequency to other coworkers … When Walker or her co-workers complained to their leads and immediate supervisors, limited action was taken to stop the offending behavior.” Absence of physical harassment, such as touching and groping, did not preclude a jury from finding the co-workers’ behavior objectively harassing. “[A] reasonable jury could rationally find that the consistent and repeated comments made by Mullins and Young ‘painted women in a sexually subservient and demeaning light [that is] sufficiently severe or pervasive to alter the conditions of [Walker’s] employment and to create an abusive work environment.'” 2. Employee did not establish that the avowed reason for her discharge (the July 20 physical assault of employee) was pretextual. Employer could rationally penalize the employee who reportedly started the fight harder than other employee. Good performance history not inconsistent with termination for cause for fighting.

Hentosh v. Old Dominion University, 767 F.3d 413, 124 FEP 861 (4th Cir. 2014). Panel: CHILDS, Duncan, Wynn. Claim on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: After district court dismissed discrimination claim on timeliness grounds, it continued to have subject-matter jurisdiction over retaliation claim that arose out of original claim, despite that it was not included in EEOC charge.

Freeman v. Dal-Tile Corp., 750 F.3d 413, 122 FEP 995 (4th Cir. 2014). Panel: SHEDD, Traxler [NIEMEYER, dissenting in part]. Claim on Appeal: 1. Title VII and § 1981 harassment (sex, race). 2. Title VII and § 1981 constructive termination. State tort claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Genuine dispute of material fact regarding whether harassment was objectively severe or pervasive. Incidents included independent sales representative’s regular use of the word “bitch” and “black bitch,” bragging about sexual exploits (especially with black women), sending pictures of naked women, use of the word “nigger,” and lewd comments. Also a genuine dispute about imputing liability for employer’s failure to abate harassment. Circuit adopts negligence standard. Plaintiff approached supervisor with several instances of race and sex harassment, and supervisor testified about knowing about representative’s use of “bitch,” display of naked woman pictures, and demeaning remarks about women. Company did not take any action until employee reported complaints up the chain, at which point harassment had been ongoing for three years. No action taken despite knowledge of harasser passing gas on plaintiff’s phone, harassing her to the point of tears (in front of supervisor). Harassment only ended when employer placed communications ban on harasser. 2. No genuine dispute that employee voluntarily resigned, where employee took leave, and returned to workplace where harasser no longer had contact with her.

EEOC v. Baltimore Cty, 747 F.3d 267, 122 FEP 538 (4th Cir. 2014). Panel: KEENAN, Gregory, Shedd.  Claim on Appeal: ADEA benefits.  Disposition Below: Summary judgment for EEOC [plaintiff]. Outcome on Appeal:  Affirmed [plaintiff]. Grounds: County’s defined-benefit retirement plan that required employees hired at an older age to contribute a higher percentage of their salaries (allegedly to correct for the short contribution window) violated ADEA. Time value of money did not motivate decision, where plan permitted service-based retirement regardless of age. “Safe harbor” provision (29 U.S.C. § 623(l)(1)(A)(ii)(I) did not apply because it only immunizes what the employer contributes to the fund, not what the employees themselves contribute.

EEOC v. Propak Logistics, Inc., No. 13-1687 (4th Cir. Mar. 25, 2014). Panel: KEENAN, Diaz (WILKINSON, concurring). Claim on Appeal: Title VII hiring (national origin). Disposition Below: Attorneys fees for employer [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No abuse of discretion in awarding $189,113 in fees to employer based on finding that EEOC was objectively aware at time case was filed that offending division of the company was already closed (barring injunctive relief) and the agency had failed to identify an aggrieved class (preventing award of damages).

McCray v. Maryland Dep’t of Transp., 741 F.3d 480, 121 FEP 761 (4th Cir. 2014). Panel: GREGORY, King, Floyd. Claim on Appeal: 1. Title VII termination (race, sex). 2. ADA and ADEA termination. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant] . Outcome on Appeal: 1. Affirmed [defendant. 2. Reversed [plaintiff]. Grounds: 1. District court abused discretion by granting summary judgment before ruling on employees FRCP56(d) motion for addition al discovery. Employee was provided no opportunity to depose supervisors. Employee was diligent in seeking discovery. District court erred in ruling on legislative immunity issue, where complaint alleges discriminatory events that occurred before legislative action (budget cuts) occurred. She was stripped of responsibilities and not assigned new ones. Had legislature simply terminated the employee’s position, that would be protected by immunity, but allegation was that agency subjected plaintiff to adverse employment actions that made her position vulnerable to budget cuts. 2. Claims barred by sovereign immunity. Immunity argument not waived by agency’s failure to raise issue in the district court.

Summers v. Altarum Institute, Corp., 740 F.3d 325, 29 AD Cases 1 (4th Cir. 2014). Panel: MOTZ, Agee, Diaz. Claim on Appeal: ADA termination. Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: In wake of ADAAA, temporary impairment can now qualify as a disability under the ADA. EEOC issued notice-and-comment regulations that provide that “effects of an impairment lasting or expected to last fewer than six months can be substantially limiting” for purposes of proving an actual disability, if they are “sufficiently severe.” 29 C.F.R. § 1630.2(j)(1)(ix). Plaintiff alleged a “disability” under the ADAAA sufficiently plausible to survive a Rule 12(b)(6) motion. “Although short-term impairments qualify as disabilities only if they are ‘sufficiently severe,’ id. § 1630.2(j)(1)(ix) (app.), it seems clear that the serious impairment alleged by Summers is severe enough to qualify. If, as the EEOC has concluded, a person who cannot lift more than twenty pounds for ‘several months’ is sufficiently impaired to be disabled within the meaning of the amended Act, id., then surely a person whose broken legs and injured tendons render him completely immobile for more than seven months is also disabled.” Rejects employer’s challenge to the EEOC’s regulation, granting in Chevron deference. It also holds that the district court erred in finding that the employee was not disabled if he could have worked from a wheelchair. “This inverts the appropriate inquiry. A court must first establish whether a plaintiff is disabled by determining whether he suffers from a substantially limiting impairment. Only then may a court ask whether the plaintiff is capable of working with or without an accommodation. [Citing 42 U.S.C. §12102(4)(E)(i)(III).]”

Scott v. Family Dollar Stores, 733 F.3d 105, 120 FEP 473 (4th Cir. 2013). Panel: GREGORY [KEENAN, concurring] [WILKINSON, dissenting]. Claim on Appeal: Title VII/EPA compensation (sex). Disposition Below: Class allegations dismissed [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court abused discretion denying leave to file amended complaint with Rule 23 class allegations. Court has appellate jurisdiction under Rule 23(f) to review decision not to grant leave; leave-to-amend decision was inextricably intertwined with Rule 23 issue, or (alternatively) necessary to ensure meaningful review. District court misinterpreted Wal-Mart v. Dukes as barring any class involving subjective decision making . Commonality can be established by an exercise of discretion that is tied to a specific employment practice and exercised in a uniform manner. Moreover, while Wal-Mart concerned the exercise of discretionary power on a local level, a class can be based on discretionary authority by high-level corporate decision makers. Here, the employees alleged (1) a salary range policy; (2) a pay raise percentage policy; (3) a “built-in headwinds” policy; and (4) dual pay system for hirees and promotes. To expound, the salary range policy sets mandatory minimum and maximum pay for Store Managers. Complaint alleges, moreover, that such decisions emanate from corporate headquarters at the vice-presidential level. Employer not prejudiced by amendment: delays were in part attributable to tactical decisions of employer, and theory advanced in complaint was not new, but an elaboration on the original complaint. Fact allegations consistent. Case was still at early stage, where parties were engaged in discovery and far from trial.

Crockett v. Mission Hospital, Inc., 717 F.3d 348, 118 FEP 895 (4th Cir. 2013). Panel: AGEE, Gregory [FABER, concurring]. Claim on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Seven-day suspension was not a “tangible employment action” for purposes of establishing strict liability for supervisor liability, where (1) at the time of the suspension, plaintiff had not complained to anyone about harassment; (2) alleged harasser had no role in ordering suspension (which was ordered because she had been on a final warning about violations of cell phone policy); (3) she suffered no pecuniary loss, because she was permitted to use paid-time off days for the suspension. Applying affirmative defense, employer established that it had effective anti-harassment policy, combined with evidence that when employee complained several managers investigated (despite employee’s lack of cooperation). Although employee claimed that employer should have transferred her to an office away from the harasser, employer at the time had no facts to support such a transfer. (She had not told anyone that her supervisor made her disrobe and propositioned her.) Plaintiff’s failure to cooperate negated a genuine dispute of material fact about the Faragher/Ellerth defense.

Wilson v. Dollar General Corp., 717 F.3d 337, 27 AD Cases 1697 (4th Cir. 2013). Panel: THACKER, Niemeyer, Agee. Claim on Appeal: ADA  reasonable accommodation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Chapter 13 debtor has standing to bring pre-bankruptcy petition claims. Plaintiff nonetheless failed to establish that he was a qualified individual with a disability, because no accommodation was suggested other than leave, and there was no evidence that plaintiff (with iritis, an inflammation of the eye) would be able to return to work even with a two-day leave. Failure to furnish “interactive process” is not a free-standing violation of the ADA, and does not result in liability unless the employee can establish a reasonable accommodation that would have been possible.

Hegab v. Long, 716 F.3d 790, 118 FEP 8 (4th Cir. 2013). Panel: NIEMEYER [MOTZ, concurring] [DAVIS, concurring]. Claim on Appeal: Free Exercise and Equal Protection claims. Disposition Below: Dismissal for lack of subject matter jurisdiction, FRCP 12(b)(1) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Where complaint requires court to examine the merits of the National Geospacial-Intelligence Agency denial of security clearance, it falls beyond court’s subject-matter jurisdiction.

Balas v. Huntington Ingalls Indus., 711 F.3d 401, 117 FEP 1065 (4th Cir. 2013). Panel: DUNCAN, Wynn, Floyd. Claim on Appeal: 1. Title VII harassment and discrimination (sex). 2. Title VII retaliation. Disposition Below: 1. Judgment on the pleadings, Rule 12(c) [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Employee failed to meet administrative prerequisites for all Title VII claims by putting them in charge. Intake interview and letters were not part of charge; these were never added to charge, or delivered to employer, and EEOC was under no affirmative obligation to amend charge with these communications. 2. No evidence in record that manager who made termination knew about protected activity.

Young v. UPS, Inc., 707 F.3d 437, 116 FEP 1569 (4th Cir. 2013). Panel: DUNCAN, Wilkinson, Gregory . Claim on Appeal: 1. ADA reasonable accommodation. 2. Pregnancy Discrimination Act forced leave. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No genuine issue of material fact whether employer regarded plaintiff as disabled. All employer actions asserted by plaintiff were consistent with another purpose, determining whether pregnant employee could safely engage in lifting (soliciting letter from plaintiff’s doctor clearing her for return to work; relying on doctor’s note without contacting employee or entering into other interactive process; allegedly mistaken belief that employee was restricted). No evidence that employer believed condition was anything more than a short duration and manageable weight restriction. No interactive process required to determine whether employee meets definition of “disability.” 2. Policy that assigns light duty only to employees who were injured on the job does not violate PDA, even if it means that this category of employees is treated better with respect to light-duty assignments than pregnant employees. PDA does not require employer to provide accommodations to pregnant employees equal to any and all other employees. Comments of non-decision maker about pregnancy not probative of “corporate animus” sufficient to constitute direct evidence of discrimination. Using indirect method, employee could not establish for purposes of prima facie case that she was “comparable” to employees who were disabled on account of workplace injuries (her lifting restriction was limited and temporary), e.g., employee did not lose DOT certification to work

Reynolds v. American Nat’l Red Cross, 701 F.3d 143, 27 A.D. Cases 263 (4th Cir. 2012). Panel: THACKER, King, Keenan. Claim on Appeal: 1. ADA termination. 2. ADA retaliation. 3. ADA disclosure of confidential medical information. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant] 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. ADAAA does not apply retroactively to claim that originated in 2006. Plaintiff was not substantially limited in the major life activity of lifting, where record showed that he continued to lift at work (including 195 books at one job). No “record of” disability where only medical report in record was inconclusive as to history and extent of claimed disability. Employee also fails “regard as” test because employer expected plaintiff to continue lifting and performing job. Question of whether employers could be aggregated to reach 15 employee threshold for “employer.” 2. No causal link between plaintiff’s request for accommodation and supervisor’s direction that he move items in excess of his alleged limitations. Alleged retaliation for applying for workers’ compensation not covered by the ADA. 3. Employee consented to the sharing of his medical information in order to get a doctor referral (not for a “job related” purpose).

EEOC v. Randstad, 685 F.3d 433, 115 FEP 801 (4th Cir. 2012). Panel:DAVIS, Keenan, Spencer. Claim on Appeal: EEOC enforcement action. Disposition Below: Subpoena not enforced [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: With investigation into literacy requirement, addition of ADA (for persons with learning and intellectual disabilities) relates back to first national origin charge, under “clarify and amplify” prong of 29 C.F.R. § 1601.12(b). EEOC’s interpretation of regulation to permit a new statutory basis reasonable and must be deferred to by court. Four years’ worth of non-administrative positions filled in Maryland is relevant to charge under investigation

Sydnor v. Fairfax Co, Virginia, 681 F.3d 591, 28 AD Cases 648 (4th Cir. 2012). Panel:WILKINSON, Gregory, Floyd. Claim on Appeal:ADA reasonable accommodation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Request for duty that could be performed from wheelchair subsumed by EEOC charge that cited request for light duty work. These are not fundamentally different bases for liability and employer was reasonably placed on notice that it was under investigation.

Gerner v. County of Chesterfield, Virginia, 674 F.3d 264, 114 FEP 976 (4th Cir. 2012). Panel: FLOYD, Niemeyer, Duncan. Claim on Appeal: Title VII harassment (sex). Disposition Below: Dismissal for failure to state a claim, FRCP 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Allegation that employer offered more generous severance terms to men than women sated a claim under Title VII. Employment benefit need not be a contractual right to be subject to Title VII.

Dulaney v. Packaging Corp. of America, 673 F.3d 323, 114 FEP 980 (4th Cir. 2012). Panel: DUNCAN, Davis, Keenan. Claim on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Court sets aside whether harasser was a “supervisor” and whether this would be properly classified as a “submission case,” i.e., one in which an employee submits to sexual abuse in order to retain his or her job. Court holds that forcing the complaining employee to choose between severance and outright discharge constitutes a “tangible employment action.” disputed factual issues about whether the offered severance package was an ultimatum include that employee was told that she would be fired if she did not sign the severance agreement. After she refused to sign, manager walked her to her locker, directed her to gather her lock and other belongings, took her key to the facility, then escorted her off the premises. Employer also stopped employee’s payroll as of three days before she first saw the severance agreement, raising inference that plaintiff had been terminated regardless of whether or not she signed the agreement. Tangible employment action needn’t be carried out by the harasser him/herself, provided that there is nexus between the harassment and the ultimate action, as arguably occurred here, i.e., testimony that supervisor who escorted her from the premises criticized and laughed at her when she reported that supervisor was making inappropriate sexual comments about her to her co-workers, again when she reported physical harassment, and again when she reported that some co-workers continued to tease her about the sex-themed rumors initiated by manager.

Boitnott v. Corning Inc., 667 F.3d 172, 25 A.D. Cases 1441 (4th Cir. 2012). Panel: GERGEL, Gregory, Shedd. Claim on Appeal: ADA discrimination and reasonable accommodation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee not substantially limited in major lie activity of work where employee can handle forty-hour workweek but not overtime.

EEOC v. Great Steaks, Inc., 667 F.3d 510, 114 FEP 289 (4th Cir. 2012). Panel: FLOYD, Niemeyer, Duncan. Claim on Appeal: Title VII harassment (sex). Disposition Below: Attorneys’ fees denied [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: No abuse of discretion denying attorneys’ fees to prevailing defendant under Title VII, Equal Access to Justice Act or 28 U.S.C. § 1927. Case was fully tried to a jury who found in favor of employer. Fact that judgment as a matter of law was denied at close of case-in-chief a strong indication that case was not frivolous, unreasonable or groundless. EAJA may not apply because of exemption that precludes fees where another specific attorneys’ fee provision covers the claim. District court judge was within discretion finding that litigation was not vexatious under section 1927.

Bullock v. Napoliltano, 666 F.3d 281, 114 FEP 297 (4th Cir. 2012). Panel: NIEMEYER, Agee [GREGORY, dissenting]. Claim on Appeal: Title VII termination (race). Disposition Below: Dismissed on subject-matter jurisdiction grounds [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: State court, where employer commenced action, lacks subject-matter jurisdiction over a lawsuit against the federal government; thus, under doctrine of derivative jurisdiction, district court had no removal jurisdiction over claim originally filed in state court.

Lee-Thomas v. Prince George’s County Public schools, 666 F.3d 244, 25 A.D. Cases 1193 (4th Cir. 2012). Panel: KING, Davis [KEENAN, dissenting]. Claim on Appeal: ADA reasonable accommodation. Disposition Below: Leave to amend complaint, denial of motion to reconsider [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: State waived Eleventh Amendment immunity by statute for claims not exceeding $100,000, deferring to ruling in Board of Education of Baltimore County v. Zimmer-Rubert, 973 A.2d 233, 243 (Md. 2009).

Kennedy v. St. Joseph’s Ministries, Inc., 657 F.3d 189, 113 FEP 374 (4th Cir. 2011). Panel: SHEDD, Wynn [KING, dissenting]. Claim on Appeal: Title VII harassment (religion) and retaliation. Disposition Below: Summary judgment denied [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Claims relating to religious harassment, termination and retaliation owing to disagreement about employee’s wearing of religious garb from Church of the Brethren at work barred by 42 U.S.C. § 2000e-1(a).

Okoli v. City of Baltimore, 648 F.3d 216, 112 FEP 1675 (4th Cir. 2011) Panel: GREGORY, King (WYNN, concurring). Claims on Appeal: 1. Title VII harassment, hostile work environment (sex). 2. Title VII harassment, quid pro quo (sex). 3. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. 3. Reversed [plaintiff]. Grounds: 1. Employee presented genuine issue of material fact about whether harassment was severe or pervasive. She suffered upwards of twelve incidents by supervisor in just four months: (1) disparaging jokes about gays and lesbians; (2) comments about plaintiff and Jacuzzi fantasy; (3) comments about plaintiff and group sex fantasy; (4) questions about plaintiff’s underwear; (5) comments about sexual relations with another African-American woman; (6) addition al inquiries about plaintiff sitting on lap and Jacuzzi fantasy; (7-10) three incidents of fondling her leg under a table; (11) forcible kissing; (12) more propositions to join in a Jacuzzi fantasy. Some incidents may have been severe enough to be actionable in and of themselves. Notes the special vulnerability of the employee: “Stewart is a political appointee who sits in the Mayor’s cabinet and heads an agency with more than a hundred employees. Okoli was a new secretary whose job required her to have a lot of one-on-one contact with her boss.” Observes that gifts to plaintiff, while not intrinsically sexual, certainly could have been taken by a reasonable person as an escalation of the sexual propositioning. It is not material that plaintiff continued to attend work and held a high opinion of her efforts. 2. Plaintiff’s termination by supervisor was a “tangible employment action.” City failed to rebut the inference of quid pro quo harassment because it failed to present a legitimate, non-discriminatory reason for the firing: while there is some evidence that plaintiff occasionally had scheduling conflicts and made typographical errors, she was only hours after she culminated her rejection of supervisor by complaining to the mayor. There is little in the record to suggest plaintiff would have been fired for reasons stated by employer. 3. Employee engaged in protected activity by complaining about harassment to the mayor’s office, despite that her letter did not specify “sexual harassment” as the reason – it was enough for her to twice complain of “harassment,” even if “it might have been more ideal for her to detail the sexual incidents she later relayed.” Genuine issue of material fact about causation. The city claimed that the computer file that contained the firing-letter was date-stamped a week prior to her complaint to the mayor’s office, so it could not have been motivated by an intent to retaliate. But that a computer file was created on a certain day tells nothing about its contents on that day.

EEOC v. Xerxes Corp., 639 F.3d 658, 112 FEP 109 (4th Cir. 2011). Panel: TRAXLER [MOTZ, concurring][WILKINSON, concurring]. Claims on Appeal: Title VII harassment (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Alleged harassment by co-workers of black employees includes the “the repeated use of racial slurs . . . as well as to various pranks by unknown coworkers that they believed were racially motivated”; also such “pranks” as “turning the lights off in the bathroom and throwing wet paper towels at [one employee], placing gel on the doorknob in the bathroom so that he could not open the door, tampering with his toolbox lock, and hiding his toolbox.” Black employees testified followed company’s anti-harassment policy, and went to their supervisor with complaints as early as June 2005, but no action was taken until the following year. Genuine issue of material fact whether “[a]s the direct supervisor of [black employees] Pearson and Wilson, . . . Shifflett was specifically designated as an appropriate person to receive such complaints [under Xerxes’ policy].” Reasonable juror could find that complaints prior to February 2006 were sufficient to place Xerxes on actual notice of the racial slurs and pranks in the plant and that Xerxes’ response was unreasonable.” Post-February 2006, though, panel holds that employer as a matter of law took steps reasonably calculated to prevent and correct racial harassment, and affirms summary judgment as to those claims. The panel also affirms summary judgment on a claim concerning another employee, who it holds was not subjected to a sufficiently severe or pervasive hostile work environment.

Adams v. Trustees of UNCW, 640 F.3d 550, 11 FEP 1665 (4th Cir. 2011). Panel: AGEE, Traxler, Niemeyer. Claims on Appeal: Title VII and Equal Protection promotion (religion). First Amendment free speech claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Failure to promote employee from associate professor to full professor not shown to be motivated by his strong Christian faith. Assuming that the employee made out a prima facie claim of religious discrimination under the McDonnell Douglas burden shifting test, he failed to establish that others similarly situated but non-Christian faculty had presently or in the past been promoted. Legitimate, if subjective, concern about his outside scholarship was sufficient to support decision.

Hoyle v. Freightliner, LLC, 650 F.3d 321, 111 FEP 1537 (4th Cir. 2011). Panel: DAVIS, Duncan, Wynn. Claims on Appeal: 1. Title VII harassment (sex). 2. Title VII termination (sex). 3. Title VII retaliation. State tort claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. District court erred in holding that plaintiff could not prove, as a matter of law, that the conduct was “because of sex,” where a “juror could reasonably find that sexualizing the work environment by placing photos of nude women or women in sexually provocative dress and poses in common areas is detrimental to female employees and satisfies the ‘because of sex’ requirement.” In particular, court notes that anonymously planting tampon where plaintiff would see it was evidently targeted at the plaintiff (or possibly at her female co-worker). Moreover, jury could find that various incidents and displays of unclothed, sexualized images of women was subjectively and objectively hostile. District court erred in comparing the record in this case to records in other reported cases which may have been based, where – in principal authority cited – case had been tried on the merits and the jury made the “severe or pervasive” finding. Finally, there is a genuine issue of fact about whether employer exercised due care in correcting sex harassment by co-workers where employee “notified human resources directly after several incidents, and Freightliner acknowledges receiving complaints from Hoyle ‘centered around inappropriate material’ in the workplace” and a “reasonable juror could conclude that Freightliner did not promptly or effectively enforce its own anti-harassment policies based on its repeated failure to investigate.” 2. Employee failed, as prima facie stage, to locate any male employees treated relatively more favorably who were on a “last chance agreement” with the company after repeated absences. 3. Reassignment from mechanic’s job to janitorial duties might constitute “materially adverse action” and plaintiff also established prima facie evidence of causation because reassignment occurred shortly after she complained of the computer porn. Summary judgment affirmed on alternative ground that plaintiff could not establish pretext, where reassignment was temporary and motivated by a lack of other work, and termination was motivated by plaintiff’s violation of “last chance agreement.”

EEOC v. Washington Suburban Sanitary Commission, 631 F.3d 174, 111 FEP 481 (4th Cir. 2011). Panel: WILKINSON, Niemeyer, Duffy. Claims on Appeal: EEOC enforcement action. Disposition Below: Subpoena enforced [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Bi-county commission could not assert legislative privilege or immunity from EEOC subpoena, where subpoena expressly excluded deliberative documents, no lawsuit had been brought, the Commission expressly stated that it was not investigating motives underlying decision to reorganize the unit, and Commission did not seek coercive process directly against legislative officials.

Bonds v. Leavitt, 629 F.3d 369, 111 FEP 171 (4th Cir. 2011). Panel: TRAXLER, Gregory, Hamilton. Claims on Appeal: 1. Title VII retaliation. 2. Title VII harassment (race). 3. Title VII termination (race, sex). Civil Service Reform Act and Whistleblower Protection Act claims (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Although 42 U.S.C. § 2000e-16(a) covers retaliation against federal employees, it does not cover retaliation for opposing racial discrimination not otherwise related to an employment practice (here, alleged racial discrimination in destroying lines of donor genetic material). 2. Actions taken against plaintiff as a result of performance deficiencies, as alleged in complaint, not severe or pervasive enough to support harassment claim, nor shown to be motivated by race or sex. 3. Termination motivated by placing improper hold on clinical trial and improperly disseminating budget information; even if there were procedural deficiencies in the investigation of plaintiff’s actions, this did not tend to show that they were motivated by race or sex.

Mosby-Grant v. City of Hagerstown, 630 F.3d 326, 111 FEP 51 (4th Cir. 2010). Panel: GREGORY, Keith (NIEMEYER, dissenting). Claims on Appeal: 1. Title VII harassment (sex). 2. Title VII harassment (race). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Plaintiff, police recruit, presented sufficient evidence to create a genuine issue of material fact about whether she was subjected to a hostile work environment and whether it was “because of” sex. Instructors and classmates consistently used language that was degrading to women: singing sexually explicit songs; describing women as “bitches,” “prostitutes,” “crazy,” and “dope fields”; making fun of women victims of domestic violence; selective tauting; detailed description of encounter w calling plaintiff bitch and telling her that she was asking for special treatment because she is a woman. Behavior was objectively hostile and also subjectively hostile (she became openly emotional at work, often left work in tears, superiors noticed effect on plaintiff and had to intervene on her behalf with classmates). Harassment was imputable to employer, where plaintiff often complained to her superiors who took no affirmative steps to abate behavior, or in one instance was segregated from other cadets. 2. Although there were racially-motivated comments (a reference to the James Byrd dragging murder and lynching; comments about “fucking Mexicans,” “honky,” and “ghetto”), they were not directed at employee and were less frequent than sex-biased comments.

Brooks v. Arthur, 626 F.3d 194, 110 FEP 1446 (4th Cir. 2010). Panel: KING, Niemeyer, Conrad. Claims on Appeal: §1983 retaliation. Disposition Below: Dismissal for failure to state of claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erroneously dismissed civil action on res judicata grounds. administrative proceedings involved defendants only in their official capacities, while (under Virginia law) subsequent suit against same defendants in individual capacities was not barred. First proceeding was in effect against agency; no privity between the agency and the officers as individuals.

Coleman v. Maryland Court of Appeals, 626 F.3d 187, 110 FEP 1217 (4th Cir. 2010). Panel: TRAXLER, Shedd, Dever. Claims on Appeal: Title VII termination (race) and retaliation. FMLA claim (not discussed here). Disposition Below: Dismissal for failure to state of claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiffs failed to plausibly allege Title VII violations where (1) no facts were alleged that plaintiffs were treated relatively worse than a similarly-situated white employee, or (2) intervention in conflict between two employees was a protected activity.

EEOC v. Fairbrook Medical Clinic, P.A., 609 F.3d 320, 109 FEP 907 (4th Cir. 2010). Panel: WILKINSON, Davis, Beam. Claims on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: EEOC presented a genuine issue of material fact about harassment by doctor/clinic-owner being “because of” sex. Although doctor made offensive remarks in front of both male and female employees, his use of “sex-specific and derogatory terms” indicates that he intended to demean women (e.g., he asked employee who had recently given birth if she had a better libido while she was pumping her breasts, predicted that she was probably a “wild thing” in bed, and requested to view and pump her breasts). Panel rejects suggestion that such statements were not severe or pervasive in the setting of a medical clinic, where case involved “more than general crudity,” including “highly personalized comments designed to demean and humiliate [employee.” Court “decline[s] to accept the argument that a medical setting, because it deals with human anatomy, is somehow liberated from professional norms.” Court also rejects arguments that the comments were too infrequent to be severe or pervasive, or that the harassment supposedly did not affect the employee’s job performance. Over three year period, employee testified that crude jokes occurred two to three times a month, and remarks about her breasts once or twice a week after she returned from maternity leave. Although there was no record of physical conduct, there was implicit sexual propositioning (such as about pumping her breasts). That plaintiff continued to work despite the harassment does not defeat the claim. Disputes concerning the credibility of the employee’s testimony belong to the jury. Whether or not Faragher/Ellerth defense applies to business owner, jury could conclude that the clinic failed to exercise reasonable care (e.g., did not investigate harassment complaints).

Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 108 FEP 1766 (4th Cir. 2010). Panel: WILKINSON, Duncan [DAVIS, concurring]. Claims on Appeal: Title VII termination (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff presented genuine issue of material fact about whether she was fired for sex, rather than for failing a physical ability test after seeking clearance to return to work after an ankle injury. Plaintiff introduced ample evidence showing that proffered explanation was unworthy of credence, because (1) the record indicates that employee’s ankle injury was temporary and had healed at the time of her termination, yet employer did not allow her to return to work; and (2) the proffered rationale is” undermined by the undisputed fact that the PAT (“physical ability test”) was a general, full-body physical fitness test not designed to test any body part in particular.” In addition, there was specific evidence of gender bias: “(1) Old Dominion used the PAT selectively, excusing injured male employees from taking it; and (2) The employee responsible for requiring the PAT and firing her, Stoddard, harbored discriminatory animus toward women insofar as he was responsible for selectively employing the PAT and was part and parcel of Old Dominion’s widespread resistance to hiring women as Pickup and Delivery drivers.” There was doubt that a policy of administering the test existed, and the employer only first asserted it during the course of litigation. Indeed, only on appeal did employer argue that PATs “were not required after all on a discretionary, case-by-case basis but each and every time, without exception, an injured employee was issued an ambiguous medical release.” By using the test on a female driver, while exempting two male drivers returning from injuries, a jury could find that the company enforced a stereotype that women were less resilient in their ability to recover. There was also evidence of sex-biased attitudes: regional vice president remarked that he “didn’t think a girl should have that [Pickup and Delivery] position” and worried that women were more injury-prone, explaining that he did not want to hire a female Pickup and Delivery driver because he “was afraid [she] would get hurt.” An operations’ manager stated, “[t]his not a woman’s place.” A terminal manager stated reluctance to hiring female Pickup and Delivery drivers, noting that “the company did not really have women [Pickup and Delivery] drivers,” and that Merritt was passed over because “it was decided that [the company] could not let a woman have that position.” Only six out of 3100 Pickup and Delivery drivers were women.

Whitten v. Fred’s Inc., 601 F.3d 231, 108 FEP 1510 (4th Cir. 2010). Panel: TRAXLER, Agee, Blake. Claims on Appeal: S.C. state law harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: EEOC’s transmittal of plaintiff’s charge to State Human Affairs Commission satisfied the requirement that a charge of discrimination be made “to the Commission” under S.C. Code Ann. § 1-13-90(a). Claim was also timely filed under state law, where (1) the plaintiff must file the earlier of one year after the event or 120 days after dismissal of dismissal of her state charge; (2) complaint was filed within one year of final harassing events; and (3) state agency had never dismissed her charge (even though the EEOC did.) Judicial estoppel did not apply where plaintiff did not conceal or deny that the claim was an asset in bankruptcy, disclosing it in her original bankruptcy filing. On the merits, the state law tracks Title VII law. Employee presented genuine issue of material fact about whether the store manager’s harassment could be imputed to the employer. While the existence of authority to take tangible employment action would establish that store manager was employee’s supervisor, district court erred in holding that the absence of that authority negated supervisory status. Manager was usually was the highest ranking employee in the store, which meant that there typically was no one superior to him to provide a check on his behavior. The level of authority manager had and exercised over plaintiff was significant, i.e., he could change Whitten’s schedule and impose unpleasant duties. It was not determinative that plaintiff could (and did) tell the manager to halt the harassment. Regarding possible application of Faragher/Ellerth affirmative defense, actions giving rise to plaintiff’s hostile environment claim-the changes in her work schedule, assignment of unpleasant tasks as punishment, the verbal and physical abuse-did not in themselves amount to tangible employment actions. Such actions might amount to a constructive discharge, though, and panel finds that the employee presented a genuine issue of material fact on this point. (Panel acknowledges that the circuit’s requirement that a hostile work environment must be deliberately intended to force employee to quit work is in possible tension with Pennsylvania State Police v. Suders.) “A reasonable person could certainly find intolerable a working situation where a corporate official is utterly unconcerned about sexually-tinged physical assaults inflicted on a subordinate by a supervisor.” Nevertheless, under Suders a constructive discharge must be precipitated around a “company act,” and here the only act that the plaintiff can point to (district manager’s failure to stop manager’s conduct, and a failure to take any steps to protect plaintiff from manager) was not such an act. Hence, Faragher/Ellerth applies on remand; employee presents genuine issue of material fact about whether employer acted reasonably on the employee’s complaints.

King v. McMillan, 594 F.3d 301, 108 FEP 702 (4th Cir. 2010). Panel: MICHAEL, King, Agee. Claims on Appeal: Title VII harassment (sex). State tort claim against individual officer (not discussed here). Disposition Below: Judgment after a jury verdict ($50,000 compensatory damages) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: New sheriff was properly substituted as successor under Fed. R. Civ. P. 25(d). Testimony of other women who claimed to have been harassed by the same sheriff properly admitted where it is relevant to (1) whether the sheriff’s conduct was because of the plaintiff’s sex, and (2) whether the conduct is severe or pervasive. District court did not abuse its discretion in admitting such evidence even in the light of a proposed stipulation by defendant that the conduct was “because of” sex. No FRE403 problem where jury was instructed about the relevance of the testimony and other harassing events were in the same timeframe as the plaintiff’s claim. No error in declining to instruct jury that other-harassment evidence was only admissible for the Title VII claim, not the battery claim. No abuse of discretion in denying a new trial.

Pueschel v. Peters, 577 F.3d 558, 106 FEP 1820 (4th Cir. 2009). Panel: GREGORY, Michael, King. Claims on Appeal: Title VII and Rehabilitation Act harassment. MSPB claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee not subjected to hostile work environment where all of the allegedly harassing activities occurred after she left the workplace.

Brown v. Nucor Corp.,576 F.3d 149, 106 FEP 1718 (4th Cir. 2009). Panel: GREGORY, Michael [AGEE, dissenting in part]. Claims on Appeal: Title VII and § 1981 harassment and promotion. Disposition Below: Class certification denied [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Panel reverses and remands with a mandate to certify a Rule 23(b)(3) class. On the harassment class, the panel holds unanimously that (1) the different production departments should (contrary to the district court’s finding) be treated as one “environment,” because the harassment occurred every, and “the racist acts had plant-wide repercussions and affected all black employees”; (2) for purposes of commonality, the district court erred in denying weight to “affidavits of employees in one department . . . to prove a plantwide hostile environment that affected employees in other departments”; and (3) the claims of named plaintiffs who worked in the beam mill should have been held typical of claims of absent class members outside of their department. On the promotion claim, the panel splits 2-1. The majority holds that (1) allegations of “a practice of disparate treatment in the exercise of unbridled discretion . . . rais[es] questions of law and fact common to all [subject] black employees” (quoting Lilly v. Harris-Teeter Supermarket, 720 F.2d 326, 333 (4th Cir. 1983)); (2) the district court erred in disregarding direct evidence of a practice of discrimination (admission by supervisor that he would not promote blacks, a pattern of promoting of whites with less tenure), which was sufficient by itself to establish a common issue; (3) the class addition ally “presented valid statistical evidence that independently indicates a disparate impact and disparate treatment in job promotions at Nucor, and . . . that an in-depth assessment of the merits of appellants’ claims at this stage would be improper”; and (4) it was error to hold that a Title VII promotion case presented an inherent conflict of interest among black candidates.

EEOC v. Central Wholesalers, Inc., 573 F.3d 167, 106 FEP 1377 (4th Cir. 2009). Panel: SHEDD, Agee[Williams, did not participate]. Claims on Appeal: Title VII harassment (race, sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Black, female employee alleges “a steady stream of racial and gender epithets” by four white male co-workers who “engaged in inappropriate racial and gender-based conduct” over a two-month period, including daily use of offensive language (e.g., “b***h,” “n****r”); workplace pornography; ethnic/sexual jokes; and “blue-colored dolls with mop-heads [displayed] in [employee’s co-workers’] offices … hanging by nooses tied around their necks.”. EEOC presented a genuine issue of material fact on each of the elements of its hostile work environment claim. Most notably, the court holds that (1) the regular use of the word “bitch,” about women generally or the employee in particular, supports an inference that the harassment is based on sex; (2) the habitual use of race and gender epithets could be found severe or pervasive; and (3) the employer’s failure to take progressive steps to reprimand, demote or suspend the offenders was evidence that its corrective efforts were ineffective.

Cochran v. Holder, 564 F.3d 318, 106 FEP 202, 21 A.D. Cases 1441 (4th Cir. 2009). Panel: MOTZ, Wilkinson, Traxler. Claims on Appeal: Title VII constructive discharge and failure to hire. Disposition Below: Dismissed for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Ninety-day trigger for filing a civil action against a federal agency accrues anew under 42 U.S.C. § 2000e-16(c) and 29 C.F.R. § 1614.405(b) when the party files a timely motion to reconsider.

Jones v. Calvert Group, Ltd., 551 F.3d 297, 105 FEP 129 (4th Cir. 2009). Panel: TRAXLER, Shedd, Hamilton. Claims on Appeal: 1. Title VII (sex, race) and ADEA termination. 2. Title VII and ADEA retaliation. Disposition Below: 1. Dismissed for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. 2. Dismissed for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: 1. Dismissed [defendant] 2. Reversed [plaintiff]. Grounds: 1. Where first charge was withdrawn in the course of a settlement, and the second charge did not list discrimination, employee failed to use EEOC administrative remedies and court lacked subject-matter jurisdiction. 2. Morgan rule addresses only the issue of when the limitations clock for filing EEOC charge begins ticking with regard to discrete unlawful employment practices. It does not purport to address the extent to which an EEOC charge satisfies exhaustion requirements for claims of related, post-charge events. In this case, post-charge acts of retaliation do not need to be subject of a second charge.

Ziskie v. Mineta, 547 F.3d 220, 104 FEP 1377 (4th Cir. 2008). Panel: WILKINSON, Niemeyer, Duncan. Claims on Appeal: 1. Title VII harassment (sex). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff] 2. Affirmed [defendant]. Grounds: 1. District court erred in holding that only those acts of harassment directed at the employee herself could be considered as evidence that the harassment was severe or pervasive. Rejection of co-worker’s affidavits was thus an abuse of discretion. On remand, district court must still decide whether employee presented genuine issue of material fact about (1) whether the harassment was sex-based (versus possibility that the men at her worksite resent her personally, and not because of her gender, where “[v]irtually all of the specific incidents of harassment directed at her occurred after the summer of 2002, when she abused her sick leave in order to retain her old part-time schedule when she was supposed to be working full-time”; and (2) whether behavior was objectively hostile in the absence of physical touching, sexual propositioning or graphic sexual talk. 2. No evidence that miscellaneous adverse actions were motivated by retaliatory animus.

Lightner v. City of Wilmington, 545 F.3d 260, 104 FEP 1155 (4th Cir. 2008). Panel: WILKINSON, Hamilton, Cacheris. Claim on Appeal: Title VII suspension (race, sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee who admitted that the real reason for his suspension was for his whistleblowing activities about ticket fixing vitiated claim of discrimination under 42 U.S.C. § 2000e-2(a).

Buckley v. Mukasey, 538 F.3d 306, 104 FEP 1 (4th Cir. 2008). Panel: KING, Duncan, Roth. Claim on Appeal: Title VII promotion (race, retaliation). Disposition Below: Judgment as a matter of law and judgment after a jury trial [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in granting objection to plaintiff introducing, as background evidence to her retaliation action, facts about the Segar class action. Plaintiff was denied promotion expressly out of concern that she was assisting the class action in her official capacity as a senior inspector by inviting the Government Accounting Office to participate in investigation of the agency’s employment practices. The district court improperly adjudged the Segar evidence (about the history of the case and the consent decree) as mere propensity evidence and excluded it under FRE401-403 and 404(a). Panel holds that plaintiff did not seek to use such evidence to establish either a general propensity to discriminate against African-American employees within the DEA, or a more specific racially discriminatory animus on the part of the decision makers in her case, but instead to demonstrate retaliatory animus (i.e., “that the pendency of Segar and the long history of its burden on DEA weighed heavily on the minds of the principal decision-makers, and that, ultimately, those decision-makers failed to promote Buckley because of her involvement in the litigation.” Exclusion of the background evidence affected her substantial rights and mandated retrial of the retaliation and discrimination claims. The court also reversed, on the same reasoning, the judgment as a matter of law on the retaliation claim. Panel also directed reconsideration of the district court’s denial of an adverse-inference instruction owing to the government’s negligent destruction of electronic documents during the litigation. The panel held that the district court applied too strict a standard against the plaintiff to excuse the agency’s failure to preserve the documents. No need to show bad faith, if destruction was otherwise intentional, willful, or deliberate.

Middlebrooks v. Leavitt, 525 F.3d 341, 103 FEP 261 (4th Cir. 2008). Panel: MOTZ, Duncan, Brinkema. Claim on Appeal: 1. Title VII hiring (race, retaliation). 2. Equal Protection hiring. Disposition Below: 1. Dismissal for lack of subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1) [defendant]. 2. Dismissal for lack of subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1) [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. As an applicant for a position in of the United States Public Health Service Commissioned Corps (“PHSCC”), plaintiff’s claim was exempted for sovereign immunity under 42 U.S.C.§ 2000e-16(a) and 42 U.S.C. § 213(f) only if plaintiff was not applying to uniformed services (versus civilian service with the Nat’l Institutes of Health). Record was not complete on how this position was categorized, so had to be remanded. 2. Fifth Amendment equal protection claim dismissed because (1) Title VII provided the exclusive remedy for race discrimination in federal employment; and (2) under Feres immunity doctrine, the equal protection claim could not lie.

EEOC v. Sunbelt Rentals, 521 F.3d 306, 102 FEP 1735 (4th Cir. 2008). Panel: WILKINSON, Gregory, Duffy. Claim on Appeal: Title VII harassment (religion). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in holding that co-worker harassment of Muslim coworker – in wake of 9/11 terrorism and Beltway sniper incidents – was not severe or pervasive on grounds that workplace was already coarse, some harassment lacked any religious nexus, and the acts that were specifically about religion were not severe or pervasive. Record (viewed from employee’s perspective) revealed numerous complaints and attempts to get co-workers to stop (showing unwelcomeness). Harassment was also because of religion: frequently called “Taliban” and “towel-head,” teased about kufi and beard. Record presented genuine issue of material fact about pervasiveness: anti-Muslim sentiment directed at only Muslim employee in workplace; repeated comments disparaging religion; stating that he cannot be a patriotic American (though he was an Army vet); harassed about appearance, called a “fake Muslim” because of his beard; harassed about taking prayer breaks (told that if he took a break upstairs it would be “then end of him”); general expressions of hostility against Muslims, anti-Muslim crudities (employee lifted a metal detector to his turban); slurs made at Muslim customer; petty misbehavior (hiding timecard, unplugging computer). Panel also rejected alternative ruling that employer took adequate corrective measures. Record showed that company believed employee complained too often and dismissed as “paranoid” and “building a case against” the employer. Oral complaints not answered, even written complaint did not lead to discipline of harassing co-workers.

EEOC v. Firestone Fibers, 515 F.3d 307, 102 FEP 961 (4th Cir. 2008). Panel: WILKINSON, King, Floyd. Claim on Appeal: Title VII reasonable accommodation (religion). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee lab technician sought a Sabbath accommodation and up to fourteen addition al days off a year for other observances. After restructuring and layoffs, he was bumped out of the shift that enabled him to meet his religious obligations. Because of the collective bargaining agreement, the company could not feasibly shift him into another position or shift, nor could they require other employees to cover his Sabbath hours on an overtime basis. Obligation of reasonable accommodation (and corresponding defense of “undue hardship” in the same section) required only that employer minimize, not eliminate conflict with religious obligation (noting split in circuits). Burden is on the employer to show either (1) that it has provided the plaintiff with a reasonable, though not necessarily a total, accommodation or (2) that such reasonable accommodation was not possible without causing undue hardship to the conduct of its business. Here the court held that the employer did reasonably accommodate the employee, within the terms of the CBA, by providing a seniority-based bidding system for working shifts; fifteen, eight-hour vacation days and three floating holidays (including the ability to break the time up into half-day increments); the ability to switch shifts twice a quarter (eight times a year); and sixty hours unpaid leave time. addition ally the employee’s supervisor allowed the employee more than the allocated half-day vacations and scanned the shift assignments every week to look for places to slot the employee. Employer thought it could not accommodate request because “other lab employees would be imposed upon from the standpoint of being required to work to cover for [him].” While co-workers apparently did not complain about covering his time, employer had reason to believe that such forbearance may be short-lived. Employer was not obligated by Title VII to give the employee a special leave of absence for a recurring obligation: “If Firestone were to grant a special exception for Wise for recurring obligations, it would have imposed the same type of burdens on the seniority-based scheduling system and Wise’s fellow employees as if it had excused him from the attendance policy altogether.”

EEOC v. Federal Express Corp., 513 F.3d 378, 20 AD Cases, 204 (4th Cir. 2008). Panel: KING, Gregory, Wilson. Claim on Appeal: ADA failure to accommodate. Disposition Below: Judgment after a jury trial; $8,000 in compensatory damages and $100,000 in punitive damages [plaintiff]. Outcome on Appeal: Affirmed [defendant]. Grounds: Jury could have found that employer neither accommodated the employee (providing signer for deaf worker), nor engaged in good-faith efforts to comply with the law, warranting award of punitive damages. Record showed that manager knew of his ADA obligation to provide reasonable accommodations to employee for his deafness disability, and thus perceived the risk that his failure to do so would violate the ADA. For example, although manager did not receive any ADA training from company, he had contacted other company officials seeking clarification on what might constitute reasonable ADA accommodations for the employee. Concerning good faith/Kolstad, although company maintained a formal ADA compliance policy, the company failed to respond to repeated inquires by manager to supply an signer or to train manager how to respond. Regarding evidence of reprehensibility, supervisors were plainly indifferent to fact that failure to accommodate disability could jeopardize his safety, and potentially implicate the safety of others. Employee consistently missed updates about important subjects such as workplace safety, handling dangerous goods, interpreting hazardous labels, and potential anthrax exposure. Size of award was reasonable, in spite of 12.5 to 1 ratio of punitive to actual damages: in addition to finding that the award met the due process guideposts (BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996)), it also observed that the award was well within the caps set under Title VII.

Wilson v. Phoenix Specialty Mfg., 513 F.3d 378, 20 AD Cases 193 (4th Cir. 2008). Panel: MICHAEL, Ellis [NIEMEYER, dissenting]. Claim on Appeal: ADA regarded-as termination. Disposition Below: Judgment after a bench trial; $177,783 in back pay, $10,000 compensatory damages and $10,000 punitive damages [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Record supported the finding that the employee with Parkinson’s was regarded as disabled (i.e., substantially limited in the major life activities of seeing and performing manual tasks, such as using the computer) when he was terminated. Evidence included an e-mail from the president to HR stating that the employee was disabled and “qualifies for ADA designation,” history that the company originally ignored the employee’s medical release to return to work, a pattern of senior management treating the employee “like [he] was a handicapped person,” and refusal to train or allow the employee to use the computer for tasks central to his job. Employer “believed that Wilson’s Parkinson’s symptoms were substantially more limiting than they actually were, as indicated in further findings by the district court and the record.” District court could have found that employer evaluated the employee inaccurately; doctor’s report showed that symptoms were under control with medication, and that employee with training could have performed essential tasks of supervisory job. The panel also found that the district court could have reasonably disbelieved the company’s various proffered reasons for the termination (gave different reasons to EEOC, claimed for first time at trial that employee’s job became redundant with new computer system). Record revealed scheme to fire employee and replace with employee without disabilities. (Panel does not reach circuit split on providing accommodation to regarded-as employee, because verdict on discrimination made it unnecessary to reach accommodation issue..) On cross-appeal, district court did not abuse discretion by denying front pay where physician rated him unemployable by the end of 2005.

Frahm v. United States, 492 F.3d 258, 100 FEP 1631 (4th Cir. 2007). Panel: WIDENER, Duncan, Goodwin. Claims on Appeal: Enforcement of settlement agreement . Disposition Below: Judgment of no relief for employee [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: IRS reneged on settlement of a Rehabilitation Act claim, failing to purge employee’s personnel file of an allegedly discriminatory suspension. Employee’s only remedy under the contract was to refile her original claim of disability discrimination. By regulation in EEO cases against the federal government, 29 C.F.R. § 1614.504(a) limits remedies for breach of a settlement agreement to either having the “terms of the settlement agreement be specifically implemented or, alternatively, [having] . . . the complaint be reinstated for further processing from the point processing ceased.”

Depauli v. Vacation Sales Associates, LLC, 489 F.3d 615, 100 FEP 1249 (4th Cir. 2007). Panel: NIEMEYER, Duncan, Hamilton. Claim on Appeal: Title VII retaliation. Disposition Below: Judgment following a jury verdict ($7.7 million compensatory/punitive award capped at $200,000; $208,708 backpay, fees/costs of $239,865.38) [plaintiff]. Outcome on Appeal: Affirmed as modified [plaintiff]. Grounds: Evidence supported verdict that collapse in sales manager’s performance was pretext for retaliation (witness testified that president of company told vice president “I’m not going to have any lawsuits on my watch”; same witness testified that VP expressed hope that placing employee in supervision would make her quit “for going to the EEOC; [the president] doesn’t want her here any longer”; other employee said that when she told company she was going to file an EEOC charge, VP told her that “You don’t want to do that . . . You will end up like Pam Depaoli”; plaintiff testified that VP admitted she did not get promotion because of filing her EEOC charge; receptionist testified that she was directed to steer interested customers away from the plaintiff and unsuccessful group tours to her group). Plaintiff not charged with proving that the efforts to sabotage actually worked, only that the attempt to manipulate her sales numbers is probative of intent to retaliate. Amount jury actually awarded immaterial to issue of excessiveness; evidence of emotional distress and willfulness of employer supported award. Mathematical error in calculating back pay (caused by using wrong figure for set-off) corrected. Cap is based on number of employees when event occurred, not the year of trial (42 U.S.C. § 1981a(b)(3)). District court erred in awarding fees at unsupported $305-325/hr rate (based on what defense attorneys charged in the same case); awarded counsel instead at $225/hr.

Holland v. Washington Homes, Inc., 487 F.3d 208, 100 FEP 1060 (4th Cir. 2007). Panel: WILLIAMS, Duncan [KING, dissenting in part]. Claims on Appeal: 1. Title VII termination (race) and retaliation. 2. Title VII discrimination. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant] 2. Affirmed [defendant]. Grounds: 1. Although employer represented to state Department of Labor that employee was fired for lack of work (and changed date of termination), explanation that employee was really terminated for “gross misconduct” (allegedly threatening supervisor) was not pretextual. No evidence rebutted employer’s affidavits that manager sincerely believed that the employee made threats. Alleged conflict in testimony about when decision was made abandoned at oral argument. Employer gave rationale for it dual explanation (for benevolent reason, to preserve employee’s 401K and unemployment benefits). No inference can be drawn that the false reason was a pretext for discrimination or retaliation. 2. Employee failed to establish that he was adversely affected by assignment of territory that employee believed was blighted and difficult to sell in. Other claims of discriminatory actions were time-barred and could not be combined as a continuing violation.

Aleman v. Chugach Support Services, Inc., 485 F.3d 206, 100 FEP 707 (4th Cir. 2007). Panel: WILKINSON, King, Ellis. Claim on Appeal: 1. Section 1981 discrimination and retaliation (employee #1). 2. Section 1981 termination (employees #2 and 3). Disposition Below: 1. Summary judgment (defendant). 2. Summary judgment (defendant). Outcome on Appeal: 1. Reversed (plaintiff). 2. Affirmed (defendant). Grounds: 1. Title VII exemptions for Alaska Native Corporations and Indian tribes (42 U.S.C. § 2000e(b); 43 U.S.C. § 1626(g)) do not apply to claim under section 1981. Noting split with Tenth Circuit . Court rejects alternative argument that section 1981 does provide cause of action for retaliation. 2. Collective bargaining agreement clearly and unmistakably consigned statutory discrimination claims to grievance mechanism. That employees were Spanish-speaking and may not have understood the CBA irrelevant, because they are not parties to contract and union was able to bargain their rights under NLRA. No “meeting of the minds” between employer and individual employees in bargaining unit required to make CBA enforceable. Employer not required to furnish Spanish language translation of contract, or to impel the union to do the same for union members. Dispute over effective dates of CBA not material.

Campbell v. Town of Southern Pines, 483 F.3d 258 (4th Cir. 2007). Panel: TRAXLER, Wilkins, Gregory. Claim on Appeal: 1. First Amendment termination. 2. Equal Protection termination. Disposition Below: 1. Summary judgment denied on qualified immunity (plaintiff). 2. Summary judgment denied (defendant). Outcome on Appeal: 1. Reversed (defendant). 2. Dismiss for lack of appellate jurisdiction (plaintiff). Grounds: 1. Female police officer presented genuine issue of material fact whether termination in response to 13-page memorandum complaining about harassment and other misconduct constituted comment on matter of public concern (multiple instances of inappropriate conduct, lewd conduct and comments directed and plaintiff and others, improper treatment of members of the public, memo addresses sexual harassment in police department generally). Notes split of authority over whether complaints of harassment must be specifically for a pattern of conduct or merely seeks personal redress. Summary judgment entered on second prong of qualified immunity analysis, e.g., whether right was clearly established. Officer’s response to 13-page “rambling … memo … which focused overwhelmingly on personal grievances and vague gripes. 2. No jurisdiction over appeal of denial of summary judgment on qualified immunity, where only issues presented are disputed issues of fact about whether termination was motivated by gender.

Lettieri v. Equant Inc., 478 F.3d 640, 99 FEP 1569 (4th Cir. 2007). Panel: MICHAEL, Tilley, Johnston. Claim On Appeal: 1. Title VII termination (sex). 2. Title VII retaliation. State law contract (not discussed here). Disposition Below: 1. Summary judgment (defendant). 2. Summary judgment (defendant). Outcome On Appeal: 1. Reversed (plaintiff). 2. Reversed (plaintiff). Grounds : 1. District court erred in requiring employee to demonstrate on prima facie case that she was replaced by a man in her position — and by holding that ultimate choice of male by second decision maker was not probative of discrimination — when different decision makers performed the hiring and firing operations, and there was ample circumstantial evidence (firing manager recommended male employee for position, he was denied opportunity to fill the position during period of downsizing, plaintiff’s job reemerged in another part of the organization and was filled by male despite plaintiff’s excellent performance record and fact that successor manager brought her in to train her successor). Record also exposed firing manager’s animus toward women (many comments about women who have children at home and had long commutes, repeatedly recommended that plaintiff should return to New York to be with her family, comments about other women’s looks, manager attempted to demote her and removed responsibilities, final comment to plaintiff when fired was the she looked “pretty in pink”). 2. Passage of seven months between discrimination complaint and termination not determinative, because employee did not rely on temporal proximity; numerous intervening adverse acts intervened (stripping of supervisory responsibilities, staff, authority to negotiate with customers), manager signaled to management well before plaintiff’s termination that he wanted to eliminate her job, and same manager wanted to replace her immediately with a male employee.

Johnson v. Caudill, 475 F.3d 645 (4th Cir. 2007). Panel : DUNCAN, Wilkins, Widener. Claim on Appeal: § 1983 termination (sex). Disposition Below: Denial of qualified immunity [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: The district court denied qualified immunity to a county sheriff who fired a female narcotics detective. Detective was implicated in an alleged discrepancy found in a drug-purchase report that she submitted to her superiors. This discrepancy led to her removal from work with the state’s drug task force and eventually to her termination from her county employment by sheriff. Detective also claimed various instances where the sheriff supposedly denied her certain working conditions because of sex. While district court determined that there were disputed facts that precluded summary judgment, panel holds that the sheriff was qualifiedly immune from suit because his conduct did not violate the plaintiff’s clearly-established constitutional rights. Once state severed employee’s ties with the drug task force, she was unable to perform the core duties of her position under sheriff. As for other working conditions, record established that comparable males were treated the same way.

Gilliam v. SC Dept of Juvenile Justice, 474 F.3d 134, 99 FEP 865 (4th Cir. 2007). Panel: KING, Widener, Shedd. Claim on Appeal: Title VII harassment (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court erred in holding that employee had to allege severe or pervasive behavior within the 300 day charging period; under Morgan, only some of the activity had to fall within the 300-day window, and employee could benefit from continuing violation. Summary judgment affirmed on alternative ground that acts of harassment alleged by the employee (unfair write-ups for attendance, picayune complaints about performance, and even a claim of false imprisonment and assault by a manager) were not shown to be “based on race.” Apart from the absence of outright racial animosity, the employee also supposedly failed to identify white comparators or to provide sufficient detail to ascertain whether a racialist inference could otherwise be drawn. Declarations by African-American co-workers who allege that same manager treated them more harshly than the white co-workers were also found to have too little detail to be probative.

Jordan v. Alternative Resources Corp., 458 F.3d 332, 98 FEP 1400 (4th Cir. 2006) . Panel: NIEMEYER, Widener [KING, dissenting]. Claims on Appeal : Title VII, § 1981 and Md. state law retaliation. State law contract and tort claims (not discussed here). Disposition Below: Dismissal under Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee who heard one racial comment by a co-worker (“They should put those two black monkeys in a cage with a bunch of black apes and let the apes fuck them”), uttered in response to reported capture of snipers John Allen Muhammad and Lee Boyd Malvo, lacked a reasonable good-faith basis at the time that he opposed an employment practice that violated Title VII. No allegation that co-worker intended to continue making such statements. Allegations that same co-worker had been heard by others to make similar (but specified) statements did not make objectively reasonable the employees belief that he had been personally subjected to a hostile work environment.

Hux v. City of Newport News, 451 F.3d 311, 98 FEP 492 (4th Cir. 2006). Panel: WILKINSON, Niemeyer, King. Claims on Appeal : Title VII promotion (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Female firefighter/medic who sought promotion to fire captain did not create genuine issue of material fact about pretext, where interview scoring process and experience placed her significantly below successful male candidate; that employee can foster factual disputes over particular qualifications does not affect suitability of summary judgment, where she presents no genuine issue of material fact about her deficiencies in interpersonal and supervisory skills, or other candidates’ strenghts.

Howard v. Winter, 446 F.3d 559, 97 FEP 1729 (4th Cir. 2006). Panel: WILLIAMS, Wilkins, Shedd. Claims on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Court follows Seventh Circuit standard for supervisor under Faragher/Ellerth, requiring that harasser be able to take “tangible employment actions.” Male employee who allegedly harassed plaintiff was not “supervisor,” because he possessed only “occasional authority . . . to direct her operational duties,” and that such “minimal” authority did not “enable” his harassment. The court affirms summary judgment for the period prior to the employee’s first verbal complaint to a senior member of human resources. The Navy maintained an adequate anti-harassment policy and was not on notice of harasser’s behavior toward plaintiff (his use of offensive language and decoration of his workspace with pin-ups was not enough to signal actual suspicion of harassment). But after the employee orally informed a senior member of human resources – who advised employee to take notes about the harassment, but did not investigate or take corrective action – plaintiff presented a genuine issue of material fact about whether the Navy had been negligent in not following up.

Yashenko v. Harrah’s NC Casino Co., LLC, 446 F.3d 541 (4th Cir. 2006). Panel: MOTZ, Traxler, Jones. Claims on Appeal: Section 1981 job preference. FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Even if section 1981 allows employee to challenge Indian preferences that are otherwise privileged under Title VII, employee cannot pursue claim without joining tribe as a necessary party, under Fed. R. Civ. P. 19, tribe has sovereign immunity and tribe is indispensable party.

Patton v. Signator Ins. Agency, Inc., 441 F.3d 230 (4th Cir. 2006). Panel: KING, Widener [LUTTIG, dissenting]. Claim on Appeal: Age discrimination. Disposition Below: Enforcement of award [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Arbitrator committed manifest disregard of the law and award failed to draw from the essence of the agreement, because arbitrator implied one-year limitations period for filing a claim, even though proceeding was governed by agreement without an express limitations term (which superceded agreement that imposed one-year term). Limitation term would either be state law limit for employment discrimination claim or contract claim.

Laber v. Harvey, 438 F.3d 404, 97 FEP 846 (4th Cir. 2006) (en banc). Panel: WILLIAMS, Wilkins, Wilkinson, Luttig, Michael, Motz, Traxler, King, Gregory, Shedd, Duncan [WILKINSON, concurring] [WIDENER, concurring and dissenting] [NIEMEYER, concurring and dissenting]. Claim on Appeal: 1. Title VII promotion (religion). 2. ADEA promotion. 3. Title VII/ADEA retaliation. Disposition Below: 1. Dismissed under Fed. R. Civ. P. 12(b)(1) [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Court overrules Pecker v. Heckler, 802 F.2d 709 (4th Cir. 1986), and Morris v. Rice, 985 F.2d 143 (4th Cir. 1993), and holds that federal employee who prevails before EEOC’s Office of Federal Operations (OFO) but is unsatisfied with remedial award may not file a federal civil action in the district court seeking addition al relief without putting at issue de novo the OFO’s discrimination finding. (Noting split with Ninth Circuit.) While the proper objection is not subject-matter jurisdiction (which is furnished by 28 U.S.C. § 1331), the agency under such circumstances is entitled to summary judgment. Nevertheless, employee in this case was entitled to opportunity to amend complaint to add claim for liability as well as relief; district court abused discretion under Fed. R. Civ. P. 15(a) by denying plaintiff leave to amend. Delay alone insufficient basis to deny leave to amend. Proposed amendment, because it was offered post-judgment, required employee to obtain Fed. R. Civ. P. 59(e) motion to vacate judgment. District court’s denial of Rule 59(e) motion was also an abuse of discretion. Plaintiff’s attempted amendment was not in bad faith (he had been following circuit law as at stood at the time of the pleading); agency would not be prejudiced by amendment; and amendment was not futile. Moreover, although there was argument that amendment was not proposed until more than 90 days after OFO’s final order, agency did not present this argument below, although it may present it on remand. 2. Employee did not make out prima facie case because he did not show he met the qualifications for the particular open job. 3. Employee did not show that proffered reason for failure to hire (lack of qualifications) was pretext for retaliation.

Wartch v. Ohio Casualty Ins., 435 F.3d 510, 97 FEP 563 (4th Cir. 2006) . Panel: TRAXLER, Motz, Shedd. Claims on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Noting split with Sixth Circuit, court holds that where employer alleges poor job performance as its reason for termination, it is correct at the prima facie level to consider whether employee was meeting legitimated job expectations, rather than defer consideration until third stage. Employee may at first stage argue that expectations were not legitimate. Evidence of reprimands about organization and procedures, and other counseling, not too subjective to consider at the first stage. Also no evidence that employee was replaced by substantially younger individual; plaintiff did not show that he was terminated as part of a RIF. No mixed-motive analysis where allegedly direct evidence (statement that “hiring people at that age, they didn’t get the work out of them that they did younger people) had any nexus to termination. Single audit score, even if supposedly “rigged,” not related to substantial evidence of inadequate performance. Alleged statistical evidence too speculative to create inference of discrimination.

Baqir v. Principi, 435 F.3d 510, 97 FEP 563 (4th Cir. 2006) . Panel: KING, Harwell [GREGORY, dissenting in part]. Claims on Appeal: 1. Title VII termination (race, religion, national origin). 2. ADEA termination. 3. ADEA harassment. 4. Title VII/ADEA retaliation. Disposition Below:.1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. 4. Affirmed [defendant]. Grounds: 1. Plaintiff, who was hired as interventional cardiologist was unable to meet professional standards in that job, so plaintiff’s case failed on prima facie element (i.e. meeting legitimate job expectations). No evidence that peer evaluations were tainted by impermissible considerations. 2. Plaintiff presented sufficient evidence to infer age discrimination (remarks that age was the “major and only factor” for discharge and field was “meant for people in their thirties”) was evidence of age animus, where it was made by decision maker on board during decision on employee’s future. But under Price Waterhouse, employer would prevail as a matter of law because of employee’s inability to perform job. 3. Occasional rude treatment and denial of proctorship insufficent to constitute severe or pervasive behavior. 4. Assuming that there is a claim for retaliation for federal employees (despite absence of comparable section under sections governing federal employees), and assuming plaintiff proves prima facie case, staff who committed alleged acts of retaliation were not shown to have known about the employee’s complaint.

Davani v. Virginia Dep’t of Transp., 434 F.3d 712, 97 FEP 380 (4th Cir. 2006) . Panel: WILLIAMS, Niemeyer, Shedd. Claims on Appeal: Title VII termination and retaliation. Disposition Below: Dismissed for lack of subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Reversing dismissal of claim on Rooker/Feldman grounds in light of intervening Exxon Mobile Corp. v. Saudi Basic Indus. Corp., 125 S. Ct. 1517 (2005).

Heiko v. Columbo Savings Bank, FSB , 434 F.3d 249, 17 A.D. Cases 780 (4th Cir. 2006). Panel: WILKINSON, Wilkins, Gregory. Claims on Appeal: 1. ADA promotion. 2. ADA constructive discharge. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Parties agree that end-stage renal disease is a physical impairment. Elimination of bodily waste, for employee who takes part in physically-demanding regimen of kidney dialysis, is a major life activity. Employee suffered a substantial limitation as a matter of law, where dialysis demanded 12 hours of treatments, caused him to be exhausted and nauseated, and treatment was expected indefinitely until transplant could be arranged. Genuine issue of material fact on merits of promotion claim. Employee presented prima facie case, plus evidence that plaintiff had comparatively greater relevant experience than other candidate, all indications were that the employee was progressing to promotion, other candidate had previously been considered weak, and employee’s performance evaluations generally show him much stronger than other candidate. Manager had commented that employee was not suited for promotion (“look at your situation”). 2. Employer established as a matter of law that employer tried to accommodate employee; denial of single promotion not enough to create intolerable conditions.

Chacko v. Putuxent Institution, 429 F.3d 505, 96 FEP 1633 (4th Cir. 2005) . Panel: WILKINSON, Williams, Conrad. Claims on Appeal: Title VII harassment [national origin]. Disposition Below: Judgment entered after a jury trial; $1,160,000 damages (capped at $300,000). [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Co-worker harassment was not within the scope of plaintiff’s two charges, which alleged specific episodes of harassment by supervisors; neither mentioned coworker harassment or national-origin epithets. “The administrative charges thus dealt with different time frames, actors, and conduct than the central evidence at trial.” “[A] reasonable investigation of discrete instances of supervisor misconduct not involving name calling could not be expected to lead to a continuous pattern of nonsupervisory misconduct which did involve name calling.”

Miles v. Dell, Inc., 429 F.3d 480, 96 FEP 1633 (4th Cir. 2005) . Panel: LUTTIG, Hamilton, Dever. Claims on Appeal: 1. Title VII termination (sex, pregnancy). 2. Title VII retaliation. Disposition Below : 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal : Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds : 1. Panel adopts new standard in McDonnell Douglas prima facie case that fourth prong need not be met (e.g. replacement by person outside of protected group) if employee was replaced by a different decision maker than the alleged discriminator, thus bringing circuit in line with all other circuits. Applied to this case, court finds that prima facie case is met by female plaintiff fired by her supervisor one year after her maternity leave. Supervisor had wanted to replace plaintiff with a man, but was overruled by management. District court erred also in finding that in pregnancy discrimination setting, protected group is women, instead of subset of pregnant women. Despite year-long lapse between announcement of pregnancy and termination, inference of discrimination can be located in actions of supervisor to replace her while she was pregnant, then increased her quotas in the hope of forcing her out. 2. Plaintiff failed to check “retaliation” box on EEOC charge, and claim could not reasonably been expected to follow from an administrative investigation of the charge. Charge did not mention protected activity or opposition. Letter by employee’s lawyer five months later, not served on employer, does not cure defect.

Taylor v. Federal Express Corp., 429 F.3d 461, 17 A.D. Cases 498 (4th Cir. 2005): Panel: MOTZ, Traxler, Shedd. Claims on Appeal : ADA reasonable accommodation. Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds: Lifting restriction that disqualified individual with back pain from 1,871 kinds of jobs (according to vocational report), not a significant limitation in the major life activity of working, where record of employee’s endurance, flexibility and strength finds him qualified for 1,400 different types of jobs (over 100,00 actual jobs in his geographic region) and able to engage in a wide variety of daily activity.

American General Life and Accident Ins. Co. v. Wood, 429 F.3d 83, 96 FEP 451 (4th Cir. 2005) . Panel: GREGORY, Traxler, King. Claims on Appeal: W. Va. discrimination (sex). Disposition Below: Arbitration agreement enforced [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Arbitration agreement, though a contract of adhesion, enforceable under West Virginia law and the FAA. Court found no unfair provisions, and declined to give effect to state case law which set a higher standard for arbitration clauses in adhesion contracts as inconsistent with the FAA, in light of intervening U.S> Supreme Court decisions. No evidence of biased rules or excessive fees. Joiner of individual supervisor in case not a necessary and indispensible party under Fed. R. Civ. P. 19.

EEOC v. Navy Federal Credit Union, 424 F.3d 397, 96 FEP 641 (4th Cir. 2005). Panel: KING, Gregory, Hamilton . Claims on Appeal: Title VII retaliation. Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Reversed [plaintiff]. Grounds: EEOC not precluded by laches from pursuing a claim held up by a local FEP (fair employment practice) agency with which it had a worksharing agreement. On the merits, the plaintiff (who was assigned to supervise an employee who complained of racial discrimination) presented a triable issue of fact about whether she opposed an act of retaliation (transfer of complaining employee and preparation of a misleading performance evaluation that employer asked the plaintiff to sign). Plaintiff also presented triable issue of fact about whether she reasonably believed that the employer’s conduct was retaliatory (transfer and evaluation were seen by plaintiff as prelude to termination of other employee, not purely administrative). Plaintiff presented genuine issue of fact about pretext, by showing that her alleged deficiencies in supervisory skills were rebutted by recent and favorable evaluation and performance awards), and that after plaintiff complained she was given a “special,” unfavorable review. Plaintiff also presented evidence that her supervisor though that by complaining she was “doing herself in” and should start looking for other employment.

Sterling v. Tenet, 416 F.3d 338, 96 FEP 225 (4th Cir. 2005). Panel: WILKINSON, Wilkins, Gregory. Claims on Appeal: Title VII discrimination (race) and retaliation. Disposition Below: Rule 12(b)(6) motion to dismiss [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Case against CIA by covert agent barred by “state secrets doctrine,” because case would inevitably require evidence that he was treated less favorably than similarly situated, non-African American agents and compel CIA to expose decision-making process that led to assignments.

Venkatraman v. REI Systems, Inc., 417 F.3d 418 (4th Cir. 2005). Panel: WIDENER, Duncan, Quarles. Claims on Appeal: Title VI and VII discrimination (race, national origin) and retaliation. Federal retaliation claim under 8 U.S.C. § 1182(n) (not discussed here). Disposition Below: Rule 12(b)(6) motion to dismiss [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Title VII claim fails owing to failure to file charge and exhaust administrative remedies. Title VI claim fails because it was waived by not citing claim in complaint or alleging foundational facts such as federal financial assistance.

Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 96 FEP 287 (4th Cir. 2005). Panel: MOTZ, Widener, Hamilton. Claims on Appeal: 1. Title VII retaliation. 2. Title VII discrimination promotion. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Plaintiff waived objection to magistrate’s report and recommendation, under Fed. R.. Civ. P. 72(b), by not renewing objection after matter was remanded to magistrate to produce new, corrected report. 2. Desert Palace did not abolish pretext method of proof. McDonnell Douglas prima facie test by itself does not prove the existence of a motivating factor under 42 U.S.C. § 2000e-2(m). Plaintiff does not foreclose using determining or motivating factor (e.g. mixed-motive) analysis where complaint is silent on method of proof. Although plaintiff was assumed to have made out prima facie case, she did not rebut evidence that white candidate was rated the best on nine factors by two managers, and an African-American manager agreed with that assessment. Although plaintiff contended she had greater experience, that was only one preferred factor in the hiring process.

Hill v. PeopleSoft USA, Inc., 412 F.3d 540, 95 FEP 1708 (4th Cir. 2005) . Panel: HAMILTON, Motz, Gregory. Claims on Appeal: Title VII discrimination and harassment (sex). Disposition Below: Denying motion to compel arbitration [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: District court, under Maryland law, erred in looking beyond terms of agreement to determine that the contract was not supported by consideration (because the employer reserved the right elsewhere to terminate the arbitration program without notice). On the face of the contract, there was no reservation of rights and both parties were bound equally to arbitrate.

Anderson v. Westinghouse Savannah River Co, 406 F.3d 248, 95 FEP 1121 (4th Cir. 2005). Panel: WIDENER [NIEMEYER, dissenting in part] [GREGORY, dissenting in part]. Claims on Appeal: 1. Title VII and §1981 promotion and compensation disparate impact (race). 2. Title VII and §1981 promotion and compensation disparate treatment (race). 3. Class certification . Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Certification denied [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Reversed in part [plaintiff]. Grounds: 1. District court did not abuse discretion by excluding (1) expert opinion by Dr. Bradley under FRE703 that used EEO categories instead of actual job categories; (2) draft Department of Energy report, excluded as hearsay that did not satisfy FRE803(8) because of lack of reliability. Plaintiff did not make out prima facie case because evidence of causation was excluded, study did not regress for relevant factors such as performance at interviews, experience and education. Interview process was not wholly subjective or discretionary. 2. For each of three promotions, assuming plaintiff met prima facie requirements, she did not rebut as pretextual use of other criteria (ratings assigned through promotional process for core and functional competencies, relevant experience) over plaintiff’s length of service and educational credentials. Evidence that supervisor “preselected” one candidate not sufficient to create inference of race bias. 3. Plaintiff lacked standing and was not adequate to represent class because summary judgment was granted as to her disparate impact pay and promotion claims and she voluntarily dismissed disparate treatment merit pay claim. Promotion claim was not entirely disposed of on summary judgment; claim remanded to remain on district court calendar for a reasonable period to allow a new representative plaintiff to pursue.

EEOC v. Seafarers Int’l Union, 394 F.3d 197, 95 FEP 35 (4th Cir. 2005) . Panel: WILKINSON, Michael, King. Claims on Appeal: ADEA hiring. Disposition Below: Motion to dismiss denied [plaintiff]. Outcome on Appeal: Affirmed on interlocutory appeal [plaintiff]. Grounds: Uphold EEOC regulation extending ADEA prohibitions to “all apprenticeship programs” (29 C.F.R. § 1625.21). Although ADEA did not expressly extend to apprenticeship, regulation was entitled to Chevron deference.

Wheatley v. Wicomico County, MD, 390 F.3d 328, 94 FEP 1409 (4th Cir. 2004). Panel: WILKINSON, Luttig, Hudson. Disposition Below: EPA/Title VII pay discrimination (sex). Disposition Below: Judgment as a matter of law [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds : Plaintiffs failed to show as a matter of law that their positions as department managers were equivalent to male department heads in skills and responsibility, despite sharing general supervisory duties (budgeting, monitoring employees, etc.). Plaintiffs attempt after close of case-in-chief to recast comparison to other male employees in comparable grade codes was waived because it was presented too late in the proceedings and posed unfair prejudice to defendant.

Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 94 FEP 577 (4th Cir. 2004). Panel: BEEZER, Widener, Williams. Claims on Appeal: 1. Section 1981 termination or constructive discharge. 2. Section 1981 retaliation. 3. Section 1981 failure to promote. 4. Section 1981 harassment. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Summary judgment [defendant]. Outcome on Appeal:1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. 4. Affirmed [defendant]. Grounds: 1. Plaintiff’s active job search while he was employed at defendant, culminating in his resignation (a month prior to the defendant tendering a severance agreement) negates any genuine issue of material fact about actual discharge. Regarding constructive discharge, plaintiff did not present genuine issue either that employer’s behavior was intolerable (mostly negative comments about his performance), and no evidence that behavior was motivated to pressure plaintiff to resign. 2. Plaintiff suffered no adverse employment action (exclusion from certain communications, negative evaluation, shunning). 3. Employees selected over plaintiff for promotion was chosen because of his prior client services; plaintiff did not raise genuine issue of material fact about pretext. 4. No evidence of racially-offensive conduct directed at plaintiff (much of plaintiff’s evidence regards other employees). No evidence that friction between plaintiff and his supervisor was because of race.

Price v. Thompson, 380 F.3d 209, 94 FEP 449 (4th Cir. 2004). Panel: BOWMAN, Niemeyer, Wilkins. Claim on Appeal: Title VII retaliatory failure to hire. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court erred in finding that plaintiff could not establish by circumstantial evidence that decision maker knew he filed EEO complaint (manager knew that one of two applicants had filed complaint, indirect statements during interview implying knowledge, knowledge that plaintiff had investigated reason why he was not originally hired into prior position). Nine to ten month gap does not terminate inference of causation. Nevertheless, notwithstanding Reeves , plaintiff presented only a weak prima facie case, and was unable to rebut at least two of the four reasons the employer proffered for failure to hire plaintiff.

White v. BFI Waste Services, LLC, 375 F.3d 288, 94 FEP 73 (4th Cir. 2004). Panel: LUTTIG, King, Beezer. Claim on Appeal: 1. Title VII and §1981 compensation discrimination (race). 2. Title VII and §1981 hostile work environment (race). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Original grant of motion to dismiss on §1981 limitations erroneous in light of Jones v. R.R. Donnelley, which extended period from two to four years. However, Title VII limitations period is properly limited to period 300 days prior to filing charge, because each paycheck is a “discrete act.” Plaintiff could not use “single filing” rule to rely on another employee’s prior charge because he did not attempt to join the earlier action. No doctrine of “relation back” applies to prior charge of another employee. Claim that employer deliberately assigned African-American drivers lower pay codes relative to whites fails at prima facie stage, because plaintiffs did not identify similarly situated white drivers. If black or white drivers overstated their pay code, it was common practice for supervisors to lower the codes to match the code assigned by computer. Documentary evidence reveals no disparate treatment. Rule 56(f) motion properly denied upon magistrate’s finding that plaintiff did not exercise sufficient diligence to obtain requested discovery by waiting until just before the discovery cutoff to demand certain documents. 2. Limitation of Title VII harassment claims to events occurring within 300 days of filing of charge erroneous in light of Morgan . On the merits, plaintiffs presented genuine issue of material fact about whether supervisors subjected plaintiffs to severe or pervasive harassment, by using a variety of racial slurs (including “nigger,” “monkey,” and “boy” on a daily basis). Plaintiffs also raised issue of fact regarding employer liability where there was evidence that employees made complaints under the policy that were not investigated and company representative admitted that making a racial complaint was a “big mistake.” Triable issue of fact about whether harassment by different supervisors constituted continuing violation that would extend limitations period for claim.

Rohan v. Networks Presentations LLC, 375 F.3d 266, 15 A.D. Cases 1313 (4th Cir. 2004). Panel: DUNCAN, Widener [SHEDD, dissenting]. Claim on Appeal: ADA termination and harassment claims. Breach of contract (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff, a singer and actress with a touring company, suffered from posttraumatic stress disorder and depression. Her condition caused her to experience dissociative flashback episodes and she expressed suicidal intentions. She was involuntarily released from her contract. District court found that she was not “qualified” because she could not perform an essential function of her job (interacting with others). Court disagreed with this conclusion, but affirmed on alternative ground that she did not suffer an impairment. Panel concludes that she suffered an impairment assumes that “interacting with others” is a major life activity. It concluded that she was not substantially impaired in this activity because of her disability. For instance, she did not get along with her family because they did not believe her claims of incest (rather than her mental illness). She admitted that she was capable of social interactions, had half a dozen friends in the cast, and the thirty episodes she suffered in four months were sporadic and brief (no longer than 30 minutes). Plaintiff’s alternative argument – the company regarded her a limited in the ability to perform as an actress in a touring company. -rejected because employer at most considered her limited in a particular facet of a particular job (i.e. weathering the stress of a theatrical tour).

Eastern Assoc. Coal Corp. v. Massey, 373 F.3d 530, 15 A.D. Cases 1224 (4th Cir. 2004). Panel: WILKINSON, Luttig, Shedd. Claim on Appeal: W. Va state law disability discrimination. Workers’ compensation retaliation claim (not discussed here). Disposition Below: Motion to compel arbitration denied [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Collective bargaining agreement did not clearly and unmistakably confer state statutory civil rights claim to arbitration.

Williams v. Giant Food Inc., 370 F.3d 423, 93 FEP 1537 (4th Cir. 2004). Panel: SHEDD, Duncan [WIDENER, concurring]. Claim on Appeal: 1. Title VII and section 1981 promotion. 2. Title VII and section 1981 constructive discharge. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Claims prior to 1998 were time-barred, notwithstanding individual plaintiff’s “pattern or practice” and continuing violation allegations. Claims of two promotions presented genuine issue of material fact, where employer claimed that the jobs postings were distributed to the stores, but plaintiff (who was in charge of maintaining bulletin board and testified that she looked at it every day) stated that no such postings were made, and that she would have applied for at least one of them if she had known about them. Genuine issue of material fact also presented regarding whether plaintiff’s performance evaluations were products of racial discrimination, which would have made application for one of the promotions futile. 2. Plaintiff failed to demonstrate constructive discharge where supervisors allegedly said she was a poor manager, gave her poor evaluations, hollered at her in front of customers and made her work with a sore back.

James v. Circuit City Stores, 370 F.3d 417, 93 FEP 1625 (4th Cir. 2004). Panel: WILLIAMS, Widener, Motz. Claim on Appeal: Section 1981 promotion claims. Disposition Below: Summary judgment denied on timing grounds [plaintiffs]. Outcome on Appeal: Reversed [defendant]. Grounds: Following Jones v. R.R. Donnelley, court affirmed decision below on timing grounds, where district court correctly applied 4-year limitations period. But plaintiffs who were putative class members would not be allowed to rely on tolling agreement between law firm and defendant, where those plaintiffs were not clients of the law firm at the time and whose claims fell outside of alleged class claims that were known at the time of the tolling agreement.

James v. Booz-Allen & Hamilton, 368 F.3d 371, 93 FEP 1418 (4th Cir. 2004). Panel: WILKINSON, Traxler, Shedd. Claim on Appeal: Title VII reassignment Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Reassignment from Project Manager to Senior Associate, which did not change salary or bonus, resulted in a later raise in pay, and kept him in line for promotion not an adverse employment action. One-level reduction in employment evaluation from “excellent” to “highly effective” did not affect any terms or conditions of employment. No evidence of constructive discharge where only evidence presented was allegedly negative comments about plaintiff made during a partners’ meeting.

EEOC v. Warfield-Rohr Casket Co., Inc., 364 F.3d 160, 93 FEP 952 (4th Cir. 2004). Panel: WILKINS, Michael, Hamilton. Claim on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Statement by decision maker at time of termination that 56-year-old employee was “getting too fucking old” and that 33-year-old employee could “give him more years” constituted direct evidence under Price Waterhouse framework. Such “direct evidence” need not be corroborated to trigger mixed-motive analysis. Employer could not demonstrate as a matter of law that employee would have been fired for financial reasons (he offered to take pay cut) or friction with co-workers (disputed issue).

Mackey v. Shalala, 360 F.3d 463, 93 FEP 711 (4th Cir. 2004). Panel: WIDENER, King, Seymour. Claims on Appeal: 1. Title VII hiring (sex) 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant] 2. Judgment after a bench trial [defendant]. Outcome on Appeal: 1. Affirmed [defendant] 2. Affirmed [defendant]. Grounds: 1. Assuming that plaintiff met prima facie test, plaintiff failed to prove pretext where male candidate exhibited superior educational credentials, and only evidence in rebuttal was alleged violation of internal hiring procedures. 2. Plaintiff failed to make out prima facie case where job transfer was not accompanied by reduction in compensation or promotional opportunities, and plaintiff was found to lack credible evidence that transfer was causally related to her EEO complaints.

Mereish v. Walker, 359 F.3d 330, 93 FEP 608 (4th Cir. 2004). Panel: WILKINSON, Niemeyer, Hamilton. Claims on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Termination of three scientists during reduction in force. Assuming that plaintiffs satisfied prima facie requirements, agency’s explanation that scientists’ expertise was no longer central to current research priorities was legitimate and non-discriminatory. References to generational change (“young, bright, junior scientist,” “average age going higher”) do not present triable issue of pretext, and in any event referred to scientists with more recent training and current skills, rather than to age. Moreover, layoff decisions were made by category rather than by individual, and plaintiffs could not demonstrate that categories were selected as pretext for firing older scientists. Claim that RIF was unnecessary unsupported by record. No age bias pattern to layoffs; older scientists in preferred fields were saved from RIF. No direct evidence to trigger “mixed-motive” analysis per Price Waterhouse.

Love-Lane v. Martin, 355 F.3d 766, 93 FEP 282 (4th Cir. 2004). Panel: MICHAEL, Gregory, [WILKINSON, dissenting on first Amendment claim]. Claims on Appeal: Title VII, Section 1981 and 1983 demotion (race) First Amendment claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Although plaintiff obtained reversal of summary judgment on First Amendment claim (retaliation for speaking our against racial discrimination in discipline of elementary school students), summary judgment was affirmed on parallel claim that plaintiff suffered race discrimination by being demoted from school administration to teaching. Plaintiff presented genuine issue of material fact on prima facie burden, but despite evidence (credited on First Amendment claim) that the school board’s reason was pretextual, such a finding would not necessarily allow inference of race discrimination, given alternative explanation (that plaintiff was fired for speaking out against disciplinary policies).

Hedin v. Thompson, 355 F.3d 746, 93 FEP 311 (4th Cir. 2004). Panel: MOTZ, Luttig, Duncan. Claims on Appeal: ADEA and Title VII promotion claim (reverse discrimination). Disposition Below: Dismissed under Fed.R.Civ.P. 12(b)(1) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff’s claims barred by judicial “military exemption” and 42 U.S.C. §213(f), held to exclude commissioned officers in Public Health Service from coverage under anti-discrimination statutes.

Hill v. Lockheed Martin Logistics Mgt., Inc., 354 F.3d 277, 93 FEP 1 (4th Cir. 2004) (en banc). Panel: TRAXLER, Widiner, Wilkinson, Niemeyer, Luttig, Williams, Shedd [MICHAEL, Motz, King, Gregory, dissenting]. Claims on Appeal: Title VII and ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Individual to whom racial/age animus had been attributed was a safety inspector, a subordinate with no managerial authority over the plaintiff. Inspector allegedly singled the plaintiff out for violations because of race and age. These reports ultimately played a role in the plaintiff’s termination, but the court refused to consider this level of involvement enough to trigger application of the discrimination statutes. Court holds that survive a motion for summary judgment, plaintiff must show that “subordinate employee possessed such authority as to be viewed as the one principally responsible for the decision or the actual decision maker for the employer.”

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