Newsletter - January 2004

January
Year: 
2004

President’s Farewell Column

Fellow members,

This is my final installment as your President. It has truly been a privilege to serve this fine organization as President these last two years. I have enjoyed working with wonderful officers: Linda, Joe, Michael and Anjali. Together, we made a great team. Moreover, the officers received incredible support from our board and fellow members.

Reflecting over my time in MWELA, I have seen this organization grow since 1994 when I joined as a new member. I joined the board soon thereafter and have seen this organization provide great influence over the tri-state courts (state and federal) and administrative tribunals. I have seen a level of comradery unmatched by other organizations. Serving as Treasurer, Vice President and now President has given me a full perspective of the innerworkings of MWELA and the limitless opportunities that we have as civil rights practitioners to affect change and equality for workers and others whose civil rights have been trammeled. I strongly encourage each of you to offer your leadership to MWELA in whatever way you can. In the context of the National Employment Lawyers Association (“NELA”), MWELA has taken on a great leadership role. We have one of the largest chapters. We have influenced other NELA members to contribute one billable hour in an effort to pass the Civil Rights Tax Relief Act. We have worked to present brown bag programs to increase the knowledge base and skill level of our members. We have offered annual seminars to further our members’ substantive knowledge of the law, practice development and law practice management skills. Serving as your President during this tremendous period of growth and evolution for MWELA has been gratifying to say the least.

I plan to continue working with fellow members and representatives from the management bar to offer jury instructions and other materials to the D.C. Superior Court judges to further MWELA’s influence. We welcome more volunteers for this important project. We welcome more volunteers for our very important amicus work. May I remind you that MWELA’s amicus influence was a driving force behind the D.C. Court of Appeals decision in Lively. We can make a difference.

I also would like to remind everyone of our new computer projector for use. As we better ourselves as advocates, we much grow with the times and learn to use the tools that enable us to be more persuasive before judges and juries alike. If you are interested, please contact Jonathan Puth to take advantage of this member benefit. Lastly, I look forward to seeing as many of you as possible at our annual conference on April 20, 2004. Mark your calendars. The details are listed below:

"SHAPING YOUR CASE THROUGH DISCOVERY" 8:30am-9:30am Electronic discovery: Magistrate Judge Paul Grimm2 MWELA MONTHLY January 2004

9:30am-10:30am Key recent case developments which will shape our cases: David Cashdan and Julie Martin

10:30am-10:45am Break

10:45am-12:00pm Deposing the Alleged Discriminator: Lisa Banks Deposing the Human Resources representative: Rick Saltzman Rule 30(b)(6) deposition strategy and tactics: Linda Correia

12:00pm-1:30pm Luncheon Speaker: The Honorable Paul Friedman, U.S. District Court for the District of Columbia Presentation of “Lawyer of the Year” Award: Douglas Huron

1:45pm-2:15pm Deposing the Management Official: Fred Gittes

2:15pm-2:45pm Expert discovery strategy and tactics: Janet Vecchia

2:45pm-3:00pm Break

3:00pm-4:00pm C r e a t i v e d i s c o v e r y approaches and effective use of discovery devices: Elaine Fitch, Laura Stefani, Vic Glasberg

4:00pm-5:00pm “Give ‘em the old razzle dazzle: the courtroom as theatre” Thinking outside the box to the end game: Laurence S. Kaye

Like last year’s conference, this all day event will prove to be one of MWELA’s finest. Take care.

Eric L. Siegel President

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Newsletter - January 2004

Appeals, Verdicts & Settlements

Fees Denied to Out-of-State Attorney in MSPB Case

In an initial decision in the case Augustine v. DVA, MSPB Doc. No. SF-3443-00-0085-A-1 (MSPB Dec. 19, 2003), the MSPB SFRO Administrative Judge Phil Reed denied an attorney fee motion on behalf of a prevailing appellant because the attorney was not licensed in California although he was admitted to practice in two other states. The AJ ruled that the attorney must be in conformance with state ethical and other practice rules re the location of the case. In this instance, he was deemed not to be licensed in California and therefore could not receive attorney fees. This decision has important implications for all MSPB practitioners who practice in regional offices around the country where they are not admitted to local Bars. Please keep in mind that it's an initial decision and not binding precedent at this point, and no information is available at this time regarding whether the decision will be appealed. MWELA MSPB practitioners should keep a close eye on this development.

Case Remanded for Reconsideration of Punitive Damages Award

The D.C. Court of Appeals has vacated the punitive damage award in Daka v. McCrae in light of the decision in State Farm v. Campbell. Mara Verheyden-Hilliard and Carl Messineo represented the appellee, Tyrone McCrae. The compensatory damages award for $187,500 and the award of attorneys' fees and costs in the amount of $276,493.28 were left intact. However, the case has been remanded for consideration of an appropriate punitive award.

Melehy Prevails in Pregnancy Discrimination Case against Postal Service

Omar Melehy, of Zipin, Melehy & Driscoll, LLC, received an order from the EEOC entering judgment for the Complainant in a pregnancy discrimination case against the Postal Service. The EEOC awarded the Complainant $15,000 in compensatory damages; back pay, which will total about $240,000; the position applied for; and attorney's fees at Laffey Rates. The Administrative Judge was Frances Del Toro.

Quarles Certifies Class in Racial Discrimination Case

U.S. District Judge Quarles in Baltimore granted a motion to certify a class of African American workers at a large industrial laundry (Up-To-Date Laundry). The Judge certified the plaintiffs’ proposed class for liability purposes under Rule 23(b)(2), although he indicated that (b)(3) was also appropriate; required notice and a right to opt out; and conditionally certified the class for remedial purposes under (b)(3). He also denied the company's motion for partial summary judgment on the class representatives' individual claims. Five black former Up-To-Date employees sued the company in 2001, charging widespread racial discrimination. In approving the workers' request that the case be treated as a class action, Judge Quarles cited "direct evidence of a work environment permeated with vile racial slurs and bigotry." He also found that the "statistical and anecdotal evidence provides a sufficient basis . . . to conclude that [Up-To-Date] engaged in a pattern or practice of discrimination with respect to wages, hours, and work assignments, and created a workplace landscape permeated with racial hostility." In particular, Judge Quarles found that Up-To-Date's CEO Nancy Stair "has made racist remarks to employees," and her two sons, Brad and David Minetree, "have openly used 'Nigger' and other racial slurs to refer to African American employees." This is a solid certification decision, and we were aided by evidence showing incredibly raw racism. In a twist, the black workers were treated less favorably than their Latino counterparts, there being few white employees at the plant. Judge Quarles' January 23 decision is posted on the website www.hellerhuron.com, and it is anticipated that the Court will also post the decision. Up-To-Date's customers include the Johns Hopkins and Georgetown University hospitals and the University of Maryland Medical Center. It employs several hundred workers at its plant in Baltimore. No trial date has been set. Attorneys from Heller Huron represent the class.

EEOC Settles Religious Discrimination Suit Against Greyhound

EEOC v. Greyhound Lines, Inc., No. 3:02CV441 (E.D.Va. May 28, 2003). The EEOC settled a case alleging religious discrimination in violation of Title VII against Greyhound Lines for $50,000. This suit was brought on behalf of a relief bus driver in Richmond, Virginia. The driver, a Biblical Judaist, had requested not to be scheduled from sundown on Friday to sundown on Saturday, because that was his faith=s Sabbath day. Despite this request, the employer scheduled him to work during the Sabbath period although at times Greyhound did comply with some of his requests to not work then.

EEOC and Restaurant Enter Settlement Agreement Regarding Sex Discrimination

In December 2003, The Palm Restaurant in Washington, D.C. entered into a settlement agreement with the U.S. Equal Employment Opportunity Commission, consenting to pay $500,000 to settle a discrimination complaint alleging that female applicants have been denied jobs as waiters because of their sex. In addition to the monetary payment, The Palm agreed to seek out women to fill positions, provide EEO training to managers and new hires, advertise for positions in women’s publications and major news publications, and to improve its personnel recordkeeping. The Palm is a steakhouse which employs mostly male waiters and caters to a male clientele. Kristin Downey, “Palm Settles Sex Bias Complaint,” Wash. Post (Dec. 18, 2003), at E1.

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January

Case Remanded for Reconsideration of Punitive Damages Award

The D.C. Court of Appeals has vacated the punitive damage award in Daka v. McCrae in light of the decision in State Farm v. Campbell. Mara Verheyden-Hilliard and Carl Messineo represented the appellee, Tyrone McCrae. The compensatory damages award for $187,500 and the award of attorneys' fees and costs in the amount of $276,493.28 were left intact. However, the case has been remanded for consideration of an appropriate punitive award.

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January

EEOC Settles Religious Discrimination Suit Against Greyhound

EEOC v. Greyhound Lines, Inc., No. 3:02CV441 (E.D.Va. May 28, 2003). The EEOC settled a case alleging religious discrimination in violation of Title VII against Greyhound Lines for $50,000. This suit was brought on behalf of a relief bus driver in Richmond, Virginia. The driver, a Biblical Judaist, had requested not to be scheduled from sundown on Friday to sundown on Saturday, because that was his faith=s Sabbath day. Despite this request, the employer scheduled him to work during the Sabbath period although at times Greyhound did comply with some of his requests to not work then.

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January

EEOC and Restaurant Enter Settlement Agreement Regarding Sex Discrimination

In December 2003, The Palm Restaurant in Washington, D.C. entered into a settlement agreement with the U.S. Equal Employment Opportunity Commission, consenting to pay $500,000 to settle a discrimination complaint alleging that female applicants have been denied jobs as waiters because of their sex. In addition to the monetary payment, The Palm agreed to seek out women to fill positions, provide EEO training to managers and new hires, advertise for positions in women’s publications and major news publications, and to improve its personnel recordkeeping. The Palm is a steakhouse which employs mostly male waiters and caters to a male clientele. Kristin Downey, “Palm Settles Sex Bias Complaint,” Wash. Post (Dec. 18, 2003), at E1.

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January

Fees Denied to Out-of-State Attorney in MSPB Case

In an initial decision in the case Augustine v. DVA, MSPB Doc. No. SF-3443-00-0085-A-1 (MSPB Dec. 19, 2003), the MSPB SFRO Administrative Judge Phil Reed denied an attorney fee motion on behalf of a prevailing appellant because the attorney was not licensed in California although he was admitted to practice in two other states. The AJ ruled that the attorney must be in conformance with state ethical and other practice rules re the location of the case. In this instance, he was deemed not to be licensed in California and therefore could not receive attorney fees. This decision has important implications for all MSPB practitioners who practice in regional offices around the country where they are not admitted to local Bars. Please keep in mind that it's an initial decision and not binding precedent at this point, and no information is available at this time regarding whether the decision will be appealed. MWELA MSPB practitioners should keep a close eye on this development.

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January

Melehy Prevails in Pregnancy Discrimination Case against Postal Service

Omar Melehy, of Zipin, Melehy & Driscoll, LLC, received an order from the EEOC entering judgment for the Complainant in a pregnancy discrimination case against the Postal Service. The EEOC awarded the Complainant $15,000 in compensatory damages; back pay, which will total about $240,000; the position applied for; and attorney's fees at Laffey Rates. The Administrative Judge was Frances Del Toro.

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January

Quarles Certifies Class in Racial Discrimination Case

U.S. District Judge Quarles in Baltimore granted a motion to certify a class of African American workers at a large industrial laundry (Up-To-Date Laundry). The Judge certified the plaintiffs’ proposed class for liability purposes under Rule 23(b)(2), although he indicated that (b)(3) was also appropriate; required notice and a right to opt out; and conditionally certified the class for remedial purposes under (b)(3). He also denied the company's motion for partial summary judgment on the class representatives' individual claims. Five black former Up-To-Date employees sued the company in 2001, charging widespread racial discrimination. In approving the workers' request that the case be treated as a class action, Judge Quarles cited "direct evidence of a work environment permeated with vile racial slurs and bigotry." He also found that the "statistical and anecdotal evidence provides a sufficient basis . . . to conclude that [Up-To-Date] engaged in a pattern or practice of discrimination with respect to wages, hours, and work assignments, and created a workplace landscape permeated with racial hostility." In particular, Judge Quarles found that Up-To-Date's CEO Nancy Stair "has made racist remarks to employees," and her two sons, Brad and David Minetree, "have openly used 'Nigger' and other racial slurs to refer to African American employees." This is a solid certification decision, and we were aided by evidence showing incredibly raw racism. In a twist, the black workers were treated less favorably than their Latino counterparts, there being few white employees at the plant. Judge Quarles' January 23 decision is posted on the website www.hellerhuron.com, and it is anticipated that the Court will also post the decision. Up-To-Date's customers include the Johns Hopkins and Georgetown University hospitals and the University of Maryland Medical Center. It employs several hundred workers at its plant in Baltimore. No trial date has been set. Attorneys from Heller Huron represent the class.

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January

Member News: Alan Banov, Fred Mittelman, Alan Kabat

Effective January 2, 2004, Alan Banov will be moving to: 1819 L Street, N.W., Suite 700, Washington, D.C. 20036. Banov and Associates new phone number is: 202-822-9699. His fax number will remain: 202-842-9331.

Effective February 1, Fred Mittelman’s address and phone are changing back to his house. He may be reached at: Fred Mittelman, The Law Office of Frederick S. Mittelman, Esq., 5179 37th Road North, Arlington, VA 22207; tel: 703-534-3953; fax: 703-534-5975; fredmittelman@att.net; www.mittelmanlaw.com.

Alan Kabat has an article published in the ABA Labor Law Section Magazine, The Labor Lawyer, “How Not to Litigate a Sexual Harassment Class Action.”

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January

Conferences and Seminars

D.C. Bar Employment Programs

Thursday, February 5: “The Ins and Outs of Employment Class Action Settlements: Practical Tips for Experienced and Novice Class Action Litigators."

Thursday, March 11: “An Introduction to Entertainment Unions.”

Wednesday, March 24: “Covenants Not To Compete.”

Wednesday, April 21: “D.C. Human Rights Act.”

The above Programs will be held at the D.C. Bar Conference Center, 1250 H Street N.W., B-1 level, (Metro Center), Washington, D.C. from noon to 2 p.m. For more information and to register for this program, please visit: www.dcbar.org.

GULC Offers Annual Employment Litigation Course

Georgetown University Law Center's Continuing Legal Education program will present the "22nd Annual Employment Law and Litigation Institute: Legal Trends and Practice Strategies" on Thursday-Friday, April 15-16, 2004 at the Georgetown University Law Center, Moot Courtroom, 600 New Jersey Ave., N.W., Washington, D.C. To register, call 202-662-9890 or go to: www.georgetowncle.org. Discounts on registration fees are available for multiple registrants, alumni, government employees and paralegals. MWELA members participating in the program include Richard Seymour and Joseph Kaplan.

Upcoming NELA CLE Programs

Starting Strong & Ending Stronger: Discovery & Damages for the Plaintiff’s Employment Lawyer6 MWELA MONTHLY January 2004 March 19-20, 2004 Hilton San Diego Mission Valley San Diego, California

NELA 2004 Fifteenth Annual Convention June 23-25, 2004 Hyatt Regency San Antonio on The Riverwalk San Antonio, Texas

Everything You Need to Know About Representing Federal Employees October 1-2, 2004 Wyndham Washington, D.C. Washington, D.C. For more information, go to www.nela.org.

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January

MWELA Members Discuss Case Management with EEOC Washington Field Office Officials

MWELA members Joel Bennett, Michael Hoare, T.W. Murray, Wendy Kahn, Kristen Alden, Steve Silverberg, and Elaine Fitch met with EEOC Washington Field Office (“WFO”) supervisory Administrative Judges Shih and Odom and WFO acting director Mr. Dana Hutter on January 21, 2004. Joel Bennett noted that they discussed the following federal sector complaint topics:

1. The delay in docketing new cases and assigning them to judges. Judges Shih and Odom will consider designing a docketing form, similar to the EEOC Office of Federal Operations appeal form and civil cover sheet used in local courts that may expedite docketing and assignment to a judge. The form will be sent to MWELA for distribution to members and possible posting on the MWELA web site. The WFO would need approval from EEOC headquarters to post the form on the WFO web site. Administrative Judges (“AJ”s) currently have a case load of about 90 cases in the WFO. The WFO uses unpaid interns in the summer but has difficulty finding law students for the unpaid internships during the school year.

2. The delay in AJ rulings on motions and after hearings. The WFO management is aware of the problem. They have established non-public internal deadlines for rulings on discovery motions. They expect improvement on this in four to six months. Rulings after hearings should be quicker in the future. They indicated six months is too long for such a ruling.

3. Privacy Act objections by agency counsel. The judges indicated that they may revise the

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OPM Issues Interim “No Fear” Regulations

OPM has issued an interim final rule with request for comments to implement Title II of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002. See 5 C.F.R. Part 724 RIN 3206-AJ93, 69 FR 2997-01, 2004 WL 96571. Title II concerns the provisions requiring agencies to reimburse the Judgment Fund for payments made to employees, former
employees, and applicants for federal employment because of actual or alleged violations of federal discrimination and whistleblower protection laws.
Anyone who would like further information, contact Julie Martin at jgmartin8@comcast.net.

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U.S. Court of Appeals for the Fourth Circuit

Dwain Southern v. 7 Eleven Inc., No. 02-936 (Arlington Co., Va. Cir. Ct. July 21, 2003) Kendrick, J.

Plaintiff receives $2 verdict in defamation case. Plaintiff purchased gas at a 7-Eleven and then went into the store on-site to make another purchase. When he went to pay for the items, the clerk cashier accused the Plaintiff of not paying for the gas. Plaintiff showed the cashier the receipt and the cashier apologized and refunded him the price of the gas purchase. The Defense claimed Plaintiff only endured a moment of embarrassment, and the situation was quickly corrected. Defendant admitted liability in the case but disputed damages and proximate cause.

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Case Summaries: District of Columbia Summaries

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AJ Errors in Evaluation of Disability Application

Butler v. Barnhart, No. 02-5312 (D.C. Cir. Jan. 13, 2004), Henderson, J., joined by Tatel, J. and Garland, J.

An administrative law judge erred in evaluating the Plaintiff's disability insurance application by failing to properly consider the plaintiff's inability to meet some of the physical demands of plaintiff's work activities, failing to give proper consideration to the opinion of plaintiff's treating physician, and failing to give proper consideration to her claim that she was disabled by intense pain. This case was reversed and remanded for further proceedings.

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Court Criticizes Plaintiff’s Attorneys for Inconsistent and Inadequate Billing Practices in Fee Petition

Role Models America, Inc., Appellant v. Les Brownlee, Acting Secretary of the Army, et al., No. 02-5037 (D.C. Cir. Jan. 13, 2004).

Although this opinion concerns fees under the Equal Access to Justice Act, its harsh criticism of the plaintiff's attorneys for their inadequate and inconsistent billing records is certainly a warning sign to plaintiff's attorneys seeking recovery of attorneys' fees and expenses under Title VII and other statutes allowing for fee-shifting. Look at the second half of this opinion before preparing a fee petition.

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Court Finds Successor Business Liable for Pension Contributions9 MWELA MONTHLY January 2004 Flynn v. R.C. Tile, No. 02-7091 (D.C. Cir. Jan. 09, 2004).

The district court properly concluded that two successive, family-owned, defendant construction companies were alter egos of each other, and therefore, one was liable for the delinquent pension contributions pursuant to its predecessor's collective bargaining agreement with plaintiff Union. To read the opinion, go to: http://caselaw.findlaw.com/data2/circs/DC/027091 A.pdf.

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D.C. Circuit Reverses Decision on Title VII and 1983 Claims

Singletary v. District of Columbia, No. 02-7138 (D.C. Cir. Dec. 16, 2003)

The D.C. Circuit reversed the District Court’s (Judge Sullivan) decision on the Title VII retaliation claim in this case because the district court failed to consider temporal proximity by only looking at a single, remote event. The Court also reversed the District Court on the harassment claim in reliance on Amtrak v. Morgan which allows consideration of older events under the continuing violation doctrine. Also, the Court reversed the Section 1983 claim for failure to promote because of an improper application of the statute of limitations. Accordingly, the case has been remanded for reconsideration of the evidence. An excerpt regarding causation is as follows:

“Although the court found that there was no other evidence of causation that could make up for the temporal proximity that it thought was absent, Singletary, 225 F. Supp. 2d at 57, this circuit has held that a close temporal relationship may alone establish the required causal connection. And here8 MWELA MONTHLY January 2004 the temporal proximity was quite close: Singletary was denied promotion to the acting supervisor position in June 1993, the month after he filed his appeal with the D.C. Court of Appeals. Whether such proximity was enough in this case is, in the first instance, a question for the finder of fact rather than the appellate court. We therefore remand for the district court to determine whether the close temporal relationship between the 1993 protected activity and the 1993 adverse employment action, in the context of other evidence offered by both the plaintiff and the defendants, persuades the court that the defendants unlawfully retaliated against the plaintiff in violation of Title VII.”

To read the opinion, go to: http://pacer.cadc.us courts.gov/docs/common/opinions/200312/02-7138a.pdf.

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Dismissal Affirmed for Failure to Exhaust Remedies under CMPA

Burton v. District of Columbia, No. 01-CV-1195 (D.C. Nov. 20, 2003), Terry, J. (Ruiz and Washington, JJ. concur) (affirmed).

A former police officer sued the District of Columbia and three of his former supervisors from the Metropolitan Police Department (“MPD”) alleging retaliation stemming from his reports of misconduct by one of the supervisors. During trial, the case was dismissed pursuant to Rule 50 on the ground that Plaintiff failed to exhaust his administrative remedies under the Comprehensive Merit Personnel Act. On appeal, the Court of Appeals held that the exhaustion doctrine is a rule of judicial administration and is not jurisdictional, and that the trial court did not abuse its discretion in dismissing an action for Plaintiff’s failure to exhaust administrative remedies regarding his claims of retaliation. In addition, the Court affirmed that the Defendant could raise the issue of exhaustion as a defense even though it was not included in the Joint Pretrial Order governing the trial.

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Judge Kessler Cites District of Columbia for Uncivilized Conduct and Failures to Comply with Discovery Rules

Lerner v. District of Columbia, et al., No. 00-CV-1590 (GK) (Jan. 27, 2004), Kessler, J.

Judge Kessler ordered the Defendant to produce documents, pay the Plaintiff’s costs and to show cause as to why the Defendant and Counsel should not be held in contempt of Court. This followed after the Plaintiff moved for sanctions against Defendant Patterson and for his ongoing failure to comply with his discovery obligations under the Federal Rules of Civil Procedure and his failure to comply with a specific Court Order, entered December 9, 2003, granting Plaintiff's Motion to Compel the Production of Documents. Throughout this litigation, Defendant Patterson's counsel consistently failed to comply with his discovery obligations and to handle this case in a professionally responsible and civil manner. In addition to not responding to discovery obligations, Judge Kessler found that he consistently ignored the basic civilities of law practice by refusing to return telephone calls, voicemail messages, and letters. In addition, Defendant’s counsel did not file an opposition to the Plaintiff’s latest motion for sanctions.

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Non-selection Constitutes Adverse Action; Failure to Rebut Agency’s Articulation Justifies Defense Judgment

Stewart v. Ashcroft, No. 02-5233 (D.C. Cir. December 23, 2003)

The district court erred in failing to find a non-selection to be an adverse employment action, however the plaintiff failed to rebut the government's legitimate, nondiscriminatory reason for not selecting him to become Chief of the Environmental Crimes Section. To read the full text of this opinion, go t o : [PDF File]

http://caselaw.findlaw.com/data2/circs/DC/0252 33A.pdf.

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Pleading Error deemed Fatal to Rehabilitation Act Claim; Employer’s Corrective Action Precludes Liability

Taylor v. Small, (D.C. Cir. Dec. 12, 2003).

Two key issues: (1) the D.C. Circuit refused to allow the federal employee plaintiff, who mistakenly pled her disability claim under Section 504 of the Rehabilitation Act, to proceed under Section 501 instead (even if they had, the plaintiff had failed to exhaust her administrative remedies), and (2) an employer can cure a discriminatory adverse employment action prior to litigation, thereby avoiding liability. To read the decision, go to: http://pacer.cadc.uscourts.gov /docs/common/opinions/200312/02-5261a.pdf.

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Statute of Limitations Ran Out on Classification Claim

Harris v. Federal Aviation Admin., No. 02-5304 (D.C. Cir. Jan. 13, 2004), Henderson, J., joined by Tatel, J. and Roberts, J.

The Court found that the Federal Aviation Administration=s recruitment notice was a final agency action. However, the plaintiffs filed suit after the six-year statute of limitations expired, so the District Court lacked subject matter jurisdiction over the claims. The case arose when the plaintiffs, who were air traffic controller strikers who were fired and then rehired under a 1993 Recruitment Notice sue the agency alleging that the decision to rehire them at the GS-9 level, rather than their pre-termination grades, was arbitrary and capricious. The suit commenced in 2001 and therefore was outside the limitations period.

Manner of Addressing Parties is Negotiable Association of Civilian Technicians v. Federal Labor Relations Auth., No. 03-1083 (D.C. Cir. Jan. 9, 2004), Edwards, J, joined by Sentelle; Henderson, J. (concurring).

A bargaining proposal tendered by a union to an employer stating the manner in which management representatives should address union agents during collective bargaining negotiations was negotiable. The union's proposal did not regulate the substantive conditions of employment of management officials or other non-union people B it only established the standards for governing union/management interactions.

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Summary Judgment Denied in Age Bias Case

Equal Employment Opportunity Comm'n v. District of Columbia Public Schools, No. 02-371 (D.D.C. Aug. 13, 2003) Walton, J.

Defendant's conflicting and inconsistent reasons for District of Columbia teacher's lay off created genuine issue of material fact which precludes summary judgment for the defendant in the teacher's age discrimination lawsuit.

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Summary Judgment is Granted Where Harassment is Not Severe Enough to Be Actionable; Plaintiff Fails to Show Adverse Action for Retaliation Claim

Milford S. Jones v. John E. Potter, Post Master General, United States Postal Service, No. 01- 1905 (D.D.C. Jan. 2004), Walton, J.

Summary judgment was warranted in this case because the single incident of harassment was of short duration and not sufficiently severe. The retaliation claim also failed because the temporary reassignment of the plaintiff and the denial of opportunities to work overtime were not adverse employment actions (the latter justifiable because the USPS was under a cost-cutting mandate). This decision discusses some of the case law governing same-sex harassment and single incident harassment. To read the decision, go to:http://www.dcd.uscourts.gov/01-1905.pdf.

Judge Walton concluded that “[w]hile Mr. Wallace's actions were not in accordance with proper workplace etiquette, ‘a supervisor's unprofessional managerial approach and accompanying efforts to assert his authority are not the focus of the discrimination laws.’ Lee Crespo, 2003 WL 23095261, at * 10. Nor are any of the claims of retaliation actionable as they were not adverse employment actions and the defendant has asserted legitimate reasons for its actions. Accordingly, summary judgment is entered in favor of the defendant and plaintiff's complaint is dismissed with prejudice.”7 MWELA MONTHLY January 2004

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Case Summaries: Maryland Summaries

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Grimm Opines on Electronic Discovery Standards

Thompson v. HUD, No. MJG-95-309 (D. Md.
Dec. 12, 2003), Grimm, M.J.

The case discusses standards for electronic discovery requests; duty to preserve; spoliation; and adverse inferences.

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Lynn v. Maryland, No. JFM-01-2889 (D. Md. 2003). The court reduced the attorney's fee application where the Plaintiff demonstrated limited success in his claims.

Bourne v. Center on Children Inc., No. 2698 (Md. App. Dec. 11, 2003), Eyler, J.

A former pastor’s breach of contract and defamation lawsuit against a church-affiliated
non-profit corporation and his supervisors was10 MWELA MONTHLY January 2004 barred by the First Amendment. The Court found that the non-profit and the individuals were entitled to the same protections as the church. Also, the court found that the matter was not “purely secular” and deciding the matter would require the court to consider the pastor’s adherence to religious tenets and spiritual successfulness as determined by the church.

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Metro is Immune from FMLA Suit

Lizzi v. WMATA, No. 420, Sept. Term 2002 (Md. Ct. Spec. App. Dec. 22, 2003).

Metro has Eleventh Amendment sovereign immunity to suit under Family and Medical Leave Act.

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Motz Reduces Fee Award

Lynn v. Maryland, No. JFM-01-2889 (D. Md. 2003).

The court reduced the attorney's fee application where the Plaintiff demonstrated limited success in his claims.

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No Immunity For Ambassador and Employee While Engaging in Commercial Activities

Pradhan v. Al-Sabah, et al, No.03-0228 (D. Md. Jan. 7, 2004), Chasanow, J.

An ambassador does not have diplomatic
immunity in a dispute over an employee breaking a lease on a house he was renting. The ambassador, acting in his official capacity, signed an addendum to the lease. This act constitutes “commercial activity” which is an exception to the protected status afforded diplomats under The Foreign Sovereign Immunities Act.

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Trucker Not “Regularly Employed” in Maryland is Not Eligible for Maryland Workers’ Comp Benefits

Larry T. Fitzgerald v. R&R Trucking Inc., No. 58 (Md. App. Dec. 11, 2003), Davis, J.

The lower court did not err in granting summary judgment to a Missouri-based employer of a truck driver who applied for workers’ compensation benefits in Maryland for a work related injury in Pennsylvania. The court found that “regular employment” under the statute meant a uniform course of conduct. In this case, the claimant’s employment in Maryland was more akin to a matter of chance. He did not spend a considerable time in Maryland and only performed a route originating in Maryland nine times over a period of five months.

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Case Summaries: Virginia Summaries

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$2 Jury Award for Defamation Claim

Dwain Southern v. 7 Eleven Inc., No. 02-936 (Arlington Co., Va. Cir. Ct. July 21, 2003) Kendrick, J.

Plaintiff receives $2 verdict in defamation case. Plaintiff purchased gas at a 7-Eleven and then went into the store on-site to make another purchase. When he went to pay for the items, the clerk cashier accused the Plaintiff of not paying for the gas. Plaintiff showed the cashier the receipt and the cashier apologized and refunded him the price of the gas purchase. The Defense claimed Plaintiff only endured a moment of embarrassment, and the situation was quickly corrected. Defendant admitted liability in the case but disputed damages and proximate cause.

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Case Summaries: U.S. Court of Appeals for the Fourth Circuit

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Anti-Discrimination Laws Do Not Apply to Public Health Officer, in his capacity as Officer of the Armed Services

Durand Hedin v. Tommy G. Thompson, Secretary, Dep’t of Health and Human Servs., No. 03-1474 (4th Cir. Jan 20, 2004) Motz, J.

The Court held that a commissioned officer in the Public Health Service should be deemed an officer in active military service with the Armed Forces for purposes of anti-discrimination laws. Because military officers are exempt from anti-discrimination statutes, the district court properly dismissed the officers age discrimination claim against the U.S. Department of Health and Human Services. To read the opinion, go to: http://caselaw.lp.findlaw.com/data2/circs/4th/031474p.pdf.

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Fourth Circuit Rejects Cat’s Paw Theory in Discrimination Suit

Ethel Louise Hill v. Lockheed Martin, No. 01-1359 (4th Cir. Jan. 5, 2004), Traxler, J (en banc 7-4)

The district court did not err in granting summary judgment to an employer in a discrimination
suit brought under Title VII and the Age Discrimination in Employment Act where the plaintiff claimed that she was terminated because of the discriminatory actions of a co-worker who had no formal role in the decision. The Court found that a biased employee who does not have supervisory or disciplinary authority does not become a decision maker because he had a substantial influence on the ultimate decision.

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Union Found to have Fulfilled its Duty of Fair Representation

Jeffreys v. Communications Workers of America AFLCIO and U.S. Airways Inc., No. 03-1378 (4th Cir. Dec. 31, 2003), Wilkinson, J.

The District Court did not err in granting summary judgement to the defendant union as a matter of law because the union had not breached its duty of fair representation to its members because its conduct was not arbitrary, discriminatory or in bad faith. The defendant union reached a deliberated and democratic decision that was consistent with the contractual language and with the view of the majority of its members. Daniel Katz represented the appellee.

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Case Summaries: Federal Circuit Summaries

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Federal Circuit Affirms Finding that Employee was Not Entitled to Waiver of Filing Deadline

Mclaughlin v. Office of Pers. Mgmt., No. 03-3049 (Fed Cir. Jan. 6, 2004).

Because substantial evidence supports the Merit Systems Protection Board's conclusion that plaintiff was not mentally incompetent during the one-year statutory filing period prescribed by 5 U.S.C. Sec. 8453, its decision that she is not entitled to a waiver of the deadline is affirmed. To read this opinion, go to: http://laws.lp.findlaw.com/fed/033049.html.

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Overreaching Findings and Decision by Arbitrator Mandates Reversal

James v. Dale, No. 03-3030 (Fed Cir. January 26, 2004).

In reversing the removal of defendant from the INS as a border patrol agent, because an arbitrator abused his discretion by substituting his own charge for that of the INS and applied the wrong standard to determine whether defendant's associate was a "suspected narcotics law violator," the arbitrator's decision is reversed. To read this opinion, go to: http://laws.lp.findlaw.com/fed/ 033030.html.

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Prior Law is Not Unconstitutional in Light of Amendment

Howard v. United States, No. 03-1338 (Fed. Cir. Jan. 13, 2004), Clevenger, J, Bryson, and Gajarsa joined in this per curiam decision).

The congressional decision to change a statute to allow disabled military veterans to collect both military retirement pay and disability compensation, did not render the pre-amendment statute irrational and violative of the plaintiffs= equal protection rights. The Federal Circuit affirmed its prior holding, finding that the preamendment statute was rationally related to the legitimate governmental interest of limiting public expenditures for certain federal retirees.

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Case Summaries: ADA Summaries

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Seventh Circuit Holds that 1991 Civil Rights Act Does Not Apply to ADA Retaliation Claims

Kramer v. Banc of America Securities, LLC, - F.3d - (7th Cir. Jan. 20, 2004).

In this case of first impression in any Circuit, the Seventh Circuit held that the Civil Rights Act of 1991 does not apply to ADA retaliation claims. It applies only to discrimination or failure to accommodate claims brought under 42 U.S.C. Section 12112 or 12112(b)(5). But 42 U.S.C. Section 12203 is the basis for retaliation claims, and that Section is not mentioned in the Civil Rights Act of 1991. The remedies in ADA retaliation claims are therefore limited to equitable remedies set forth in 42 U.S.C. Section 2000e-5(g)(1). No jury trial, solely equitable relief.

In contrast with Kramer, see Shellenberger v. Summit Bancorp, 318 F.3d 183 (3d Cir. 2003) in which the plaintiff's ADA retaliation claim was remanded for a jury trial. Also, in Krouse v. American Sterilizer Co., 126 F.3d 494 (3d Cir. 1997), the Third Circuit stated, "Retaliation claims under the ADA are analyzed under the same framework as Title VII discrimination claims." 126 F.3d at 500.

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Case Summaries: Around the Nation

Abuan v. Level 3 Communications, Inc., - F.3d - (10th Cir. December 30, 2003) (discussing damages and front pay).

Martin v. Alamo Community College Dist., - F.3d - (5th Cir. Dec. 30, 2003) (holding EEOC "Notice of Reconsideration" voids "right-to-sue" letter if suit has not yet been filed).

Raymond v. United States, No. 03-6037 (2d Cir. Jan. 13, 2004) (holding taxpayer who receives recovery for lost wages, and who agreed to pay his attorney on a contingent-fee basis, must include the contingent fee in his gross income. Vermont law does not provide attorneys with a proprietary interest in their clients' claims; when a taxpayer is in sufficient control of the source of income, federal principles of taxation deem him the recipient of gross income upon its disposition.) To read the opinion, go to: http://caselaw.findlaw.com/data2/circs/2nd/0360 37p.pdf.

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