Newsletter - January/February 2012

January
Year: 
2012

MWELA Annual Conference

Date: Friday, March 9, 2012

Place The Westin City Center, 1400 M Street NW Washington, DC 20005

Join us at MWELA's Annual Conference, an all-day forum that addresses topical aspects of the plaintiffs employment practice. MWELA's annual Lawyer of the Year award will also be presented.

We are excited to announce that the 2012 Annual Conference will feature the following sessions:

Keeping Up With Change: Practice Tips and Maximizing Remedies (and Fees) In MSPB and EEOC Federal Sector Cases

Panelists: Gary M. Gilbert, The Law Offices of Gary M. Gilbert & Associates, P.C. & Beth S. Slavet, Beth S. Slavet, P.C.

Moderator: Omar Melehy, Melehy & Associates LLC

Keeping Sharp: How to Litigate Claims PostADAAA

Panelists: Peggy Mastroianni, Legal Counsel, EEOC’s Office of Legal Counsel & Brian East, Senior Attorney, Disability Rights Texas; Board Member of both the National Employment Lawyers Association (NELA) and the Texas Employment Lawyers Association (TELA)

Moderator: Daniel A. Katz, Senior Counsel, The Law Offices of Gary M. Gilbert & Associates P.C.

Preserving Your Client?s Claims: Trying Your Case With Appeal In Mind and Dealing With Post-Trial Motions

Panelists:Alicia K. Haynes, Haynes & Haynes, PC; Vice President NELA (Birmingham, AL), Julie Glass Martin-Korb & Peter Cohen, Charlson Bredehoft Cohen and Brown, P.C.

Moderator:Lenore Garon, Gebhardt & Associates, LLP

Forewarned is Forearmed: DC Jury Instruction Issues

Panelists: The Honorable Todd E. Edelman, Associate Judge, Superior Court of the District of Columbia & Abbey G. Hairston, Thatcher Law Firm Moderator: Robert B. Fitzpatrick, Robert B. Fitzpatrick, PLLC

Just Say No: Fighting Offensive Settlement Terms

Panelists: David L. Lee, Law Offices of David L. Lee, Board Member of NELA (Chicago, IL) & Jonathan C. Puth, Webster Fredrickson Correia & Puth, PLLC; President-Elect of MWELA

Moderator: Jerry R. Goldstein, Attorney, Bulman, Dunie, Burke & Feld, Chtd. Ginger and Its Impact ? What To Do Until Its (Hopeful) Demise

Panelists: Cathy Harris, Kator, Parks & Weiser, P.L.L.C. & Ellen K. Renaud, Swick & Shapiro, P.C.

Moderator: Donna Williams Rucker, Rucker & Associates, P.C.

Luncheon

Keynote Remarks by: Chai Feldblum, Commissioner, EEOC

Also featuring the presentation of the 2012 MWELA Lawyer of the Year Award.

Register Now for the Early Bird Registration

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Newsletter - January/February 2012
January

Verdicts, Orders & Settlements

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Contractor Found to be De Facto Government Employee May Employ Federal EEO Complaint Process

I thought I'd share a recent decision we received from the Office of Federal Operations in the case of Jones v. McHugh (Army), Appeal No. 01-2011-3677. The Agency dismissed Ms. Jones's complaint of sexual harassment in a cursory order stating that she was a contractor, not an employee, and therefore not entitled to the federal EEO complaint process.

The OFO remanded for further investigation. The OFO reviewed the Agency's brief, which applied several of the factors set forth in Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 323-24 (1992), to determine whether Ms. Jones was is in fact an Agency employee. Having reviewed these factors, the OFO stated that she was not a federal employee under that test. HOWEVER, it went on to consider whether Ms. Jones was a de facto government employee, and concluded: "In the instant case, we find significant, and dispositive, the fact that the Program Manager, an Agency management official, was able to exercise his discretion in making the decision to retain or release Complainant from her position as a choreographer, and that no independent corporate entity served as a buffer between Complainant and the Agency on the issue of Complainant's continued association with the Agency. Therefore, upon review of the record, we find that the Agency, through its agent the Program Manager, exerted sufficient control over Complainant for the purpose of establishing her standing to utilize 29 C.F.R. Part 1614 EEO complaints process to pursue her sexual harassment claim."

– submitted by Dennis Chong

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D.C. Court of Appeals Orders Office of Employee Appeal to Resolve Cases in Timely Manner

In Washington Teachers’ Union, Local #6 et al. v. Clarence Labor, Jr. et al, No. 11-OA-36 (D.C. Jan. 27, 2012), we (Jay Holland, Veronica Jackson and Brian Markovitz) just got a big victory for Washington Teachers' Union, and in fact all D.C. public employees, before the D.C. Court of Appeals re: the Office of Employee Appeals (OEA) failing to timely complete cases. WTU filed a Petition for Writ of Mandamus to force OEA to come into compliance regarding the timely resolution of employee appeals. MWELA and Metro Washington Council, AFL-CIO wrote amicus briefs in support, which greatly helped.

The District of Columbia Court of Appeals ordered that OEA respond to the Court within 20 days to explain "what actions it intends to undertake to address the delay in assigning administrative law judges in order to come into compliance with 6 DCMR § 632.1 (2008) (administrative judge 'shall issue an initial decision ... no later than 120 business days after the employee files a complete petition for appeal.' )."

Thanks to everyone at MWELA, especially Alan Kabat, Les Alderman, William Osborne, and Marie Hagen who wrote the amicus briefs.

– submitted by Brian Joseph Markovitz

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January

EEOC Administrative Judge Grants Default Judgment Due to Agency’s Misconduct

In Theresa Devine v. Defense National Guard Bureau (Airforce National Guard, Army Reserve National Guard), EEOC No. 531-2011-00321X (EEOC - Baltimore Field Office Jan. 11, 2012), my co-counsel Gary Gilbert and I are please to report a default judgment was awarded to our client against the D.C. National Guard. The Judge held that the Agency's EEO Director failed to properly inform employees of their rights to file civilian discrimination complaints. Theresa Devine, a former civilian employee of the D.C. National Guard, won the default judgment following years of sexual harassment and retaliation at the hands of her supervisors and co-workers. Administrative Judge David Norken in the EEOC Baltimore Field Office imposed this severe sanction as a consequence of the Agency's egregious misconduct in the handling of Ms. Devine's sexual harassment complaint, and the ensuing litigation. According to the Judge, the Agency's EEO Director "materially" misled Ms. Devine preventing her from filing a sexual harassment complaint, failed to conduct an investigation of the complaint as required by EEOC regulations, and failed to inform other employees of their rights to file similar complaints. The Judge further ruled that, during litigation, Agency attorneys ignored the Judge's clear orders on discovery matters, disregarding his clear instructions, in what can only be described as an attempt to obstruct the discovery process and shield the Agency from the consequences of its misconduct.

The Judge found that Ms. Devine endured years of discrimination at the hands of Agency officials, including sexual harassment and pregnancy discrimination, that her frequent complaints were ignored, and that she was subjected to illegal retaliation for complaining about her mistreatment. The Judge concluded Ms. Devine's "supervisors and co-workers subjected her to offensive sex-based comments, such as suggesting she needed a 'fuck buddy' and comments from her supervisor, such as not wanting a woman in his shop." (Decision, p.23). The Judge found that Ms. Devine "complained to her chain-of-command on numerous occasions, to no effect… In fact, when she complained, the harassment got worse." (p. 23) In reprisal, "her two supervisors Daily and Bucholz, yelled at her for a half hour and disciplined her when she dared to go up the chain-of command to complain about their harassing conduct." When Ms. Devine became pregnant her supervisor "required her to perform menial clerical tasks [and] ignored her need for medical treatment when she broke out in a rash when she came in contact with some chemicals while pregnant." From that day forward, her supervisors "subjected her to intense scrutiny, more than any males they supervised or any other pregnant females, in order to develop a record to fire her." The Judge concluded, "The Agency did nothing for years to end the harassment even though [Ms. Devine] complained on several occasions." (p. 23).

Attorney Josh Bowers represents Ms. Devine as well as Vikki Rouleau who has a separate sexual harassment complaint against the D.C. National Guard. Ms. Devine, Ms. Rouleau and a third woman who requested to be anonymous all suffered extensive sexual harassment while employed as civilians by the D.C. National Guard at Andrews Air Force Base. Mr. Bowers said, "The three women joined the D.C. National Guard to support the fighter jets stationed at Andrews Air Force Base and to actively defend our country." He said, "The women were proud to serve their country, but after years of sexual harassment and the failure of management to protect them from sexual harassment, all three resigned from their civilian positions and did not reenlist in the National Guard at the end of their terms of duty."

– submitted by Josh Bowers

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EEOC OFO Reverses Summary Judgment in Sexual Harassment Case

In Paula James v. Leon Panetta, DOD (Defense Threat Reduction Agency), EEOC Appeal No. 0120102361 (OFO Jan. 4, 2012), the EEOC’s Office of Federal Operations reversed summary judgment in a sexual harassment case. The decision is interesting because, besides reversing a summary judgment decision in favor of the agency, it deals with a situation where the complainant claimed that she was sexually assaulted by a coworker in 2002 but did not file a complaint at that time (due to fear, shame, fright and confusion as experienced by many sexual harassment victims). Later, in 2005, the co-worker (then a supervisor) came back into the picture and began to sexually harass the complainant again (comments, gestures). In 2006, the courageous complainant finally filed a complaint alleging sexual harassment back to 2002. The complaint was initially dismissed for untimeliness, but OFO reversed the dismissal noting that the alleged sexual harassment events between 2002 and 2006 constituted a “single claim” of sexual harassment. On remand, and after investigation, the case went to EEOC Washington Field Office (Administrative Judge Hodges) for hearing. But, the AJ granted summary judgment in favor of the agency reasoning that the 2002 events were still untimely, that the 2006 and later allegations were not “severe and pervasive,” and that there was no retaliation against complainant after she filed her complaint in 2006. AJ was reversed on all points, and the matter has been remanded for hearing.

There is good discussion in the opinion that, in order to make an actionable retaliatory harassment claim, a complainant does not have to allege a retaliatory “ultimate employment action.” In this case, after complainant filed her complaint in 2006 and met with the office director, rumors began to circulate that she had romantic affairs with other employees in the office to besmirch her character and credibility (totally untrue).

Finally, and, indicative of how difficult these cases are, the co-worker has never been disciplined for his actions, including, sendig pornographic information to others in the office on government computers. The “Good Ole Boy” network at its worst.

– submitted by Michael J. Riselli

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January

Full Fees Awarded at Laffey Rates

Tarquini v. New Dimensions Inc., No CL 80592 (Circuit Court of Prince William County, VA).

Thank you to each of you who graciously provided advice, affidavits and assistance with the fee petition I filed in state court arising from damages under the Equal Pay Act. There were two counts in the complaint - breach of contract and EPA. The damages awarded after trial were $33,985.53 for the contract claim and $13,734.08 for the EPA (comp and liquidated). On January 9, 2012, the court awarded $116,000.00 in fees and $8,500 in costs.

– submitted by Marni E. Byrum

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MSPB Awards Full Fees at Laffey Rates

Robert Lee Greene v. Department of Homeland Security, No. AT-0752-10-1029-A-1 (MSPB Atlanta Regional Office Jan. 25, 2012).

I am thrilled to report that we won full fees (except $43.25 in costs) at Laffey Rates before the Merit Systems Protection Board. Thanks to Tracy Gonos for writing an outstanding and successful fee petition.

In this case, Administrative Judge Brian Bolen awarded the Appellant attorney fees of $79,566.46 and costs of $2,037.66, totaling $81,604.12. The only cost which was disallowed was photocopying expenses for $43.25. Elaine Fitch and Kalijarvi, Chuzi, Newman and Fitch, P.C. represented the Appellant.

– submitted by Elaine Fitch

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January

OFO Affirms Default Judgment

Adkins v. FDIC, EEOC Appeal No. 0720080052 (OFO Jan. 13, 2012).

I am happy to report a major win at the EEOC's Office of Federal Operations (OFO). In this case, the OFO upheld the administrative judge's grant of default judgment against the Federal Deposit Insurance Corporation (FDIC), and an award of fees. This case has a very long history, dating back to our client's non-selections in 1999 and 2000. The administrative judge awarded default judgment against the agency because, among other things, the agency: failed to timely investigate the complaint, failed to provide the Report of Investigation to the client, failed to provide the Report of Investigation to the administrative judge when ordered, sua sponte decided that the administrative judge did not have jurisdiction, claiming a mixed case divested the EEOC of jurisdiction, and issuing a Final Agency Decision on its own.

The agency appealed the administrative judge's decision in 2008, an appeal has been pending at the OFO all this time. Finally, in a lengthy decision, the OFO sustained the judge's grant of summary judgment against the agency and the award of fees. As remedies, the agency is required to, among other things : 1) offer a position to the client; 2) provide back pay and benefits, with interest, to the date of non-selection - 1999!!; 3) fees and costs associated with the appeal.

This case is also notable because it clearly reasserts the viability of the "firmly enmeshed" doctrine whereby the EEOC can retain jurisdiction of adverse actions in "mixed cases."

– submitted by Joseph V. Kaplan

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January

Plaintiff Settles ADA Suit

John Dause v. Broadway Services Inc., No. 1:11-cv- 03136 (D. Md.).

“A candidate for a security guard position who had his job offer pulled because he has sight in only one eye has settled his discrimination case against the company for $40,000.

John Dause, 60, of Henderson, N.C., accepted the $40,000 settlement on Jan. 3 before the case headed to trial in U.S. District Court in Baltimore. The settlement did not include a job offer.

Dause filed the lawsuit on Nov. 2 against Broadway Services Inc. of Baltimore, claiming discrimination under the Americans with Disabilities Act. Dause, who lost vision in his right eye at the age of 10, claimed he told the company of his disability before it offered him the job and placed him in a training class. After he had passed the training course and vision exam, he claimed, the company told him his eyesight did not meet the company's standards for employment.”

– Ben Mook, “Would-be Security Guard Settles ADA suit,” Daily News Record, Feb. 12, 2012.

This article describes the successful conclusion to an ADA case brought by Gary M. Gilbert & Associates and Brown, Goldstein & Levy. Our client has monocular vision and was illegally fired from his security guard job after passing company physicals and receiving training.

– Danny Katz

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Newsletter - January/February 2012
January

Virginia Court Awards $116,000 in Attorneys’ Fees

“Advanced Employment Law and Litigation – 2012: 24th Annual ALI-ABA Course of Study,” featuring a Live Mock Jury Demonstration, ThursdaySaturday, March 22-24, 2012,Washington Plaza Hotel, 10 Thomas Circle, N.W.,Washington, D.C.

MWELA members Bob Fitzpatrick, Bruce Fredrickson, Rick Salzman, Jenny Yang and Debra Katz are on the faculty (along with Peggy Mastroianni, who is always outstanding). Bruce will be doing a mock jury demonstration with Tina Kearns (of Pillsbury Winthrop Shaw Pittman), presided over by Magistrate Judge John Facciola.

The case to be argued is a disability discrimination/FMLA case where the terminated employee had Parkinson's disease and requested the reasonable accommodations of flexible hours, an ability to work from home when needed, and the like. He was subsequently fired in a RIF.

Judge Facciola will also be doing a segment on electronic discovery issues that is invaluable. There will also be a new panel on legal issues that arise as a result of social networking that is new to this CLE program.

For more information, go to: http://www.aliaba.org/ct033.

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Newsletter - January/February 2012
January

Wins at EEOC and County Personnel Board

I am pleased to report two wins in January 2012, one in a federal employee EEOC case that was heard by Administrative Judge Palmer over 2 ½ years ago, and the other in the Prince George’s County Personnel Board. The federal employee case involved retaliatory non-selection for a GS-13 position and an unending detail to a clerical position where the AJ ordered a promotion with 4 ½ years of back pay, benefits, and interest, an end to the detail, and a modest $15,000 in compensatory damages. The PGPB case involved a reduction-in-force we had challenged as improper where the Board ruled for the County, we got it reversed in court, and won on remand. The client is entitled to reinstatement with back pay and benefits. If only all weeks were like this one.

– submitted by Jerry R. Goldstein

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Newsletter - January/February 2012
January

Conferences and Seminars

D.C. Bar Programs

“Fee Agreements in the District of Columbia: Ethics and Practice,” February 27, 2012, 6 - 9:15 p.m. The cost is $59 for Section members, $69 for D.C. Bar members, $109 for Government attorneys, and $129 for others.

“Privacy in The Workplace: Where It Is and Where It Isn’t,” February 29, 2011, 4 - 7:15 p.m. The cost is $89 for Section members, $99 for D.C. Bar members, $109 for Government attorneys, and $129 for others.

“ ABCs of the National Labor Relations Board Series”- (3) Parts: March 6, 12, and 19, 2012, 6:15 p.m.-9:00 p.m., Part 1 Only: Practice and Procedure Before the National Labor Relations Board (Tuesday, March 6); Part 2 Only: Unfair Labor Practices (Monday, March 12); and Part 3 Only: Union Organizing (Monday, March 19). The cost for the entire series is: $179 for Administrative Law and Agency Practice Section members; $199 for D.C. Bar Members; $209 for Government Attorneys; $179.00 for Health Section members; $179.00 for Labor and Employment Law Section members and $249.00 for others. The cost for individual sessions is: $89 for Administrative Law and Agency Practice Section members; $99 for D.C. Bar Members; $109.00 for Government Attorneys; $89.00 for Health Law Section members; $89.00 for Labor and Employment Law Section members; and $129.00 for others.

“Update on ADA Issues, Regulations and Litigation,” Wednesday, March 14, 2012, 6 p.m.- 8:15 p.m. The cost is $89 is co-sponsoring section members, $99 for D.C. Bar members, $109 for Government attorneys, and $129 for others.

“How to Represent Your Client Effectively in Security Clearance Cases,” Thursday, March 29, 2012, 6-9:15 p.m. The cost is $89 is co-sponsoring section members, $99 for D.C. Bar members, $109 for Government attorneys, and $129 for others.

“Drafting Employee Handbooks,” Thursday, April 26, 2012, 6-8:15 p.m. The cost is $89 is cosponsoring section members, $99 for D.C. Bar members, $109 for Government attorneys, and $129 for others.

D.C. Bar programs are generally held at the D.C. Bar’s new location at 1101 K Street, N.W., First Floor, Washington, D.C. unless otherwise stated. For more information and to register for these programs, please visit: www.dcbar.org.

Advanced Employment Law and Litigation – 2012: 24th Annual ALI-ABA Course of Study, featuring a Live Mock Jury Demonstration, ThursdaySaturday, March 22-24, 2012,Washington Plaza Hotel, 10 Thomas Circle, N.W.,Washington, D.C. MWELA members Bob Fitzpatrick, Bruce Fredrickson, Rick Salzman, Jenny Yang and Debra Katz are on the faculty (along with Peggy Mastroianni, who is always outstanding). Bruce will be doing a mock jury demonstration with Tina Kearns (of Pillsbury Winthrop Shaw Pittman), presided over by Magistrate Judge John Facciola. The case to be argued is a disability discrimination/FMLA case where the terminated employee had Parkinson's disease and requested the reasonable accommodations of flexible hours, an ability to work from home when needed, and the like. He was subsequently fired in a RIF.

Judge Facciola will also be doing a segment on electronic discovery issues that is invaluable. There will also be a new panel on legal issues that arise as a result of social networking that is new to this CLE program. For more information, go to: http://www.aliaba.org/ct033.

FBA Sponsors Whistleblower Seminar

The Federal Bar Association Northern Virginia Chapter will present “Blowing the Whistle in 2012: New Developments in Qui Tam Litigation,” March 7, 2012 Lunch Seminar, 12:00-2:30 p.m., Westin - Alexandria (across from the Courthouse). The cost is $55 for FBA members; $70 for nonmembers; $35 for FBA members who are government attorneys; and $60 for non-member government attorneys. If you have any questions or wish to register, contact Caitlin Lhommedieu at 703- 851-3366 or clhommedieu@cox.net.

MWELA EVENTS

MWELA D.C. Happy Hour, Thursday, May 17, 2012 Visit mwela.org for the most current information.

MWELA Case Evaluation Clinic

The next Case Evaluation Clinics will be held on Thursday, March 22, 2012, from 2:00 to 5:00 p.m. at The Employment Law Group,888 17th St., N.W. # 900,Washington, DC 20006-3307.

At the Clinic, a group of experienced MWELA lawyers will evaluate and give advice on a possible case, a new case, or a pending case that is having difficulties. The cost for an hour evaluation is: $95.00 for a MWELA member or $195.00 for a nonmember. You can register through the MWELA Website (www.mwela.org). If you have any questions, please contact Joe Gehardt preferably by phone at (202) 496- 0400 (ask for Leoni); or by email at jgebhardt@gebhardtlaw.com .

– Joe Gebhardt, Co-Chair, Case Advisory Committee

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January

Case Summaries: Around the Nation

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January

Associate Cannot Pursue Wrongful Termination Based on Refusal to Violate Ethics Rules

Anthony Gadlage v. Winters & Yonker, Attorneys at Law, P.S.C., No. 3:11-CV-354-H (W.D.K.Y. Dec. 29, 2011).

A federal judge has dismissed a suit by an associate who claims he was fired from his personal injury law firm for refusing to participate in an unethical referral scheme. An illegal discharge claim can't be premised on a violation of legal ethics rules, according to the Dec. 29 opinion by Judge John Heyburn II of Louisville, Ky.

The ABA/BNA article summarizing the decision is at: http://www.abajournal.com/news/article/judge_tosses_suit_by_associate_cl....

– submitted by Julie Martin-Korb

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Newsletter - January/February 2012
January

Case Summaries: District of Columbia Summaries

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Newsletter - January/February 2012
January

D.C. Circuit Reverses Summary Judgment on Exhausted Discrimination Claim and Retaliation Claim

Hamilton v. Geithner, No. 10-5419 (D.C. Cir. Jan. 17, 2012).

The D.C. Circuit, in a decision by Judge Tatel (joined by Judges Garland and Ginsburg, with no dissent or concurrence), held that Judge Walton erred in granting summary judgment in a Title VII discrimination and retaliation case brought by an IRS employee. Although one discrimination claim was not administratively exhausted, the other discrimination claim - denial of a permanent promotion - was properly before the court. The retaliation claim was remanded for further analysis by the district court.

There is some good language about the need not to grant summary judgment when there exists a sufficient dispute as to the comparative qualifications of the plaintiff and the successful applicant, particularly when there are "other flaws" in the hiring process - here a failure to keep any documentation of the interviews, and apparent spoliation of evidence, along with improper reliance on subjective criteria in evaluating the applicants.

TATEL, Circuit Judge:

Appellant, an employee of the Internal Revenue Service, alleges that the Service discriminated against him on the basis of race and gender when it awarded a temporary detail and then a permanent promotion to a white female employee. Appellant also claims that the IRS retaliated against him when he pursued the matter with its Equal Employment Opportunity office. The district court granted summary judgment to the government on all three claims. We agree that appellant failed to exhaust his claim regarding the temporary detail and so affirm that portion of the district court's judgment. But because we conclude that a reasonable jury could find that the government's proffered nondiscriminatory reason for denying appellant the permanent promotion was pretextual and that discrimination was the real reason, we reverse the grant of summary judgment on the discriminatory promotion claim and remand to allow that claim to proceed to trial. And because we conclude that appellant established a prima facie case of retaliation, we remand that claim for further proceedings consistent with this opinion. . . .

. . . . In support of his promotion discrimination claim, Hamilton argues that the Secretary's proffered reason for denying him the GS-14 Safety Manager promotion--that Hamilton " 'did not perform well in his interview . . . as compared to [Burrell's] performance,' " Hamilton I, 542 F. Supp. 2d at 43 (quoting Def.'s Mem. at 7)--was pretext for discrimination. According to Hamilton, the district court erred in granting summary judgment on this claim because a reasonable jury could infer discrimination based on evidence of (1) Hamilton's superior qualifications for the Safety Manager position, (2) the highly subjective nature of the government's reasons for not hiring Hamilton, and (3) procedural irregularities in the selection process. Where, as here, the employer claims a legitimate, nondiscriminatory explanation for its decision to promote one employee over another, the "one central inquiry" on summary judgment is "whether the plaintiff produced sufficient evidence for a reasonable jury to find that the employer's asserted nondiscriminatory reason was not the actual reason and that the employer intentionally discriminated against the plaintiff on a prohibited basis." Adeyemi v. District of Columbia, 525 F.3d 1222, 1226 (D.C. Cir. 2008). We consider this question "in light of the total circumstances of the case," asking "whether the jury could infer discrimination from the combination of (1) the plaintiff's prima facie case; (2) any evidence the plaintiff presents to attack the employer's proffered explanation for its actions; and (3) any further evidence of discrimination that may be available to the plaintiff . . . or any contrary evidence that may be available to the employer." Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1289, 1291 (D.C. Cir. 1998) (en banc). Because in appropriate cases a "factfinder's disbelief of the reasons put forward by the defendant" may support an inference of intentional discrimination, St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993), we do not routinely require plaintiffs "to submit evidence over and above rebutting the employer's stated explanation in order to avoid summary judgment." Aka, 156 F.3d at 1290. In reviewing the district court's grant of summary judgment, moreover, we view the evidence in the light most favorable to Hamilton and draw all reasonable inferences in his favor, taking care neither to make credibility determinations nor weigh the evidence before us. Jones, 557 F.3d at 674, 681. Ultimately, we may affirm the district court's judgment only if we are able to conclude that no reasonable jury could reach a verdict in Hamilton's favor. Id. at 674.

Although Hamilton relies on a wide range of evidence to attack the Secretary's proffered nondiscriminatory explanation, the parties' briefs focus first and foremost on the evidence of Hamilton's and Burrell's qualifications, so we shall begin there as well. The Supreme Court has held that "qualifications evidence may suffice, at least in some circumstances," to show that an employer's proffered explanation is pretext for discrimination. Ash v. Tyson Foods, Inc., 546 U.S. 454, 457 (2006). Although the Court has declined to define "precisely what standard should govern," id., our cases have developed a framework for evaluating claims "involving a comparison of the plaintiff's qualifications and those of the successful candidate." Aka, 156 F.3d at 1294. Pursuant to our decision in Aka v. Washington Hospital Center, "[i]f a factfinder can conclude that a reasonable employer would have found the plaintiff to be significantly better qualified for the job, but this employer did not, the factfinder can legitimately infer that the employer consciously selected a less-qualified candidate--something that employers do not usually do, unless some other strong consideration, such as discrimination, enters into the picture." Id. That said, "we must assume that a reasonable juror who might disagree with the employer's decision, but would find the question close, would not usually infer discrimination on the basis of a comparison of qualifications alone." Id. For this reason, a disparity in qualifications, standing alone, can support an inference of discrimination only when the qualifications gap is "great enough to be inherently indicative of discrimination"--that is, when the plaintiff is "markedly more qualified," "substantially more qualified," or "significantly better qualified" than the successful candidate. Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir. 2006) (internal quotation marks omitted).

Applying this standard here, we believe, as explained in detail below, that a jury confronted with the record evidence could find that Hamilton had far more formal training and education than Burrell, significantly greater technical expertise, and broader experience developing and managing complex safety programs. Whether this evidence would be sufficient to allow such a jury to find Hamilton "significantly" or "markedly" more qualified than Burrell, Holcomb, 433 F.3d at 897, and thus to infer discrimination based on qualifications evidence alone, presents a relatively close question. Given the record in this case, however, it is a question we need not conclusively resolve. Our task is to "review the record taken as a whole," Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (internal quotation marks omitted), and plaintiffs are "expressly not limited to comparing [their] qualifications against those of the successful applicant; [they] may seek to expose other flaws in the employer's explanation." Holcomb, 433 F.3d at 897; see also Ash, 546 U.S. at 458 (noting approvingly the Eleventh Circuit's suggestion that "superior qualifications may be probative of pretext when combined with other evidence"). Here, Hamilton relies not only on comparative qualifications evidence, but also "seek[s] to expose," Holcomb, 433 F.3d at 897, procedural irregularities in a highly subjective selection process. Reviewing the record as a whole, we agree that the evidence of Hamilton's superior qualifications taken together with "other flaws in the employer's explanation," id., creates a genuine issue of material fact that only a jury can resolve. . . .

. . . . Accordingly, and drawing all reasonable inferences in Hamilton's favor, we believe that a reasonable jury could find that, by comparison to Burrell, Hamilton had much greater technical expertise, more experience developing complex, large-scale safety programs, and far more formal training in occupational health and safety. This combination of superior knowledge and experience, in turn, could lead the jury to conclude that Hamilton was significantly better qualified for the Safety Manager promotion. But even if this disparity alone is insufficient, a reasonable jury, considering Hamilton's stronger qualifications together with "other flaws in the employer's explanation," Holcomb, 433 F.3d at 897, could still reach a verdict in Hamilton's favor. These flaws fall into two categories.

First, the record contains no contemporaneous documentation of the Secretary's proffered explanation--that Burrell outperformed Hamilton in the interview. ...

. . . Although we certainly do not suggest that a jury must or should draw an adverse inference, this absence of documentation, coupled with the missing page of Huston's interview notes, could lead a reasonable jury to doubt the Secretary's explanation, particularly given that the IRS requires documentation of a promotion action "sufficient for a reviewer to reconstruct the action in its entirety" as well as maintenance of complete promotion files for two years. Internal Revenue Manual § 6.335.1.12.16 (2002).

Second, the Secretary's proffered nondiscriminatory explanation relies heavily--indeed entirely--on subjective considerations, and our case law instructs us to treat such explanations with caution on summary judgment. See Aka, 156 F.3d at 1298 (noting that "courts traditionally treat explanations that rely heavily on subjective considerations with caution" and that "an employer's heavy use of highly subjective criteria, such as interpersonal skills, could support an inference of discrimination" (internal quotation marks omitted)). Although "employers may of course take subjective considerations into account in their employment decisions," we have repeatedly expressed concern about the ease with which heavy reliance on subjective criteria may be used to "mask" or "camouflage" discrimination. Id. (internal quotation marks omitted). "Subjective criteria," we have e xp l a i n e d , " l e nd them s e lve s to r a c i a l l y discriminatory abuse more readily than do objective criteria." Harris v. Group Health Ass'n, Inc., 662 F.2d 869, 873 (D.C. Cir. 1981). . . .

. . . . To sum up, then, we believe that, when taken together, the evidence of a significant disparity in the candidates' qualifications, the highly subjective nature of the Secretary's proffered nondiscriminatory explanation, and the absence of any contemporaneous documentation supporting that explanation could lead a reasonable jury to disbelieve the Secretary and to reach a verdict in Hamilton's favor. Of course, after hearing live testimony, assessing witness credibility, and weighing the evidence, the jury might also conclude that Hamilton was not significantly more qualified than Burrell and that Burrell's interview performance legitimately tipped a difficult choice in her favor. But the record suggests that these issues "properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). We shall therefore reverse the grant of summary judgment on Hamilton's discriminatory promotion claim and remand for trial. . . .

The decision is available on - line at : http://www.cadc.uscourts.gov/internet/opinions.nsf/ 7F33C45097F907D4852579880056CBFE/$file/10- 5419-1352774.pdf,

– submitted by Alan R. Kabat

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January

Small Firms vs. Large Firms Distinguished in Awarding Fees

Heller v. District of Columbia, No. 2003-CV-0213 (D.D.C. Dec. 29, 2011)

U.S. District Judge Sullivan, in the gun control litigation, just issued a lengthy decision on the plaintiffs' attorney fee petition. Plaintiffs sought the "enhanced Laffey rates" and over $3 million in fees and expenses; the District of Columbia argued that only the regular Laffey matrix was justified, and that around 840k in fees were warranted. The fee petition was high because of the multiple appeals, including to the Supreme Court. After a lengthy discussion of the two versions of the Laffey matrix, Judge Sullivan concludes that the enhanced matrix is not warranted for small firms, because the enhanced matrix is based on market rates for large firms that have much higher overhead and where the partners are paid higher compensation than at smaller firms.

Judge Sullivan also expressed significant concern with the fact that three of the lead attorneys did not have contemporaneous time records, but instead "reconstructed" their time. Also, one attorney's time records were too vague, warranting a further reduction. Also, no lodestar enhancement was warranted, notwithstanding the path-breaking nature of this litigation on issues of first impression.

The result is a fee award of about $1.13 million, much closer to the District's position.

The opinion is available on-line at: https://ecf.dcd. uscourts.gov/cgi-bin/show_public_doc?2003cv0213- 86.

– submitted by Alan R. Kabat

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January

Case Summaries: Maryland Summaries

Newsletter Volume: 
Newsletter - January/February 2012
January

Maryland Court of Appeals Finds Severe Latex Allergy to be a Protected Disability

Meade v. Shangri-la P'ship, No. 128, Sept. Term 2008 (Md. Jan. 26, 2012).

The Court of Appeals reversing the Court of Special Appeals found that a severe latex allergy was a disability, and reinstated the jury verdict in favor of the Plaintiff. In this case, Lisa Meade, a parent of a 2-year old son, objected to the use of powdered latex gloves at her son’s pre-school due to Ms. Meade’s severe latex allergy. Efforts to get the school to change its practices failed, and Ms. Meade sued for discrimination based on her “handicap”.

Highlights include:

1. The Court of Appeals reversed the judgment of the Court of Special Appeals and reinstates the jury verdict. The Court of Special Appeals had reversed the jury verdict in favor of Meade on her claims of handicap discrimination and retaliation on the grounds that she did not have a "handicap" within the meaning of Md. Code Art. 49B s 42 and the Howard County Code.

2. The Court of Appeals rejected the application of ADA caselaw, specifically Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002) and Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), to construe the Maryland state and county disability discrimination laws.

3. The Court of Appeals rejected the "demanding standard for qualifying as disabled."

4. The Court of Appeals again relied on Haas v. Lockheed Martin, 396 Md. 469, 914 A.2d 735 (2007) for the proposition that Maryland courts should construe Maryland statutes on their own "plain meaning" terms, and not simply rely on federal decisional law construing federal statutes.

5. The Court of Appeals noted the Congress explicitly repudiated Toyota Motor and Sutton with the ADA Amendments Act of 2008.

6. The Court of Appeals recognized that socialization and parenting are major life activities.

7. The Court of Appeals recognized that a severe latex allergy can constitute a "handicap."

8. The Court of Appeals awarded costs to the Petitioner, even her costs at the Court of Special Appeals where she lost.

9. The Court of Appeals directed the Circuit Court to consider Petitioner's request for appellate attorney's fees. (Appellate counsel was not trial counsel.)

– submitted by Julie Martin-Korb

Notably, MWELA and MELA joined with the Public Justice Center 3 years ago (!) in submitting an amicus brief (with other organizations, such as the MDLC, and the Maryland Nurses Association) that provided a substantial demonstration of the wayward course of law taken by the Supreme Court and other courts interpreting the old ADA, such as (when considering whether an individual is "substantially limited") consideration of the disability only in a mitigated state, failure to make an individualized inquiry concerning the limitation, and failing to recognize as a substantial limitation a disability that is temporal or intermittent. Amici urged the Court of Appeals to instead stay true to an appropriately broad interpretation of Court of Special Appeals consistent with its purpose and plain terms. So this is a yet another win for MWELA and MELA too!

The decision is available online at: http://mdcourts.gov/opinions/CourtofAppeals/2012/128a08.pdf.

The MWELA, et al. amicus brief, co- authored by Jonathan Puth (MWELA) and Matthew Hill (of the Public Justice Center), is online at: http://www.mwela.org/docs/MWELABriefAmicus200901-Meade-v-ShangriLa.pdf .

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January

Case Summaries: Supreme Court Summaries

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January

Ministerial Exception Applies and Precludes ADA Retaliation Claim by Church School Teacher

Hosanna-Tabor v. EEOC, No. 10-553 (U.S. Jan. 2012).

The Supreme Court, in Hosanna-Tabor v. EEOC, reversed the Sixth Circuit - which had held that a teacher (Ms. Perich) at a church school could bring a ADA retaliation claim - and instead held that the religious or ministerial exemption to ADA (similar to that for Title VII) precluded her claims, since the church regarded the teacher as a minister.

However, this decision does illustrate the fact-specific nature of this determination. For example, Ms. Perich not only took a tax exclusion for her housing - an exclusion limited to members of the ministry - but also submitted a statement in which she said that God had called her to teaching, and was a commissioned minister.

CHIEF JUSTICE ROBERTS delivered the opinion of the Court.

Certain employment discrimination laws authorize employees who have been wrongfully terminated to sue their employers for reinstatement and damages. The question presented is whether the Establishment and Free Exercise Clauses of the First Amendment bar such an action when the employer is a religious group and the employee is one of the group's ministers. . . .

. . . . Hosanna-Tabor moved for summary judgment. Invoking what is known as the "ministerial exception," the Church argued that the suit was barred by the First Amendment because the claims at issue concerned the employment relationship between a religious institution and one of its ministers. According to the Church, Perich was a minister, and she had been fired for a religious reason--namely, that her threat to sue the Church vio-lated the Synod's belief that Christians should resolve their disputes internally.

The District Court agreed that the suit was barred by the ministerial exception and granted summary judgment in Hosanna-Tabor's favor. The court explained that "Hosanna-Tabor treated Perich like a minister and held her out to the world as such long before this litigation began," and that the "facts surrounding Perich's employment in a religious school with a sectarian mission" supported the Church's characterization. 582 F. Supp. 2d, at 891- 892. In light of that determination, the court concluded that it could "inquire no further into her claims of retaliation." Id., at 892.

The Court of Appeals for the Sixth Circuit vacated and remanded, directing the District Court to proceed to the merits of Perich's retaliation claims. The Court of Appeals recognized the existence of a ministerial exception barring certain employment discrimination claims against religious institutions-- an exception "rooted in the First Amendment's guarantees of religious freedom." 597 F. 3d 769, 777 (2010). The court concluded, however, that Perich did not qualify as a "minister" under the exception, noting in particular that her duties as a called teacher were identical to her duties as a lay teacher. Id., at 778-781. Judge White concurred. She viewed the question whether Perich qualified as a minister to be closer than did the majority, but agreed that the "fact that the duties of the contract teachers are the same as the duties of the called teachers is telling." Id., at 782, 784.

We granted certiorari. 563 U. S. ___ (2011). . . . .

Until today, we have not had occasion to consider whether this freedom of a religious organization to select its ministers is implicated by a suit alleging discrimination in employment. The Courts of Appeals, in contrast, have had extensive experience with this issue. Since the passage of Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e et seq., and other employment discrimination laws, the Courts of Appeals have uniformly recognized the existence of a "ministerial exception," grounded in the First Amendment, that precludes application of such legislation to claims concerning the employment relationship between a religious institution and its ministers.

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

Newsletter Volume: 
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January

Dismissal of Action After Removal From State Court

Willie D. Bullock v. Janet Napolitano, Sec’y, U.S. Dep’t of Homeland Security, No. 10-1222 (4 th Cir. Jan. 23, 2012).

On January 23, 2012, the Fourth Circuit (in a rare published opinion) affirmed dismissal of a Title VII claim for lack of jurisdiction because it had been first filed in state court and then removed to federal court.

From the majority (Judge Paul Niemeyer writing for himself and Judge George Agee):

"After Willie Bullock filed this racial discrimination action under Title VII of the Civil Rights Act of 1964 in a North Carolina state court, naming as the defendant the Secretary of the U.S. Department of Homeland Security, the Secretary removed the case to federal court under 28 U.S.C. § 1442(a). She then filed a motion to dismiss, claiming that she did not waive sovereign immunity so as to be subject to suit in state court and, therefore, the state court did not have subject matter jurisdiction. She also claimed that because the removal process itself did not create jurisdiction in federal court, the federal court likewise did not have subject-matter jurisdiction under the doctrine of derivative jurisdiction. The district court agreed and granted the Secretary's motion to dismiss."

"We conclude that because the United States and the Secretary of Homeland Security did not consent to be sued in a North Carolina state court under Title VII, the state court lacked subject-matter jurisdiction. Inasmuch as removal to federal court, under the doctrine of derivative jurisdiction, did not cure that jurisdictional defect, we affirm the district court's order."

From Judge Roger Gregory's dissent: "Under unanimous Supreme Court precedent, a plaintiff may file a suit alleging a violation of Title VII in either state or federal court. The remaining limitation that exists where the defendant is a federal employer--sovereign immunity--was expressly waived in Title VII actions via § 2000-e16. Today's majority incorrectly extends the requirement that Congress expressly waive sovereign immunity to also require Congress to likewise expressly waive exclusive federal jurisdiction over Title VII actions, a jurisdiction that is neither exclusive nor presumed under our system of dual sovereignty and binding Supreme Court precedent. For these reasons, I respectfully dissent."

-- submitted by Thomas J. Gagliardo

Newsletter Volume: 
Newsletter - January/February 2012
January

Fourth Circuit Cites to Iqbal/Twombly Standard in Reviewing Dismissal of Complaint

McCaskey v. Henry, No. 11-1650, (4 th Cir. Jan. 17, 2012) (unpublished)

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Pro se parties' pleadings are to be construed liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). Title VII makes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a) (2006). In order to establish a prima facie claim of a discriminatory failure to promote under Title VII, a plaintiff must show that: "(1) she is a member of a protected group, (2) there was a specific position for which she applied, (3) she was qualified for that position, and (4) [her employer] rejected her application under circumstances that give rise to an inference of discrimination." Williams v. Giant Food Inc., 370 F.3d 423, 430 (4th Cir. 2004).

The district court found that McCaskey met the first two elements and declined to rule on the third. It dismissed McCaskey's complaint because it found that she had failed to plead facts that gave rise to an inference of discrimination. We disagree. In her filings, McCaskey, who is black, asserts that she was denied a promised promotion to a supervisory position and that, thereafter, a white female was promoted into the supervisory position. A showing that a member outside of the protected class received a promotion instead of the plaintiff is sufficient to create an inference of discrimination. Carter v. Ball, 33 F.3d 450, 458 (4th Cir. 1994). McCaskey has thus alleged facts that give rise to an inference of discrimination sufficient to survive a motion to dismiss. We therefore vacate the district court's dismissal of her failure to promote claim.* [* By this disposition, we indicate no view of the ultimate resolution of McCaskey's claim of discrimination.] On remand, the district court should determine whether McCaskey sufficiently pleaded that she was qualified for the position.

McCaskey's complaint also alleged that she was wrongfully terminated as a result of racial discrimination. McCaskey's filings state that a black man was promoted to fill her position after her termination. A claim of discriminatory termination requires a showing that the position remained open after the plaintiff's termination or was filled by an applicant outside of the protected class. Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004) (en banc). McCaskey identified racial discrimination as the sole basis of her complaint. The district court properly found that her claim of discriminatory termination fails because a member of her protected class was promoted into her position after her termination.

-- submitted by Thomas J. Gagliardo

Newsletter Volume: 
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January

Fourth Circuit Remands Case for Enforcement Barbara M. Murchison, v. Michael J. Astrue, No. 10-1200, No. 11-1462 (4 th Cir. Feb. 15, 2012)(Unpublished).

PER CURIAM:

“Barbara Murchison commenced an action in district court, seeking enforcement of a prior Equal Employment Opportunity Commission (“EEOC”) order requiring that the Social Security Administration (“SSA”), her employer, return her to her prior position or its equivalent (“Enforcement Claim”). Murchison also alleges that the SSA unlawfully failed to promote her on two separate occasions (“Promotion Claims”). She now appeals the district court’s grant of summary judgment in favor of the SSA. She also appeals the denial of a Rule 60(b) motion for relief from judgment. For the reasons that follow, we affirm the grant of summary judgment with respect to the Promotion Claims, vacate the grant of summary judgment with respect to the Enforcement Claim, reverse the denial of the Rule 60(b) motion, and remand for further proceedings.”

The argument was greatly assisted by a moot court including Tammany Kramer, Bob Fitzgerald, Jerry Goldstein, Tom Gagliardo, and James Richard. (I hope I haven't forgotten anyone).

Technically, the court reversed the district court's denial of our Rule 60(b) motion, and remanded with instructions to enforce the substantive relief we sought. The court based its decision on the fact that the Social Security Administration had successfully17 MWELA MONTHLY Jan./February 2012 lied to the EEOC, a fact which we eventually got the EEOC to admit.

-- submitted by Phillip R. Kete

Newsletter Volume: 
Newsletter - January/February 2012
January

Fourth Circuit Reverses Summary Judgment in Discrimination Case

Burgess v. Bowen, No. 10-2081 (4th Cir. Feb. 17, 2012) (unpublished).

The Fourth Circuit, in an unpublished decision, reached a favorable result in reversing the judgment entered by Judge Cacheris (E.D. Va.). The Washington Lawyers Committee, together with attorneys from Steptoe & Johnson (Linda Bailey, Michael Baratz and others), represented the plaintiff, who brought race discrimination and retaliation claims arising out of her termination and the employer's refusal to offer her an alternate position. Judge Cacheris entered summary judgment; plaintiff successfully argued on appeal that he improperly made credibility decisions and decided inferences against her; and he misapplied the rule of St. Mary's Honor Center v. Hicks (1993), by essentially applying a "pretext plus" standard, contrary to Reeves.

MWELA filed an amicus brief, which focused on the correct standard for summary judgment, explained why "pretext plus" was improper, and discussed some of the secondary literature on summary judgment in employment law cases. It is online at: Some excerpts follow:

DIAZ, Circuit Judge:

Denise Burgess, an African American female, was terminated from her executive-level position at a federal agency, purportedly due to a reorganization necessitated by budgetary pressures. The district court granted summary judgment to the agency on Burgess's claims alleging discrimination and retaliation based on her termination and the denial of a transfer to another position within the agency. Viewing the record evidence in the light most favorable to Burgess, we conclude that granting summary judgment to the agency was inappropriate. Accordingly, we vacate the district court's judgment and remand for further proceedings.

[Factual background - plaintiff was the only person terminated in a "reorganization" of the office, but her job duties were taken over by a less-qualified white woman].

. . . . It is not the district court's role to "weigh the evidence and determine the truth of the matter" but instead to determine whether there are "genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250. A district court considering a motion for summary judgment must view the evidence in the light most favorable to the nonmoving party, Unus v. Kane, 565 F.3d 103, 115 (4th Cir. 2009), and draw all inferences in favor of the nonmovant, Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991).

B.

A three-step framework applies to the resolution of discrimination and retaliation claims where, as here, there is only circumstantial evidence. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973) (discrimination); Lamb v. Boeing, 213 F. App'x 175, 179 (4th Cir. 2007) ("Retaliation claims function in parallel.") (citing Beall v. Abbott Labs., 130 F.3d 614, 619 (4th Cir. 1997)). . . .

. . . . The parties dispute whether the district court applied an incorrect standard in evaluating Burgess's discrimination claims. Following the Supreme Court's opinion in St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993), many district courts required plaintiffs to provide additional evidence to demonstrate racial discrimination, once the burden shifted back to the plaintiff after an employer's proffer of a legitimate nondiscriminatory reason for its action. This "pretext plus" standard stemmed from the Court's pronouncement that, after the employer's proffer, "[t]he plaintiff then has 'the full and fair opportunity to demonstrate,' through presentation of his own case and through crossexamination of the defendant's witnesses, 'that the proffered reason was not the true reason for the18 MWELA MONTHLY Jan./February 2012 employment decision,' and that race was." Id. at 507- 08 (quoting Burdine, 450 U.S. at 256).

In Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133 (2000), the Supreme Court clarified that a prima facie case of discrimination, combined with evidence from which a jury could conclude that an employer's proffered justification was false, supported an inference of discrimination sufficient to defeat summary judgment. In other words, a plaintiff is not required to provide additional evidence that race was the true reason for the employment decision. . . .

Applying the McDonnell Douglas framework, the district court found with respect to all four claims that Burgess either failed to establish a prima facie case of discrimination or retaliation, or failed to demonstrate pretext after SIIR provided legimate nondiscriminatory reasons. The district court thus granted summary judgment to SIGIR on all four of Burgess's claims. Burgess contests the district court's ruling on each claim, asserting that the district court (1) held her discrimination claims to the "pretextplus" standard the Supreme Court rejected in Reeves and (2) erred in concluding that there was no evidence to support a causal connection between Burgess's protected activity and the agency's decision to both terminate Burgess and deny her a transfer. . . .

IV.

In sum, the record in this case reveals an abundance of genuine factual disputes on material issues. While we have viewed and recounted the facts in the light most favorable to Burgess, we acknowledge that SIGIR's contentions also find support in the record. Be that as it may, the evidence in this case was not "so one-sided" as to warrant granting SIGIR's motion for summary judgment on Burgess's claims. Accordingly, we vacate the district court's judgment and remand for further proceedings.

VACATED AND REMANDED

The decision is available online at: http://www.mwela.org/docs/MWELABriefAmicus2 0110214-Burgess-Bowen.pdf.

– submitted by Alan R. Kabat

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President's Club Members

(as of February 10, 2012)

Les Alderman
Alderman, Devorsetz & Hora, PLLC

John Ates
Ates Law Firm, P.C.

Alan Banov
Alan Banov and Associates

Josh Bowers
Law Office of Joshua F. Bowers, PC

Stephen Bruce
Stephen R. Bruce Law Offices

Adam Carter
The Employment Law Group, P.C.

David Cashdan
Cashdan & Kane

Linda Correia
Webster, Fredrickson, Correia, & Puth, PLLC

Bruce Fredrickson
Webster, Fredrickson, Correia, & Puth, PLLC

Jonathan Gould
Law Office of Jonathan L. Gould

Neil Henrichsen
Henrichsen Siegel, PLLC

John Karl, Jr.
McDonald & Karl

Daniel Kohrman
AARP Foundation Litigation

Alan Lescht
Alan Lescht & Associates, PC

R. Scott Oswald
The Employment Law Group P.C.

Patricia Payne
Payne & Associates

Jonathan Puth
Webster, Fredrickson, Correia, & Puth, PLLC

David Scher
The Employment Law Group, P.C.

Nicholas Woodfield
The Employment Law Group, PC

Philip Zipin
Zipin Law Firm, LLC

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Sustaining Members

(as of February 10, 2012)

Lisa Banks
Katz, Marshall & Banks, LLP

Lynne Bernabei
Bernabei & Wachtel, PLLC

John Berry
Berry & Berry PLLC

Marni Byrum
McQuade Byrum P.L.L.C.

Denise Clark
The Law Office of Denise M. Clark, PLLC

Boniface Cobbina
Law Offices of Boniface K. Cobbina, P.C.

Brian, Darville
Brocadiant PLLC

Gerardine Delambo
Gerardine Delambo, Attorney at Law

Ellen Eardley
Mehri & Skalet, PLLC

Lisa Goldblatt
The Goldblatt Law Firm

Jerry Goldstein
Bulman, Dunie, Burke & Feld

Betty Grdina
Mooney, Green, Baker & Saindon, P.C.

Cathy Harris
Kator, Parks & Weiser PLLC

Michael Hoare
Michael J. Hoare, PC

Alan, Kabat
Bernabei & Wachtel, PLLC20 MWELA MONTHLY Jan./February 2012

Steven Kahn
Kahn & Scharman, LLC

Michael Kator
Kator, Parks & Weiser PLLC

Debra Katz
Katz, Marshall & Banks, LLP

H. David Kelly, Jr.
Beins, Axelrod, P.C.

James Klimaski
Klimaski & Associates, PC

David Marshall
Katz, Marshall & Banks, LLP

Jessica Parks
Kator, Parks & Weiser PLLC

Meenakshi Rajan
The Law Office of Denise M. Clark

Julia Roumm
The Law Office of Denise M. Clark

James Rubin
Rubin Employment Law Firm, PC

Micah Salb
Lippman, Semsker & Salb, LLC

David Schreiber
David E. Schreiber, P.C.

Richard Seymour
Law Office of Richard T. Seymour, P.L.L.C.

Beth Slavet
Beth S. Slavet, PC

J.Thomas Spiggle
Spiggle Law Firm

Larry Stein
Law Offices of Larry J. Stein

David Wachtel
Bernabei & Wachtel, PLLC

Jeremy Wright
Kator, Parks & Weiser PLLC

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