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

Newsletter Volume: 
Newsletter - January/February 2012
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

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Newsletter - January/February 2012
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

Newsletter Volume: 
Newsletter - January/February 2012
January