The sage continues… The Court of Appeals of Maryland granted certiorari in the case Joy Friolo v. Douglas Frankel et al. - Case No. 102, Sept. Term, 2011 on December 16, 2011. Available on-line at http://www.courts.state.md.us/coappeals/grants/12_ 11grants.html.
Julia M. Taylor v. Giant of Maryland, LLC, Nos. 9 & 10, September Term 2010 (Md. Dec. 6, 2011), 2011 WL 6032713.
JoAnn Myles represented the employee at trial and on the first appeal to the Court of Special Appeals; Cynthia Young (Annapolis) was co-counsel to the employee on the second appeal. Connie Bertram represents the employer.
The jury found that Giant Food discriminated against Ms. Taylor, a female truck driver with uterine fibroids, and awarded her compensatory damages of $644,750 (but no punitive damages), under the Prince George’s County anti-discrimination ordinance. The Circuit Court Judge awarded almost $545,000 in attorney’s fees and expenses.
The Court of Special Appeals reversed on the grounds that her claims were preempted by Section 301 of the Labor Management Relations Act of 1947 because the underlying issues relating to the employer’s request for an independent medical examination required interpretation of the CBA. 188 Md. App. 1, 981 A.2d 1 (Ct. Spec. App. 2009). Also, her failure to take the IME did not constitute an adverse employment action, that her proffered comparators were not similarly situated, and there was no evidence that the decision-makers knew that she had filed a discrimination charge.
MELA and MWELA submitted an amicus brief drafted Deb Eisenberg and Julie Martin, with some editing and revisions by Alan Kabat. This appeal concerned (1) the extent to which another employee must be similar to the plaintiff in order to be a proper “comparator” for purposes of discrimination analysis; (2) whether an employer’s discriminatory or retaliatory conduct against an employee must rise to the level of an “adverse employment action” in order to be prohibited; (3) whether an employee must demonstrate that the individual decision-maker had actual knowledge of her protected activity in order to prove retaliatory discharge; and (4) to what extent the proof in a discrimination or retaliation case can touch upon the provisions of a collective bargaining agreement without implicating the preemptive effect of Section 301 of the LMRA. Oral argument was on September 8, 2010; MWELA also hosted a moot court.
On December 6, 2011, the Court of Appeals issued its unanimous decision in favor of Ms. Taylor on the adverse action and comparator issues, as well as on the preemption issues. The Court of Appeals also held that the employer’s notice of appeal as to the attorney’s fee issue – filed 34 days after the judgment – was too late. However, the Court of Appeals remanded for further consideration of several issues raised in Giant’s first appeal that were not considered by the Court of Special Appeals.
The case is available online at : http://mdcourts.gov/opinions/coa/2011/9a10.pdf.
– submitted by Alan R. Kabat