Newsletter - November/December 2011


Conferences and Seminars


Save the Date: MWELA Annual Conference Date: Friday, March 9, 2012 Place The Westin City Center, Washington, D.C. Visit for the most current information.

D.C. Bar Programs

“Introduction to Department of Defense Security Clearance Cases,” January 25, 2012, 6 - 9:15 p.m. The cost is $89 for Section members, $99 for D.C. Bar members, $109 for Government attorneys, and $129 for others.

“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.

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:

MWELA Case Evaluation Clinic

For more information about MWELA's Case Advisory Service or about our next Case Evaluation Clinics, please call me at 202-496-0400 or email me at . We are prepared to promptly schedule a Case Evaluation Clinic for any MWELA member with an urgent need for advice on a particular case.

– Joe Gebhardt, Co-Chair, Case Advisory Committee


Verdicts, Orders & Settlements


Amtrak Settles Sex/ Wage Discrimination/ RetaliationSuit Brought by EEOC

On November 10, 2011, the Equal Employment Opportunity Commission announced that Amtrak, the nation’s largest rail carrier, will pay $171,483, raise the salary of a female human resources manager, and furnish other relief to settle a sex-based wage discrimination and retaliation lawsuit.

The EEOC charged that the National Railroad Passenger Corporation, also known as Amtrak, violated Title VII by engaging in a long-standing pattern of unlawful sex discrimination against a human resources regional director, Sheila Davidson, who works at the carrier’s 30th Street Station facility in Philadelphia. The EEOC said that Amtrak suppressed Davidson’s pay while she served as the human resources director for the eastern region, while giving her a greater workload than it gave to her two male counterparts, who were also human resources regional directors. The EEOC further alleged that, after refusing to raise Davidson’s salary above that of her male counterparts despite her heavier workload, Amtrak immediately increased the pay of one of the males when he was assigned to the eastern region, which was formerly Davidson’s territory.

The EEOC also contended that Amtrak violated Title VII and the Equal Pay Act by unlawfully retaliating against Davidson, including barring her from senior staff meetings, after she complained internally about the wage discrimination and later filed a charge with the EEOC.

The EEOC filed suit in U.S. District Court for the Eastern District of Pennsylvania (Civil Action No. 2:11-cv-00692) after first attempting to reach a prelitigation settlement through its conciliation process.

In addition to the $171,483 monetary settlement to be paid to Davidson, Amtrak will increase her annual salary by $16,505 to match it to that now earned by the male colleague whose salary was raised when he was assigned to Davidson’s former territory. The two-year consent decree resolving the lawsuit also prohibits Amtrak from engaging in any further sex discrimination or retaliation and requires the rail carrier to provide four hours of training to senior human resources staff on anti-discrimination laws, as well as post a remedial notice at Amtrak’s six regional offices and corporate headquarters.

“As a member agency of the President’s Equal Pay Enforcement Task Force, the EEOC is committed to taking appropriate action to remedy sex-based wage discrimination and to ensuring that employees who exercise their federal rights to protest pay discrimination are not subjected to unlawful retaliation,” said Spencer H. Lewis, Jr., director of the EEOC’s Philadelphia District Office, which oversees Pennsylvania, West Virginia, Delaware, Maryland, and parts of New Jersey and Ohio.

EEOC Regional Attorney Debra Lawrence added, “In addition to the significant monetary relief, Amtrak will raise Ms. Davidson’s salary so it is on par with her male counterparts and commensurate with her duties. We are pleased that Amtrak worked with us to resolve this lawsuit expeditiously without engaging in costly litigation.”

– EEOC, Press Release 11/10/11


Attorneys’ Fees Were Awarded at Laffey Rates in Eastern District of Virginia

We received a decision in Bland v. Fairfax County regarding our fee petition. Judge Cacheris awarded us nearly every penny that we put in for - at our Laffey rates and everything! We requested $310,000, and he awarded $305,000. Anyone putting in for fees in Eastern District of Virginia should definitely ask us for a declaration re: reasonableness of Laffey rates on this side of the river.

The jury's compensatory damages award did not fare as well before Judge Cacheris. The jury awarded $250,000.00 for our client's immense pain and suffering, and Judge Cacheris cut it to $50,000.00.

– submitted by Ellen K. Renaud


Court Grants Class Status in Wage and Hour/FLSA Case

On December 21, 2011, Maryland U.S. District Court Judge Peter J. Messitte granted class certification in a hybrid state wage-and-hour case/Fair Labor Standards Act collective action. The class consists of 152 Pinkerton's security guards at Andrews Air Force Base who were denied 45 minutes of pay per day for on-duty meal breaks. Pinkerton had a policy that the 45 minutes automatically be deducted from pay even though during their meal break the guards were confined to post, a guard shack, and required to be armed, listening to their radio and available to respond to emergencies.

Defendant strenuously argued that Dukes v. WalMart Stores, Inc. required the judge to deny class certification. Judge Messitte found unpersuasive Defendant's argument that because individual employees had different experiences in how often their meal periods were interrupted to perform duty, there was no commonality for a class. Judge Messitte noted that under both relevant tests used by Fourth Circuit courts, the facts, especially the fact that the guards were confined to post during the meal periods, indicated that the entire meal period was compensable, making the common policy to deduct 45 minute for the meal period appropriate for class certification.

Michael T. Anderson of Murphy Anderson argued. Jonis. Jacobs and Renee Gerni of Murphy Anderson developed the briefs with Michael.

Art Rogers of the DC EJC is co-counsel in the case. His advice has been instrumental in developing and prosecuting the case.

– submitted by Mark Hanna


EEOC Grants Default Judgement

We received a decision from Administrative Judge Davi in Atlanta granting default judgment for our client. Although the agency conducted a belated investigation on her EEO claims, it failed to produce the complaint file after over 400 days from the filing of the formal complaint (the file is now allegedly "in the mail"). The agency also failed timely to respond to the AJ's orders to produce the complaint file and show cause for its delay.

– Johnathan P. Lloyd, Passman & Kaplan, P.C.


Jury Awards $300,000 in D.C. Whistleblower Case

On November 21, 2011, a District of Columbia jury found in favor of Christina Conyers Williams in her D.C. Whistleblower Protection Act claim against the District of Columbia. She was formerly employed at APRA, the Addiction Prevention and Recovery Administration in the District of Columbia Department of Health ("DOH"),

Plaintiff's supervisors attempted unsuccessfully to terminate her for an alleged violation of the D.C. Residency Preference Act.

In its answer to a question on the verdict form, the jury stated that plaintiff engaged in a "protected disclosure" about contract irregularities in testifying before the D.C. Council in 2006.

The jury awarded $300,000 in compensatory damages, based on ten different acts of retaliation. The jury found constructive discharge after the agency took away all of Plaintiff's duties and staff. The jury also found a hostile environment. Additionally, the court issued a "cat's paw" instruction.

Neither of the supervisors attended trial. The District read the deposition of one of them into the record. The Court barred the District from using the deposition of the other supervisor because the District failed to demonstrate the witness [a D.C. resident] was "unavailable" for the purposes of Rule 32.

I tried the case with Kristen Hughes who did a superb job.

– submitted by John F. Karl, Jr.


Motion to Dismiss Denied in Hostile Work Environment Case

On November 28, 2011, the U.S. District Court for D.C. (Judge Roberts) denied a motion to dismiss filed by DHS (Secret Service) in Teliska v. Napolitano, C.A. No. 09-2422 (D.D.C.). We alleged that the Secret Service created a hostile work environment for Kate Teliska for a long time after she complained of sexual harassment by a USSS supervisor. The Court agreed that hostile work environment can be reprisal; that the events did rise to the level of a valid hostile work environment claim, and that Kate was not untimely in complaining to an EEO counselor about the last of a series of hostile actions towards her, some of which occurred in the 45-day period before she went to an EEO counselor. Indeed, there was further reprisal after that!

The Court gave the following boilerplate on considering 12(b)(6) motions to dismiss civil rights claims (p. 7):

Plaintiffs filing employment discrimination claims are not subject to heightened pleading standards, see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (cited approvingly in Twombly, 550 U.S. at 569-570), and they are not required to "plead law or match facts to every element of a legal theory." Krieger v. Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000) (internal quotation and citation omitted). Historically, [t]he D.C. Circuit has long recognized the ease with which a plaintiff claiming employment discrimination can survive a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted. "Because racial discrimination in employment is a claim upon which relief can be granted, . . . 'I was turned down for a job because of my race' is all a complaint has to state to survive a motion to dismiss under [Rule] 12(b)(6)." Rouse v. Berry, 680 F. Supp. 2d 233, 235 (D.D.C. 2010) (quoting Potts v. Howard Univ. Hosp., 258 Fed. Appx. 346, 347 (D.C. Cir. 2007)). All that is required of a complaint is that it provide enough factual heft to show a plausible entitlement to relief, that is, that it contain "enough facts to [nudge] a claim to relief . . . across the line from conceivable to plausible[.]" Twombly, 550 U.S. at 570.

The court rejected the agency's exhaustion argument (p. 10):

DHS argues that Teliska failed to exhaust her administrative remedies for all of the discrete incidents that she cites to support her claim of hostile work environment that occurred before October 20, 2008, which is 45 days before the FAD suggests Teliska first sought counseling. (Def.'s Mem. in Supp. of Def.'s Mot. to Dismiss ("Def.'s Mem.") at 8-12.) However, a "hostile work environment claim . . . 'is composed of a series of separate acts that collectively constitute one unlawful employment practice.'" Smith-Thompson v. Dist. of Columbia, 657 F. Supp. 2d 123, 131 (D.D.C. 2009) (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002) and 42 U.S.C. § 2000e-5(e)(1)).

An interesting issue was whether Kate engaged in protected activity by reporting the initial sexual harassment to a former supervisor at the Department of Defense, a different agency, when he then passed on her complaint to buddies in USSS. The Court stated (n. 3):

Because DHS does not challenge that Teliska's reporting of McCarthy's behavior to McFarland was a protected activity (Def.'s Mem. at 22-23), this opinion will assume without deciding that such activity was indeed protected. See CSX Transp., Inc. v. Commercial Union Ins., Co., 82 F.3d 478, 482-83 (D.C. Cir. 1986); Felter v. Salazar, 679 F. Supp. 2d 1, 2 n.2 (D.D.C. 2010). Defendant argued lack of causal connection, citing the span of two years between the initial sexual harassment and complaint about it and the subject hostile work environment (HWE). However, we pointed out that during that period there were repeated acts of HWE and that Kate more recently complained of sexual harassment and reprisal, so the gap wasn't great at all. Probably because we alleged continuing HWE and repeated protected activities, the Court did not even address this defense.

Thanks to Rachelle Ware Young for helping with the opposition.

This is the third motion to dismiss we have defeated in DDC this year!

– submitted by Alan Banov


Zaid Settles Termination Case with Defense Intelligence Agency

I am pleased to announce that I negotiated a rare settlement with the Defense Intelligence Agency for my client John Dullahan, a former analyst who was unceremoniously terminated and had his security clearance revoked without any due process on the grounds of "national security" in 2009. The settlement, including the back pay, amounted to approximately $350,000. We filed suit in January 2010 in the U.S. District Court for the District of Columbia. The Complaint can be found here: .

Back in June, during the course of the litigation, Secretary of Defense Gates granted the appeal I had filed challenging the termination process. Unfortunately the security clearance issue remains alive but I was not likely to cure that problem through this lawsuit. But our battle is not yet over!

This story appeared in November 22, 2011's online Washington Post. The original front page Washington Post story which appeared a year ago can be found here:

– submitted by Mark S. Zaid


Case Summaries: District of Columbia Summaries


D.C. Circuit Remands Hostile Work Environment Claims

Rhonda N. Baird v. Joshua Gotbaum, Director, PBGC, No. 10-5421 (D.C. Cir. Dec. 13, 2011).

The D.C. Circuit today issued its decision in Baird v. Gotbaum, an appeal brought by an attorney employed at the Pension Benefit Guarantee Corporation. The appeal was decided in less than six weeks. The court affirmed Judge Huvelle's grant of summary judgment on the retaliation and discrimination claims, but reversed on the hostile work environment claims. Critically, the court rejected Judge Huvelle's conclusion that a plaintiff could not use discrete discriminatory or retaliatory acts to support a hostile work environment claim, even if those individual acts might not support a discrimination claim (the email below this one discusses this problem).

The decision is attached, and some excerpts follow:

WILLIAMS, Senior Circuit Judge:

Appellant Rhonda N. Baird, an African-American female attorney in the Office of the Chief Counsel of the Pension Benefit Guaranty Corporation ("PBGC"), filed suit in district court against the PBGC, claiming employment discrimination and retaliation in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e. The district court dismissed all her claims under FED. R. CIV. P. 12(b)(6). Baird v. Snowbarger, 744 F. Supp. 2d 279 (D.D.C. 2010). We discuss only those that she appeals. They fall into two categories: first, claims of race and gender discrimination (Counts III and V), and of unlawful retaliation (Count I), arising out of four discrete episodes; second, a claim of a retaliatory hostile work environment (Count II) arising not only out of the four discrete episodes but also out of various other events as to which she raised claims that were time-barred (apart from their potential role in her hostile environment claim). . . .

. . . We affirm the district court's dismissal of the claims that rely on the four discrete episodes standing alone but vacate and remand as to the claim of retaliatory hostile work environment. . . .

Retaliatory hostile work environment.

To prevail on a hostile work environment claim, "a plaintiff must show that his employer subjected him to 'discriminatory intimidation, ridicule, and insult' that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Baloch, 550 F.3d at 1201 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). We have previously found that "a hostile work environment can amount to retaliation under Title VII" if the conduct meets that standard. See Hussain v. Nicholson, 435 F.3d 359, 366 (D.C. Cir. 2006); see also Singletary v. District of Columbia, 351 F.3d 519, 526 (D.C. Cir. 2003). In evaluating Baird's retaliatory hostile work environment claim, the district court analyzed the four discrete episodes and concluded that Baird "[could not] satisfy [the Harris] test, because none of the acts that she alleges, whether considered alone or cumulatively, meets 'the demanding standards' for a hostile work environment claim." Baird, 744 F. Supp. 2d at 295 (quoting Sewell v. Chao, 532 F. Supp. 2d 126, 141-42 (D.D.C. 2008)).

Baird argues on appeal that the district court erred in excluding two categories of acts from her hostile work environment claim: (1) actions as to which she filed complaints with the Equal Employment Opportunity Commission but which were timebarred, and (2) the underlying conduct that the PBGC allegedly failed to investigate and remedy. We discuss each in turn. . . .

. . . . Baird is clearly correct that the district court erred to the extent that it categorically excluded her time-barred complaints in considering the hostile work environment claim, thus failing to employ the Morgan analysis, including, of course, a determination of which acts exhibit the relationship necessary to be considered "part of the same actionable hostile environment claim." (2) Underlying acts. Baird additionally argues that the district court erred in considering only the PBGC's alleged failures to investigate various Workplace Rules violations, and not the underlying, uninvestigated conduct itself (without conceding that the latter must have been retaliatory itself in order for her allegations to state a claim). See Baird, 744 F. Supp. 2d at 294. The district court did so because, in its view, Baird failed to "allege that this underlying behavior (as opposed to defendant's response to this behavior) was due to [her] race, sex, or activity protected under Title VII." Id. (citing Franklin v. Potter, 600 F. Supp. 2d 38, 76 (D.D.C. 2009); Na'im v. Clinton, 626 F. Supp. 2d 63, 73 (D.D.C. 2009)). . . . But allegations of retaliatory intent are plainly present at least as to some of the underlying acts. . . .

. . . . Baird also raises a closely related argument. The district court suggested that a "plaintiff cannot rely on the discrete acts upon which she bases her discrimination and retaliation claims to support her hostile work environment claim." Baird, 744 F. Supp. 2d at 295; see also id. at 295-96 ("Because plaintiff's allegedly hostile events are the very employment actions she claims are retaliatory, she cannot so easily bootstrap allegedly retaliatory incidents into a broader hostile work environment claim." (quoting Franklin, 600 F. Supp. 2d at 76, with alterations)).

The district court and the cases on which it relies are correct to the extent they simply mean that acts giving rise to a hostile work environment claim must collectively meet the independent requirements of that claim (i.e., be "sufficiently severe or pervasive . . . ," Harris, 510 U.S. at 21), and must be adequately connected to each other (i.e., "all acts which constitute the claim are part of the same unlawful employment practice," Morgan, 536 U.S. at 122), as opposed to being an array of unrelated discriminatory or retaliatory acts. But we find no authority for the idea that particular acts cannot as a matter of law simultaneously support different types of Title VII claims, and of course, plaintiffs are free to plead alternative theories of harm that might stem from the same allegedly harmful conduct. Thus, although a plaintiff may not combine discrete acts to form a hostile work environment claim without meeting the required hostile work environment standard, neither can a court dismiss a hostile work environment claim merely because it contains discrete acts that the plaintiff claims (correctly or incorrectly) are actionable on their own.

. . . . We therefore vacate the district court's dismissal of Baird's retaliatory hostile work environment claim and remand for a determination of which, if any, acts should have been included under Morgan (and of course whether those acts satisfy Morgan). We express no opinion on whether the PBGC's motion to dismiss is ultimately meritorious or whether further proceedings involving discovery, etc., are appropriate.

The decision is available online at :$file/10-5421-1347265.pdf.

– submitted by Alan R. Kabat


OEA Judge Abused His Discretion by Deciding Appeal Without Evidentiary Hearing

Dupree v. D.C. Office of Employee Appeals and DC Dept. of Corrections , No. 09-CV-937 (D.C. Dec. 22, 2011).

The D.C. Court of Appeals held that it was reversible error for the D.C. Office of Employee Appeals Administrative Judge to decide a District employee's appeal without holding an evidentiary hearing, since there were contested factual issues, not purely legal issues:

A. Evidentiary Hearing

First, appellant claims that the ALJ should have conducted an evidentiary hearing "to adduce testimony to support the argument that the agency's termination action was flawed and contrary to law." The ALJ declined to conduct an evidentiary hearing because he determined that this matter could be decided based on the documentary evidence in the record. The regulations governing OEA hearings give the ALJ discretion 5 to conduct an evidentiary hearing, or to decide on the record.6 See 6-B DCMR § 625.1 and -.2 ("If the [ALJ] grants a request for evidentiary hearing, or makes his or her own determination that one is necessary, the [ALJ] will so advise the parties[.]") (emphasis added). However, our review of the administrative record reveals that the documents submitted in response to appellant's contentions obfuscated rather than clarified the material issues, rendering it very difficult to decide these issue on the record. The ALJ was made aware of these material issues in the appellant's initial notice of appeal (wherein he outlined three of the four issues he now appeals) and in his Opposition to Agency's Motion to Dismiss & Motion for a Closed Evidentiary Hearing.

This is not a case where appellant never raised material issues, and therefore the ALJ was not aware of the need for an evidentiary hearing. Cf. Anjuwan v. District of Columbia Dep't of Pub. Works, 729 A.2d 883, 885 (D.C. 1998) (affirming OEA's denial of an evidentiary hearing where appellant made no mention of the issue of retaliation even after the ALJ ordered the parties to identify the issues to be resolved in the case).

Neither is this a case where only questions of law are concerned, since factual determinations remain at issue for at least two of the four issues noted above. . . . We therefore conclude that, under the circumstances of this case, the ALJ abused his discretion by failing to conduct an evidentiary hearing.

The case is available online at :

– submitted by Alan Kabat


Case Summaries: Maryland Summaries


Court of Appeals Grants Cert. In Friolo

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 11grants.html.


Court of Appeals Reverses Taylor in Part and Remands Case to Court of Special Appeals

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 :

– submitted by Alan R. Kabat


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


Unvested Shares Are Not Wages Under MWPCL

Hillary J. Kunda v. C.R. Bard, Inc., No. 09-1809 (4 th

Cir. Dec. 23, 2011).

GREGORY, Circuit Judge:

Hillary Kunda brought suit against her former employer, C.R. Bard, Inc. ("Bard"), alleging that Bard violated Maryland law when at the time of her termination, it failed to pay her for unvested shares earned through the company’s long-term profit sharing plan. She argued that despite a New Jersey choice-of-law provision in the plan agreement, Maryland law applies to the contract because the Maryland Wage Payment and Collection Law ("MWPCL") constitutes a fundamental Maryland public policy.

The district court granted Bard’s motion to dismiss for failure to state a claim on which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). The court found that New Jersey law applies to the contract because the MWPCL is not a fundamental public policy of Maryland and that the unvested shares are not wages under New Jersey law. Furthermore, the court held that even if Maryland law applied, the unvested shares are not wages under the MWPCL and thus were never owed to Kunda. As explained below, we affirm the district court’s decision.



We cannot hold, as Kunda advocates, that her unvested Premium Units are converted into wages in the limited situation where an employee is terminated without cause. Thus, we affirm the district court’s grant of Bard’s motion to dismiss.

– submitted by Tom Gagliardo


Case Summaries: U.S. Supreme Court Summaries


Supreme Court Splits Claims to be Litigated in Court and Claims to Be Arbitrated

KPMG LLP v. Robert Cocchi et al., No. 10-1521 (U.S. Nov. 7, 2011).

The Supreme Court, in a short opinion, held that if some claims are subject to an arbitration agreement, but others are not, then the plaintiff must proceed with arbitration on the former claims, and in court on the latter claims, even if the result is piecemeal litigation.

In a securities dispute arising from investments that were placed with Bernard Madoff, the Supreme Court finds that lower court erred in holding that since some claims were not covered by the arbitration agreement, all the claims had to be heard in court. Instead, the claims had to be divided up, each into the appropriate forum.

Some excerpts follow:


Agreements to arbitrate that fall within the scope and coverage of the Federal Arbitration Act (Act), 9 U. S. C. §1 et seq., must be enforced in state and federal courts. State courts, then, "have a prominent role to play as enforcers of agreements to arbitrate." Vaden v. Discover Bank, 556 U. S. 49, 59 (2009).

The Act has been interpreted to require that if a dispute presents multiple claims, some arbitrable and some not, the former must be sent to arbitration even if this will lead to piecemeal litigation. See Dean Witter Reynolds Inc. v. Byrd, 470 U. S. 213, 217 (1985). From this it folnlows that state and federal courts must examine with care the complaints seeking to invoke their jurisdiction in order to separate arbitrable from nonarbitrable claims. A court may not issue a blanket refusal to compel arbitration merely on the grounds that some of the claims could be resolved by the court without arbitration. See ibid.

In this case the Fourth District Court of Appeal of the State of Florida upheld a trial court's refusal to compel arbitration of respondents' claims after determining that two of the four claims in a complaint were nonarbitrable. Though the matter is not altogether free from doubt, a fair reading of the opinion indicates a likelihood that the Court of Appeal failed to determine whether the other two claims in the complaint were arbitrable. For this reason, the judgment of the Court of Appeal is vacated, and the case remanded for further proceedings. . . .

. . . . What is at issue is the Court of Appeal's apparent refusal to compel arbitration on any of the four claims based solely on a finding that two of them, the claim of negligent misrepresentation and the alleged violation of the FDUTPA, were nonarbitrable.

In Dean Witter, the Court noted that the Act "provides that written agreements to arbitrate controversies arising out of an existing contract 'shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.' " 470 U. S., at 218 (quoting 9 U. S. C. §2). The Court found that by its terms, "the Act leaves no place for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed." 470 U. S., at 218 (emphasis in original). Thus, when a complaint contains both arbitrable and nonarbitrable claims, the Act requires courts to "compel arbitration of pendent arbitrable claims when one of the parties files a motion to compel, even where the result would be the possibly inefficient maintenance of separate proceedings in different forums." Id., at 217. To implement this holding, courts must examine a complaint with care to assess whether any individual claim must be arbitrated. The failure to do so is subject to immediate review. See Southland Corp. v. Keating, 465 U. S. 1, 6-7 (1984).

The Court of Appeal listed all four claims, found that two were direct, and then refused to compel arbitration on the complaint as a whole because the arbitral agreement "would not apply to the direct claims." 51 So. 3d, at 1167. By not addressing the other two claims in the complaint, the Court of Appeal failed to give effect to the plain meanning of the Act and to the holding of Dean Witter. The petition for certiorari is granted. The judgment of the Court of Appeal is vacated, and the case is remanded. . . .

– submitted by Alan R. Kabat


Case Summaries: Around the Nation


Court Issues Sanctions for Failure to Preserve Evidence and Failure to Prepare 30(b)(6) Deponent

Naaco Materials Handling Group, Inc. v. Lilly Co., No. 11-2415 AV, 2011 WL 5986649 (W.D. Tenn. Nov. 16, 2011).

In this case, the court found that defendant "failed to take reasonable steps to preserve, search for, and collect potentially relevant information . . . after its duty to preserve evidence was triggered by being served with the complaint" which may have resulted in the destruction of relevant evidence. Further, defendant failed to present an adequately prepared and knowledgeable 30(b)(6) deponent. Accordingly, sanctions were imposed, including, among other things, additional discovery, additional forensic imaging at defendant's expense, and monetary sanctions.

The decision is available online at:

– submitted by Joel Bennett


Decision on Sex Stereotyping Under Sec. 1983

Glenn v. Brumby, No. 10-14833, 10-15015 (11 th Cir. Dec. 6, 2011).

In a significant opinion, the Eleventh Circuit upholds a plaintiff's Section 1983 claims based upon the Equal Protection Clause against a state government official for firing her based on sexual stereotypes related to gender identity disorder and gender transition.

The published opinion is by Judge Barkett and was joined by Judges Pryor and Kravitch. The attached opinion certainly is significant for transgender issues, but also because of its broad language on sex stereotyping:

The question here is whether discriminating against someone on the basis of his or her gender nonconformity constitutes sex-based discrimination under the Equal Protection Clause. For the reasons discussed below, we hold that it does. (p.7) All persons, whether transgender or not, are protected from discrimination on the basis of gender stereotype. (p.12).

– submitted by John R. Ates


Third Circuit Upholds Disparate Impact Finding

NAACP v. North Hudson Regional Fire & Rescue, Nos. 10-3965, 10-15015 (3 rd Cir. Dec. 12, 2011).

I am pleased to report that the Third Circuit issued a ruling on December 12, 2011 in our case, NAACP v. N. Hudson, affirming the grant of summary judgment in our favor by the U.S. District Court for the District of New Jersey, finding that the residency requirement for firefighter applicants were invalid because the requirement had a disparate impact on African Americans. The court found that both parties' expert reports supported a finding of disparate impact. The court also ruled that Ricci v. Destefano did not provide North Hudson a defense to disparate impact liability.

– submitted by Yuval Rubinstein


President's Club Members

Leslie Alderman
Alderman, Devorsetz & Hora, PLLC

Elliott Andalman
Andalman & Flynn, PC

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

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

Adam Carter
The Employment Law Group, P.C.

David Cashdan
Cashdan & Kane

John Clifford
Clifford & Garde, LLP

Linda Correia
Webster, Fredrickson, Correia & Puth, PLLC

William Farley
Law Office of William P. Farley, P.C.

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 Katz
Andalman & Flynn, PC

Phillip Kete
Law Office of Phillip R Kete

Stephen Lebau
Lebau & Neuworth, LLC

Alan Lescht
Alan Lescht & Associates, PC

Omar Melehy
Melehy & Associates, LLC

Woodley Osborne
Mehri & Skalet, PLLC

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

Jessica Parks
Kator, Parks & Weiser PLLC

Patricia Payne
Payne & Associates

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

Meena Rajan
The Law Office of Denise M. Clark

Julia Roumm
The Law Offices of Denise M. Clark

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Rubin Employment Law Firm, PC

David Scher
The Employment Law Group, P.C.

Nicholas Woodfield
The Employment Law Group, PC

Jeremy Wright
Kator, Parks & Weiser PLLC


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Marshall & Banks, LLP

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Bernabei & Wachtel, PLLC

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Berry & Berry PLLC

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Mehri & Skalet, PLLC

Dennis Chong
Michael J. Hoare, PC

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

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Clinton & Peed, PLLC

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

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Bernabei & Wachtel, PLLC

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Kalijarvi, Chuzi & Newman, PC

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The Gagliardo Law Firm

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Gebhardt & Associates, LLP

Leizer Goldsmith
The Goldsmith Law Firm, LLC

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

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Michael J. Hoare, PC

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Washington Lawyers' Committee for Civil Rights and Urban Affairs

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Mahoney & Jeffrey, PLLC, The Federal Employee's Law Firm

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Bernabei & Wachtel, PLLC

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Kahn & Scharman, LLC

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Kalijarvi, Chuzi & Newman, P.C.

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Katz, Marshall & Banks, LLP

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Beins, Axelrod, P.C.

James Klimaski
Klimaski & Associates, PC

Daniel Kohrman
AARP Foundation Litigation

Andrea Loveless
Bernabei & Wachtel, PLLC

Kathleen Mahoney
Mahoney & Jeffrey, PLLC, The Federal Employee’s Law Firm

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Katz, Marshall & Banks, LLP

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Swick & Shapiro, P.C.

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Law Offices of Patricia E. Ricks

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David E. Schreiber, P.C.

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Searcy Law Offices, LLC

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

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Beth S. Slavet, PC

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Temple Law Offices

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Washington Lawyers Committee

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Bernabei & Wachtel, PLLC

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Bernabei & Wachtel PLLC


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Alan Banov and Associates
Alden Law Group, PLLC
Ates Law Firm, P.C.
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Berry & Berry, PLLC
Beth S. Slavet, P.C.
D'Souza Law Office, LLC
Gary M. Gilbert & Associates, P.C.
Gebhardt & Associates, LLP
Gerardine Delambo, Attorney at Law
Heller, Huron, Chertkof, Lerner, Simon & Salzman,
Henrichsen Siegel, P.L.L.C.
Kator, Parks & Weiser, PLLC
Kestell & Associates
Klimaski & Associates, P.C.
Law Office of Jonathan L. Gould
Law Office of Josh F. Bowers, P.C.
Law Office of Mary Ann Kelly
Law Office of Richard T. Seymour, P.L.L.C.
Law Office of Steven J. Silverberg
Law Office of Thomas J. Gagliardo
Law Offices of Larry J. Stein, L.L.C.
Lebau & Neuworth, LLC
Michael J. Hoare, PC
Passman and Kaplan, P.C.
The Employment Law Group
The Law Office of Denise M. Clark, PLLC
The Law Offices of Joel P. Bennett, P.C.
The Spencer Firm, LLC