Gross is Not Applicable to Mixed Motive Cases under Amended Americans with Disability Act

Robert Southerland v. Dep’t of Defense, Docket Nos. SF-0752-09-0864-R-1, SF-0752-10-0111-R-1 (MSPB Oct. 5, 2011)

In August 2011, the Merit Systems Protection Board posted its decision in Southerland v. Dep’t of Defense adopting the Gross v. FBL Financial Services mixedmotive standard in application to a post-ADAAA disability discrimination case.

In a reversal of its August 2011 decision, the Board " VACATE[d its] August 25, 2011 Opinion and Order in its entirety, and SUBSTITUTE[d]" the new decision.


Indefinite Suspension of Employee During Investigation is Illegal

Greene v. Dep’t of Homeland Security, Docket No. AT-0752-10-1029-I-1 (MSPB Sept. 9, 2011).


Maryland’s Court of Special Appeals Reduces Award of Attorney’s Fees and Costs

Friolo v. Frankel, 2011 Md. App. LEXIS 123 (Md. Ct. Spec. App. Sept. 7, 2011) (See Leizer Goldsmith’s summary above).


Maryland’s Highest Court Clarifies the Ministerial Exception

Prince of Peace Lutheran Church v. Linklater, 2011 Md. LEXIS 574 (Md. Sept. 21, 2011).


Maryland’s Court of Appeals Reverses Denial of Whistleblower Complaint

Lawson v. Bowie State Univ., 2011 Md. LEXIS 515 (Md. Aug. 16, 2011).


“Sham Affidavit” Objection is Rejected

Johnson v. Shinseki, Dep’t of Veteran’s Affairs, No.08-1103 (JDB) (D.D.C. Sept. 19, 2011).

Sham affidavit objection to declaration in opposition to summary judgment will be denied when declaration clarifies prior ambiguous deposition testimony or prior affidavit. Summary judgment denied in hostile work environment case.

The decision is available on-lineat :

– submitted by Joel P. Bennett


Court Rules on Privilege Issues

Segar et al. v. Holder et al., No. 77-81 (EGS/JMF) (D.D.C. Sept. 26, 2011).

In the Segar class action against the Department of Justice, pending since 1977, Magistrate Judge Facciola holds:

1. deliberative process privilege may not be used by a federal agency where intent is at issue; and

2. attorney-client privilege objection to discovery is waived if not raised in response within 30 days of service of discovery.

The opinion is available on-line at:

– submitted by Joel P. Bennett


Summary Judgment Denied on Retaliation Claim

Tarick Ali, by his personal representative, Monica Ali v. District of Columbia, No. 08-01950 (HHK) (D.D.C. Aug. 31, 2011)


Trial Court Properly Waited to Rule on Fee Petition

Purcell v. Thomas, Nos. 09-CV-501 & 10-CV-485 (D.C. Sept. 29, 2011).

In Purcell v. Thomas, Nos. 09-CV-501 & 10-CV-485 (D.C. Sept. 29, 2011), the D.C. Court of Appeals held that the trial court acted properly in waiting until after an appeal on the merits (in which the first appeal affirmed the judgment in employee's favor on her DCHRA claims) to decide the employee's long-pending motion for attorney's fees and costs.


Decision Discusses Standard of Proof for Wrongful Discharge in Violation of Public Policy Claim and Individual Liability

Myers v. Alutiiq Intl. Solutions LLC, et al., No. 10- CV-2041 (ABJ), 2011 WL 4018230 (D.D.C. Sept. 12, 2011).

Judge Amy Jackson of the U.S. District Court recently issued a good decision that addresses two somewhat unsettled issues relating to the commonlaw wrongful termination in violation of public policy claim.