Friday, July 10, 2015

A Sham or Just Self-Serving? Either Way, Affidavits Are Admissible

Defense counsel, during the course of taking plaintiff’s deposition in an employment case, extracts damning admissions.  The defense, relying on those admissions.  In opposition, Plaintiff submits his/her own affidavit addressing and attempting to moderate, qualify, or deny the damning admissions.  Defense asserts that Plaintiff’s affidavit is a so-called “sham” affidavit.  Plaintiff’s counsel argues that it merely “clarifies” the plaintiff’s deposition testimony and should thus be considered.

Sound familiar?

Or, Defendant moves for summary judgment, and Plaintiff files an affidavit attempting to establish disputed material facts.  Defendant says that plaintiff’s affidavit is self-serving.  Plaintiff asserts that all testimony by parties is self-serving, and that her/his self-serving affidavit is no different, and should be considered.

Sound familiar?

How do the courts approach these issues? 

1.      Sham Affidavits

The first example above demonstrates what is sometimes called a “sham” affidavit.  The Fourth Circuit, in Barwick v. Celotex Corp., described the “sham affidavit” rule as follows: [a] genuine issue of material fact is not created where the only issue of fact is to determine which of the two conflicting versions of plaintiff’s testimony is correct.”  736 F.2d 946, 960 (4th Cir. 1984).  Rather than submit such an issue to the factfinder for determination, the Fourth Circuit held that it was appropriate to strike the affidavit.  Id.  Similarly, in Perma Research & Dev. Co. v. The Singer Co., the Second Circuit held that a party cannot create “sham issues of fact” to defeat summary judgment by contradicting earlier deposition testimony in a subsequent affidavit.  410 F.2d 572, 578 (1969); see also Radobenko v. Automated Equip. Co., 520 F.2d 540 (9th Cir. 1975) (“sham issues…should not subject the defendants to the burden of a trial”). 

More recently, however, courts have limited the “sham affidavit” rule to situations where an affidavit seeks to flatly contradict earlier deposition testimony.  In Strickland v. Norfolk S. Ry. Co., the Eleventh Circuit held that it is only appropriate to disregard an affidavit as a sham when “there [is] no way” that conflicting statements could be read together but that “[w]here a fact-finder is required to weigh a deponent’s credibility, summary judgment is simply improper.”  692 F.3d 1151, 1161-62 (11th Cir. 2012).  Similarly, in Kennett-Murray Corp. v. Bone, the Fifth Circuit explained that “a district court must consider all the evidence before it and cannot disregard a party’s affidavit merely because it conflicts to some degree with an earlier deposition.”  622 F.2d 887, 893-94 (5th Cir. 1980).

In other words, counsel trying to explain her client’s deposition testimony should be careful not to outright contradict that testimony, at the risk of having the affidavit labeled a “sham”, and vulnerable to a motion to strike.  Absent such a flat contradiction, however, many courts are inclined to permit any issues of credibility proceed to the factfinder.

2.      Self-Serving Affidavits

More commonly defense counsel will object to a plaintiff’s affidavit as “self-serving” in an attempt to persuade the trial court to exclude it from consideration on summary judgment.  The appellate courts have soundly rejected this approach with increasing finality.  The Seventh Circuit has been particularly vocal on this issue.  For example, in Widmar v. Sun Chemicals Corp., the Seventh Circuit reprimanded recalcitrant lower courts, stating “[w]e remind district courts of our attempts to rid our circuit’s opinions of language critical of the ‘self-serving’ affidavit.”  772 F.3d 457 (7th Cir. 2014).  The court went on to state:

We hope this discussion lays to rest the misconception that evidence presented in a 'self-serving' affidavit is never sufficient to thwart a summary judgment motion. Provided that the evidence meets the usual requirements for evidence presented on summary judgment  including the requirements that it be based on personal knowledge and that it set forth specific facts showing that there is a genuine issue for trial  a self-serving affidavit is an acceptable method for a non-moving party to present evidence of disputed material facts."
Id. at 460, n.1.  The prior year the Seventh Circuit, in Hill v. Tangherlini, expressly overruled some fifteen of its precedents “to the extent that they suggest a plaintiff may not rely on ‘self-serving’ evidence to create a material factual dispute[.]”  724 F.3d 965, 967 n.1 (7th Cir. 2013).  In recent years, the Seventh Circuit has repeated its rule regarding “sham” affidavits on many occasions.  See Berry v. Chicago Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010), quoted in Navejar v. Iyiola, 718 F.3d 692, 69798 (7th Cir. 2013) (reversing summary judgment based on error discounting partys affidavit as self-serving); accord, Darchak v. City of Chicago Bd. of Educ., 580 F.3d 622, 63132 (7th Cir. 2009); Kaba v. Stepp, 458 F.3d 678, 681 (7th Cir. 2006). 

Other circuits have reached a similar conclusion to that of the Seventh Circuit.  See Kenney v. Swift Transp., Inc., 347 F.3d 1041, 1046 (8th Cir. 2003) (Holding that “[Plaintiff’s] testimony [at deposition] is sufficient for a jury to find that [Defendant’s] proffered nondiscriminatory reason for not hiring him is pretextual.”); U.S. One Parcel of Real Property, 904 F.2d 487, 492 (9th Cir. 1990) (self-serving declaration can be used to survive summary judgment if it is not conclusory); Lupyan v. Corinthian Colleges Inc., 761 F.3d 314, 32021 (3d Cir. 2014).  In Price v. Time Inc., the Eleventh Circuit succinctly stated that: “Courts routinely and properly deny summary judgment on the basis of a party's sworn testimony even though it is self-serving[.]”  416 F.3d 1327, 45 (11th Cir. 2005).  In Feliciana v. City of Miami Beach, a criminal case, the Court elaborated that:

[Defendant’s] sworn statements are no more conclusory, self-serving, or unsubstantiated by objective evidence than the [police] officers’ assertions…as a general principle, a plaintiff's testimony cannot be discounted on summary judgment unless it is blatantly contradicted by the record, blatantly inconsistent, or incredible as a matter of law, meaning that it relates to facts that could not have possible been observed or events that are contrary to the laws of nature.
707 F.3d 1244, 1252-53 (11th Cir. 2013). 

Despite the trend towards recognition that “self-serving” affidavits are perfectly admissible, and indeed capable of defeating a motion for summary judgment evening standing alone, many courts continue, without analysis, to strike such affidavits from the record. Hopefully, armed with the arguments and cases herein, practitioners will have better luck in the future in those courts.

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Sunday, June 14, 2015

Derivative Sovereign Immunity: Next Supreme Court Term’s Bombshell?

On May 18, 2015, the Supreme Court granted certiorari in Campbell-Ewald Co. v. Gomez, 14-857, 191 L. Ed. 2d 977 (2015).  This case, to be decided next term, has been much ballyhooed because of the first two issues which it presents, which are:
  1. Whether a case becomes moot, and thus beyond the judicial power of Article III, when the plaintiff receives an offer of complete relief on his claim?
  2. Whether the answer to the first question is any different when the plaintiff has asserted a class claim under Federal Rule of Civil Procedure 23, but receives an offer of complete relief before any class is certified?

As readers will recall, the Court, in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013), did not resolve these very important issues for not only wage and hour litigation, but all class action litigation. 

Lost in the hype of this case is the third issue which the Court took, which is:
  1. Whether the doctrine of derivative sovereign immunity, recognized in Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18 (1940) for government contractors is restricted to claims arising out of property damage caused by public works projects? 

The Yearsley derivative sovereign immunity doctrine has been little-used since 1940.  And, it appears, never in employment cases.  But, could the Court’s decision next term expand the doctrine such that it might have application in employment cases?  Obviously, we shall see. 
Here is some quick history.  Campbell-Ewald is a Telephone Consumer Protection Act case.  See 47 U.S.C § 227 et seq.  The Federal Courts are swamped with these cases see, e.g. James G. Snell, Carlos P. Mino, “Telephone Consumer Protection Act Cases Are on the Rise”, Bloomberg BNA (Feb. 14, 2013) (available at:; David N. Anthony, et al., “Flood of TCPA Claims Expected in Federal Courts” Troutman Sanders (Jan. 24, 2012) (available at: 

In Campbell-Ewald, that company (hereinafter C-E) issued a request for proposal to execute a wireless advertising program for its client, the United States Navy’s recruitment arm. C-E’s goal was to recruit some 38,000 sailors.  MindMatics, LLC, responded to C-E’s proposal request.  Thereafter, C-E made a PowerPoint presentation to the Navy Recruiting Command (NRC), which included a text message proposal from MindMatics to deliver a “Navy-branded SMS text direct mobile ‘push’ program to the cell phones of 150,000 Adults aged 18-24 from an opt-in list of over 3 million.”  2013 U.S. Dist. LEXIS 34346 at *6.   C-E was required to obtain NRC’s approval to proceed.  The Navy approved the text message proposal, and MindMatics sent the text messages to potential Naval recruits.  

Plaintiff Gomez received a text message, and filed a putative nationwide class action under the TCPA against C-E.  The TCPA provides for small statutory damages - $500 per violation, which can be trebled for willful and knowing violations – for unauthorized messages.  47 U.S.C. § 227(b)(3).  Gomez sought damages for the alleged TCPA violation on an individual and class-wide basis, seeking hundreds of millions of dollars on behalf of the class.  In the district court, C-E argued that Gomez’s claim failed as a matter of law because, insofar as the Navy is immune from liability under the TCPA, C-E is also immune as a result of derivative sovereign immunity.  Gomez v. Campbell-Ewald Co., 2013 U.S. Dist. LEXIS 34346, 2013 WL 655237 (C.D. Cal. Feb. 22, 2013). In short, because the Navy cannot be sued, C-E cannot be sued. 

Relying on Yearsley, C-E argued that, inasmuch as it acted on behalf of the Navy, it is immune under the Yearsley doctrine.  In Yearsley, the Supreme Court held that if “[t]he authority to carry out the project was validly conferred…there is no liability on the part of the contractor for executing [the Government’s] will.”  Yearsley, 309 U.S. at 20-21.  An agent is liable under Yearsley only if “he exceeded his authority, or that [the authority] was not validly conferred.”  Id. at 21; see also Butters v. Vance Int’l, Inc., 225 F.3d 462, 466 (4th Cir. 2000) (it is “well-settled law that contractors and common-law agents acting within the scope of their employment for the United States have derivative sovereign immunity”). 

The lower court granted C-E’s motion for summary judgment based on the Yearsley argument, holding C-E, acting as a Navy contractor, is immune from liability under the doctrine.  On appeal, the Ninth Circuit reversed, 768 F.3d 871 (9th Cir. 2014).  In an opinion written by Judge Benavides, a senior Fifth Circuit Judge sitting by designation, the Court held that Yearsley is not applicable to the facts of this case, holding that Yearsley established a narrow rule regarding claims arising out of property damage caused by public works projects.  The Ninth Circuit distinguished Campbell-Ewald’s facts from Yearsley on the ground that in Yearsley, the contractor’s work was in accordance with an express congressional directive that resulted in an unconstitutional taking of property and that “the Government has impliedly promised to compensate the plaintiffs, and has afforded a remedy for its recovery by a suit in the Court of Claims.”  309 U.S. at 21-22. 

The Ninth Circuit noted that in the seventy-year history of the Yearsley doctrine, it had apparently never been invoked to preclude litigation of a dispute like the one before the Court.  Indeed, the Court noted that the defense had rarely been allowed in the Ninth Circuit, and only in the context of property damage resulting from public works projects.

The petition for certiorari, which was granted, argues that the Ninth Circuit’s decision fundamentally misconstrues and unduly limits the doctrine of Sovereign Immunity.  Petitioner argued that Yearsley establishes a general rule that government contractors are immune from liability for performing duties which are within the scope of their lawfully delegated authority.  In short, what matters is whether the contractor is acting within the scope of validly conferred authority in undertaking the project. 

So, the Supreme Court will now presumably decide how narrow or expansive the derivative sovereign immunity doctrine may be.  If the Court adopts the district court’s expansive interpretation, one can contemplate circumstances in the employment arena where federal, and possibly also state, contractors in employment cases can assert the defense.  Some examples which spring to mind include disparate impact claims based on an employment test administered by a contractor at the behest of the Government; claims arising from the payment by a contractor of wages pursuant to the Government’s command which run afoul of federal wage and hour laws; and discrimination claims arising from hiring quotas arguably imposed by the government.  The federal contractor bar will be watching this case and ready to advise their clients on how, in the proposal process and in the issuance of task orders, contractors might create a paper trail of government approval and hence, depending on the outcome of C-E, immunity for their contractor clients.

By about this time next year, we should have answers to some of these questions.

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Friday, May 15, 2015

Fourth Circuit Overturns Decade of Precedent in Blockbuster En Banc Hostile Work Environment Decision

On May 7, 2015, the Fourth Circuit issued an en banc decision in Boyer-Liberto v. Fontainebleau Corp., No. 13-1473, 2015 U.S. App. LEXIS 7557 (4th Cir. May 7, 2015), the latest decision in a battle which has enveloped the Fourth Circuit and the District of Maryland for over ten years.  The story is long and complex, and may not yet be over, as, presumably, Fontainebleau Corp. will file a petition for certiorari with the Supreme Court. 

Here are the basic facts in Boyer-Liberto:
  1. The plaintiff, Ms. Reya C. Boyer-Liberto, an African-American woman, worked as a cocktail waitress at the Clarion Resort Fontainebleau Hotel in Ocean City, Maryland.
  2. Plaintiff alleged that within a single twenty-four hour period she was called a “porch monkey” twice, and threatened with termination.
  3. Although it is unclear whether the harasser, Ms. Clubb, had supervisory authority, she did have the “ear” of Defendant’s owner, and indicated that she could cause him to terminate Plaintiff.
  4. When she reported these incidents of racial harassment, she was terminated by the owner of Defendant.

In the United States District Court for the District of Maryland, Judge James K. Bredar granted Defendant’s motion for summary judgment on all counts.  In so doing, Judge Bredar relied heavily on the Fourth Circuit’s opinion in Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006).  As to Plaintiff’s claim of hostile work environment discrimination, Judge Bredar explained that: “the two incidents of use of a racial epithet…simply do not comprise either pervasive or severe conduct, however unacceptable they are[,]” refusing to “engage in speculation about what might have occurred if [Plaintiff] had had a substantially longer tenure [at Defendant].”  See Boyer-Liberto v. Fontainebleau Corp., No. JKB-12-212, 2013 U.S. Dist. LEXIS 49398, 2013 WL 1413031 at *11 (D. Md. April 5, 2013).  Similarly, Judge Bredar dismissed Plaintiff’s claim for retaliation, reasoning that “no objectively reasonable person could have believed that [Plaintiff’s work environment] was, or was soon going to be, infected by severe or pervasive racist, threatening, or humiliating harassment” and that, as a result, “[Plaintiff] lacked an objectively reasonable belief that she was actually being subjected to unlawful harassment…[and that] the absence of an objectively reasonable belief…defeats the first element of the prima facie case[.]”  Id. at *15 (internal quotations omitted). 

On appeal, a panel of the Fourth Circuit affirmed Judge Bredar’s decision, with Chief Judge Traxler dissenting in part.  The panel’s opinion was authored by Judge Niemeyer, the author of the opinion in Jordan v. Alternative Resources Corp., on which Judge Bredar heavily relied, but both Judge Shedd and Chief Judge Traxler wrote separately.  In his opinion, Judge Niemeyer held that

Viewing the facts of the summary judgment record, we conclude that Liberto has not presented evidence such that a reasonable juror could find that her workplace was permeated with discriminatory intimidation, ridicule, and insult that [was] sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment. Particularly important is the fact that Liberto points to only two conversations, on consecutive days, in which Clubb called her a "porch monkey," both of which arose from a single incident at the Clarion. Our cases have made it clear that [u]nlike other, more direct and discrete unlawful employment practices, hostile work environments generally result only after an accumulation of discrete instances of harassment.
Finally, the analysis of the hostile work environment claim that we conducted earlier in this opinion tends to confirm the absence of an objectively reasonable belief that a violation had occurred. In the circumstances of this case, if no objectively reasonable juror could have found the presence of a hostile work environment, as we today hold, it stands to reason that Liberto also could not have had an objectively reasonable belief that a hostile work environment existed.
Just as in Jordan, we conclude here that while in the abstract, continued repetition of racial comments of the kind [Clubb] made might have led to a hostile work environment, no allegation in the [record] suggests that a plan was in motion to create such an environment, let alone that such an environment was even likely to occur.
Boyer-Liberto v. Fontainebleau Corp., 752 F.3d 350, 356-360 (4th Cir. 2014).  While concurring in the affirmance, Judge Shedd wrote separately to state the following: “under our precedent, as a matter of law the facts of this case do not demonstrate a hostile work environment.  Based on this Court’s decision in Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006), I agree…that summary judgment should also be affirmed on the retaliation claim.”  Id. at 360-61 (Shedd, J., concurring).

Although Chief Judge Traxler concurred that Plaintiff had “not demonstrated a hostile environment”, he dissented as to the Court’s affirmance of Judge Bredar’s grant of summary judgment on Plaintiff’s retaliation claims, stating:

I agree with the majority that, under our existing precedent, particularly Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006), the conduct Liberto complained of as a matter of law did not rise to the level of actionable harassment. However, I part ways with the majority on the question of whether that determination necessarily resolves the retaliation claim as well. 
In determining whether that standard is met here, I believe it is important to recognize that even "[a] single, sufficiently severe incident . . . may suffice to create a hostile work environment." Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 579, 404 U.S. App. D.C. 291 (D.C. Cir. 2013) (Kavanaugh, J., concurring) (concluding that supervisor's statement to African-American employee, "Get out of my office nigger," was sufficient by itself to constitute an actionable hostile work environment).
 Here, in contrast [to the facts of Jordan], Clubb called Liberto herself a porch monkey and did so in the context of angrily threatening to speak with her friend, the hotel owner, to get Liberto fired. Also in contrast to Jordan, Clubb's use of the epithet was not a single, isolated occurrence, as she called Liberto the very same name in the very same threatening context the very next day. Particularly in light of these significant differences, I believe that Liberto could have reasonably believed that Clubb's conduct was actionable.
I share in the sentiment Judge King expressed so well in his dissent in Jordan…[and] [l]ike Judge King, I cannot accept that an employee in circumstances like these can be forced to choose between her job and her dignity. See id. at 356. For these reasons, I respectfully dissent from the affirmance of the summary judgment against Liberto on her retaliation claims.
Boyer-Liberto v. Fontainebleau Corp., 752 F.3d 350, 356-360 (4th Cir. 2014) (Traxler, C.J., concurring in part, dissenting in part).

Thereafter, a petition for rehearing en banc was filed.  The petition was granted on July 1, 2014, at which time the panel opinion was vacated.  See Boyer-Liberto v. Fontainebleau Corp., No. 13-1473, 2014 U.S. App. LEXIS 12711 (4th Cir. July 1, 2014).  The full court heard argument on the case on September 18, 2014 (Available at:  On May 7, 2015, Judge King, writing for twelve colleagues, reversed the panel opinion, and reversed Jordan insofar as Boyer-Liberto is inconsistent with JordanSee Boyer-Liberto v. Fontainebleau Corp., No. 13-1473, 2015 U.S. App. LEXIS 7557 (4th Cir. May 7, 2015).

Judge King’s opinion contains three principal holdings: 1) “an isolated incident of harassment, if extremely serious, can create a hostile work environment”; 2)  “an employee is protected from retaliation when she reports an isolated incident of harassment that is physically threatening or humiliating, even if a hostile work environment is not engendered by that incident alone”; and 3) to the extent today's decision is in conflict with Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006), Jordan is hereby overruled.”  See Id. at *3.  In holding that Plaintiff was entitled to take the issue of whether a hostile work environment existed to the jury, Judge King reasoned that:

[A]n isolated incident of harassment can amount to discriminatory changes in the terms and conditions of employment, if that incident is extremely serious.
 In measuring the severity of harassing conduct, the status of the harasser may be a significant factor — e.g., a supervisor's use of [a racial epithet] impacts the work environment far more severely than use by co-equals. Simply put, a supervisor's power and authority invests his or her harassing conduct with a particular threatening character.
To resolve [the issue of whether Clubb’s conduct was sufficiently severe to create a hostile work environment] we need not — and, in any event, on this record cannot — determine whether Clubb was actually Liberto’s supervisor or simply her co-worker, a fact relevant to the separate question of the Clarion's vicarious liability. Nevertheless, we are obliged to consider how Clubb portrayed her authority and what Liberto thus reasonably believed Clubb's power to be. 
Properly considering that evidence, we must accept that Liberto believed — and reasonably so — that Clubb could make a discharge decision or recommendation that would be rubber-stamped by Dr. Berger. Thus, in gauging the severity of Clubb's conduct, we deem Clubb to have been Liberto’s supervisor…[and] [t]hat perspective is especially appropriate here, where Clubb employed racial epithets to cap explicit, angry threats that she was on the verge of utilizing her supervisory powers to terminate Liberto’s employment.
[A] reasonable jury could find that Clubb's two uses of the "porch monkey" epithet — whether viewed as a single incident or as a pair of discrete instances of harassment — were severe enough to engender a hostile work environment.
In thus vacating the summary judgment award on Liberto’s hostile work environment claims, we identify this as the type of case contemplated in Faragher where the harassment,  though perhaps "isolated," can properly be deemed to be "extremely serious." We also acknowledge that this is a first for our Court. We reject, however, any notion that our prior decisions, including Jordan v. Alternative Resources Corp., were meant to require more than a single incident of harassment in every viable hostile work environment case.
Id. at *28-*37 (internal citations and quotations omitted).  Similarly, Judge King held that Plaintiff presented a triable issue of fact as to whether she suffered illegal retaliation, explaining:

[T]he Jordan standard "imagines a fanciful world where bigots announce their intentions to repeatedly belittle racial minorities at the outset, and it ignores the possibility that a hostile work environment could evolve without some specific intention to alter the working conditions of African-Americans through racial harassment." See Jordan, 458 F.3d at 353-54 (King, J., dissenting). Tellingly, intent to create a hostile work environment is not an element of a hostile environment claim.
[R]ather than encourage the early reporting vital to achieving Title VII's goal of avoiding harm, the Jordan standard deters harassment victims from speaking up by depriving them of their statutory entitlement to protection from retaliation. Such a lack of protection is no inconsequential matter, for "fear of retaliation is the leading reason why people stay silent instead of voicing their concerns about bias and discrimination."
The question, then, becomes this: What is the proper standard for determining whether an employee who reports an isolated incident of harassment has a reasonable belief that she is opposing a hostile work environment in progress? We conclude that, when assessing the reasonableness of an employee's belief that a hostile environment is occurring based on an isolated incident, the focus should be on the severity of the harassment.
[A]n employee will have a reasonable belief that a hostile work environment is occurring based on an isolated incident if that harassment is physically threatening or humiliating. This standard is consistent not only with Clark County, but also with other Supreme Court precedent, including Crawford and Burlington Northern. That is so because it protects an employee like Jordan who promptly speaks up "to attack the racist cancer in his workplace," rather than "remain[ing] silent" and "thereby allowing [discriminatory] conduct to continue unchallenged," while "forfeiting any judicial remedy he might have."
One of the most interesting dicta in Judge King’s opinion is contained in Footnote Six.  After holding that an employee will be held to have a reasonable belief that a hostile work environment is occurring if the isolated incident is “physically threatening or humiliating”, Judge King addressed how future courts should handle the eventuality where the isolated incident is merely “offensive”, but might be repeated sufficiently enough in the future to meet either the “severity” or “pervasiveness” test.  In Footnote Six, Judge King states that the Supreme Court’s decision in Clark County v. Breeden, 532 U.S. 268 (2001) does not necessarily preclude an argument that a complaint regarding an isolated incident which is “merely offensive” in all circumstances is not protected activity.  Instead, Judge King suggests that a plaintiff can reasonably believe that a single incident which is “merely offensive” created a hostile environment.  Judge King states: “The Court [in Clark County] did not consider whether the plaintiff could have reasonably believed that a hostile work environment, even though not fully formed, was in progress.”  Unfortunately for those laboring in the employment litigation vineyards, Judge King and his colleagues did not articulate how one is to determine whether or not a complaint in such circumstances is protected activity.  There does not appear to be a hint in the opinion as to how and where the lower courts are to draw the line between protected activity and non-protected activity where an individual is retaliated against because they complained about an isolated incident which is merely offensive, but one that they assert was “in progress” towards ultimately culminating in a hostile work environment. 

Judge Wilkinson, joined by Judge Agee, concurs and dissents, adding two more votes to reversal as to the retaliation count, but agreeing with the lower court, and the panel’s, determination that there was no hostile work environment.  Judge Wilkinson, with his trademark eloquence, summarizes his thinking as follows:

The remarks alleged in this Title VII action are ones that Americans of every race and all walks of life would find so wounding that the word offensive does not begin to describe them. It is incidents such as these, small as they may appear, that prevent our larger society from becoming the place of welcome it needs to be.
The good done by the civil rights laws has been enormous and one aim of those laws, as I understand it, is to make the workplace an environment where Americans of every race, religion, sex, or national origin would actually want to work.  42 U.S.C. § 2000e-2 and 2000e-3.
To say that a good workplace environment is poisoned by the kind of remarks alleged here is an understatement. Who would wish to get up and come to work each morning fearful of encountering this sort of slur during the course of the working day?
There is a countervailing danger at play in these cases, however, namely that we not imbue the workplace with such stringent hostile work environment requirements that employers become speech police, that employees are estranged from one another, and that companies become private sector analogues of the surveillance state.
Boyer-Liberto, 2015 U.S. App. LEXIS 7557 at *59-60 (Wilkinson, J., dissenting).

Judge Niemeyer, very much alone, dissents.  None of his colleagues join in his dissent.  Thus, after writing the opinion in Jordan, the later opinion in Jordan, attempting to justify a 5-5 denial of rehearing in Jordan, and the panel’s opinion in Boyer-Liberto, Judge Niemeyer was relegated to being a lone dissenter.  In that dissent, Judge Niemeyer repeatedly assaults the majority’s reading of the law.  Judge Niemeyer begins by accusing the majority of misreading a key passage in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), in which the Supreme Court held that “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.”  Judge Niemeyer reasons that:

Faragher, however, does not support the majority's reading of it, and the majority's conclusions are otherwise without precedent. First, in the very quotation relied on by the majority, the Faragher Court noted that "isolated incidents" -- using the plural -- might, if "extremely serious," satisfy the severity requirement for racial harassment. 524 U.S. at 788. To rationalize its holding, the majority thus reads the plural "incidents" in Faragher to refer only to a "single incident."
Judge King, writing for the majority, responds that:

Clearly, it is the dissent's interpretation of Faragher — not ours — that is untenable. To illustrate, the dissent elsewhere observes that a hostile environment claim "must be 'based on the cumulative effect of individual acts,'"…[s]trikingly, the dissent does not — and surely cannot — explain what differentiates "isolated incidents" that must be "extremely serious," from "individual acts" that may be "severe or pervasive." The dissent also quotes from Morgan that "'a single act of harassment may not be actionable on its own,'" without acknowledging the obvious import of Morgan's use of "may not" rather than "cannot." And, the dissent itself allows that a single, isolated incident of physical violence may be actionable, without even attempting to reconcile that proposition with its reading of Faragher.
Judge Niemeyer further asserts that:

 the majority fails to note that the portions of Faragher to which it cites were part of the Supreme Court's much lengthier discussion -- and substantively different message -- describing the type of conduct that would not violate Title VII. In that discussion, the Court drew on several opinions from the courts of appeals and noted, for instance, that the "'mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee' would not sufficiently alter terms and conditions of employment to violate Title VII
Judge King responds that:

[T]he dissent overemphasizes the first part of that sentence, at one point quoting the entire sentence while underscoring only "[m]ere utterance of an ethnic or racial epithet," and at another point actually omitting the phrase "which engenders offensive feelings in an employee[.]" Of course, the phrase "which engenders offensive feelings in an employee" is a critical qualifier, signifying "a mere offensive utterance" rather than a more egregious slur that is "physically threatening or humiliating."
The long and tortured history of this argument started over a decade ago in another Maryland Federal District Judge’s courtroom in Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006).  The facts in Jordan can be summarized as follows:
  1. Plaintiff was an African-American man employed by Defendant.
  2. During a broadcast regarding the arrest of two African-American men accused of being snipers and killing ten individuals in Maryland, Virginia, and the District of Columbia, an individual watching the report with Plaintiff stated “They should put those two black monkeys in a cage with a bunch of black apes and let the apes f—k them.” 
  3. Jordan complained about this statement, and was fired one month later.

The lower court held that “Plaintiff has not, as a matter of law, alleged that his complaint opposed a discriminatory practice in the workplace. Accordingly, the retaliation claims in his original complaint are insufficient, and will be dismissed.”  See Jordan v. Alternative Resources Corp., No. DKC 2004-1091, 2005 U.S. Dist. LEXIS 5279 (March 30, 2005). 

A divided panel of the Fourth Circuit affirmed this decision on May 12, 2006.  Judge Niemeyer, writing for the majority was by Judge Widener, who later died on September 17, 2007, and held as follows:

While Farjah's comment to the television on October 23, 2002 (or October 24) was unacceptably crude and racist, it was an isolated emotional response directed at the snipers through the television set when Farjah heard the report that they had been arrested. Because the remark was rhetorical insofar as its object was beyond the workplace, it was not directed at any fellow employee. Moreover, it was a singular and isolated exclamation, having not been repeated before or after October 23, 2002. Jordan does not and cannot allege in his complaint that Farjah's comment altered the terms and conditions of his employment. Based on all that Jordan knew, Jordan reasonably concluded that the remark was inappropriate and should not have been made. And while we agree with Jordan's sentiment, we conclude that such an allegation is a far cry from alleging an environment of crude and racist conditions so severe or pervasive that they altered the conditions of Jordan's employment with IBM or ARC. 
And, Judge King dissented, stating in dissent:

[A]s a matter of law, I do not subscribe to the majority's view that, pursuant to Navy Federal, an employee lacks Title VII protection for reporting racially charged conduct, unless he has "a reasonably objective belief that it will continue or will be repeated." See ante at 10. On this point, the majority implies that the employee cannot meet that burden without allegations that "a plan was in motion to create [a hostile work] environment." Id. This position is simply incorrect, for at least two reasons. First, requiring an employee to show that a hostile work environment was being planned imagines a fanciful world where bigots announce their intentions to repeatedly belittle racial minorities at the outset, and it ignores the possibility that a hostile work environment could evolve without some specific intention to alter the working conditions of African-Americans through racial harassment. Second,Navy Federal concerned an employee who had opposed a discrete act that itself contravened Title VII, and we had no reason to consider the circumstances under which an employee might reasonably believe that Title VII was being violated by a cumulative unlawful practice, such as a hostile work environment.
A petition for rehearing en banc was filed and, most interestingly, the judges eligible to vote split five to five.  There being no majority in favor of reconsideration en banc, after a petition for certiorari was denied, the litigation in Jordan ended.  Interestingly, when the Court split five to five on the question of reconsideration en banc, Judge Niemeyer felt compelled to write an opinion attempting to justify, yet again, his panel opinion.  See Jordan v. Alternative Res. Corp., 467 F.3d 378 (4th Cir. 2006).  Even though four other judges (Judges Widener, Shedd, Duncan, and Wilkinson) had joined Judge Niemeyer in voting against rehearing en banc, none of them joined in his opinion.  Of course, two of them would go on to vote with the majority in Boyer-Liberto.  Judge King, joined by four colleagues (Chief Judge Wilkins, and Judges Traxler, Michael, and Gregory) dissented.  In dissent, Judge King stated:

the panel majority has concluded that, when an employee complies with Ellerth and Faragher in promptly reporting racially charged conduct, he is stripped of his protection from retaliation under Title VII. Such a construction of Title VII, which penalizes an employee for complying with the controlling mandate of Ellerth and Faragher, is inconsistent with the Court's view of Title VII. In its recent White decision, the Court instructed that we must construe Title VII's anti-retaliation provision broadly, so as to further "the . . . provision's primary purpose" of "maintaining unfettered access to statutory remedial mechanisms." Nevertheless, the panel majority, without addressing White's holding, has construed Title VII's anti-retaliation provision so narrowly that most employees who seek its protection will have their access to statutory remedial mechanisms either fettered or barred altogether.  Our Court has thereby created an untenable Catch-22 situation for such employees.
Id.; see also Indraneel Sur, “How Far do Voices Carry: Dissents From Denial of Rehearing En Banc”, 2006 Wisc. L. Rev. 1315 (2006) (available at:

The petition for certiorari was denied on April 16, 2007.  Since being handed down Jordan has been cited in over three hundred decisions, and nearly as many journals, law reviews, and other secondary sources..

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Wednesday, April 15, 2015

Marijuana: District of Columbia Law & Causes of Action

I.                   Pertinent Legislation

The District of Columbia has taken the significant step of legalizing limited possession and cultivation of marijuana outright.  On November 1, 2014, D.C. voters approved Initiative 71, which arguably became law on February 26, 2015.  However, the United States Congress included a provision in the last spending bill prohibiting D.C. from spending funds to “enact” the law.  Further complicating matters, D.C. has taken the position that the law was actually “enacted” when Initiative 71 passed, and no further money needs to be spent for the decriminalization to take effect.  While there remains some controversy over whether Initiative 71 can be “enacted” by the D.C. Council, Mayor Muriel Bowser has strongly indicated that she will enforce the will of the voters.  See Mike DeBonis, Aaron C. Davis, “Bowser: Legal Pot Possession to Take Effect at Midnight in the District”, Washington Post (Feb. 25, 2015) (available here).  The District of Columbia also permits physicians to prescribe medical marijuana for any debilitating condition which they think would respond favorably to it.  Dept. of Health Notice of Proposed Rulemaking Vol. 60 No. 14 (March 29, 2013) (available here).

II.                So Is Marijuana Legal?

The possession, cultivation, and use of small amounts of marijuana is legal under District of Columbia law.  More particularly, the following activities are legal in the District of Columbia for adults over the age of 21:
·         Possessing two ounces or less of marijuana;
·         Giving one ounce or less of marijuana to another person over the age of 21 as long as there is no exchange of goods or services;
·         Growing up to six marijuana plants in their home, no more than three of which may be mature;
·         Possessing marijuana paraphernalia (e.g., “bongs”); and
·         Using marijuana on private property.

The District of Columbia has interpreted these laws strictly – for example, plants must be grown “inside” the home and may not be grown in an outdoor garden or on the roof.  Furthermore, the sale of any amount of marijuana by a private resident remains illegal.  Only licensed medical marijuana distributors may sell marijuana legally in the District of Columbia.  Finally, marijuana may not be used “[a]ny place to which the public is invited”.  This means that it may not be used, for example, in nightclubs, bars, or other businesses which are “open to the public.”  It is not clear, at this point, whether marijuana may be used in private, “members only” clubs. 

However, it is important to remember that marijuana remains illegal under federal law.  The United States government has listed marijuana on “Schedule I” of the Controlled Substances Act, 21 U.S.C. § 801 et seq.  Drugs listed on Schedule I are those which are considered to have “a high potential for abuse,” “no currently accepted medical use,” and “lack accepted safety.”  Other Schedule I substances include Opioids and Opium derivatives, such as Heroin, as well as other drugs with severe hallucinogenic, stimulant, or depressant properties.  Cannabimimetic agents, such as marijuana, are a separate category of drugs and are listed separately on Schedule I. 

One consequence of the fact that marijuana remains illegal on the federal level is that it falls within the scope of the Drug Free Workplace Act, 41 U.S.C. § 81.  The Drug Free Workplace Act applies to employers who: 1) have contracts valued at $150,000.00 or more with the federal government; or 2) receive any amount of grant money.  Covered employers are required to publish policies which prohibit the use of illegal drugs, discipline those who violate its policy, and report drug-related crimes in the workplace.  Sanctions for non-compliance include the termination of federal contracts or grant moneys, giving employers a strong incentive to avoid any appearance of tolerating drug use.

III.             Potential Causes of Action

There are two primary claims which may arise when an individual is terminated for the use of marijuana in the District of Columbia.  Recreational users may have a claim for wrongful termination in violation of public policy under Adams v. George W. Cochran & Co., 597 A.2d 28 (D.C. 1991) and Carl v. Children’s Hospital, 702 A.2d 159 (D.C. 1997) (en banc).  Adams and Carl arguably stand for the proposition that employers may not terminate employees for reasons which violate public policy, including exercising a statutory right.  See Carl, 702 A.2d at 160.  While citizens in D.C. now have a circumscribed “right” to make recreational use of marijuana by virtue of the fact that it is no longer illegal to do so, it is not clear that this “right” can support a cause of action for wrongful termination.  D.C. courts, like other courts, have narrowly interpreted the tort of wrongful termination, and may not be willing to extend it to cover the use of marijuana, as will be discussed below.

Medical marijuana users, meanwhile, may have a claim under the D.C. Human Rights Act, which prohibits discrimination against, among other protected categories, individuals with disabilities.  See D.C. Code § 2-1401.11(a).  This obligation extends to reasonably accommodating the disabilities of employees.  See Grant v. May Dep’t Stores Co., 786 A.2d 580, 583 (D.C. 2001).  Many medical conditions treatable with marijuana, such as glaucoma and epilepsy, qualify as “disabilities” under the D.C. Human Rights Act.  The determinative issue in such cases is likely to be whether marijuana use is a “reasonable” accommodation to an individual’s disability.

The District of Columbia has not yet addressed this, and many other, issues surrounding the implications of its medical marijuana laws.  That said, an employer faced with the loss of federal grants or contracts for permitting the use of medical marijuana could likely argue that the requested accommodation constituted an “undue burden”.  This is especially true if other medications are capable of treating the individual’s condition.  In the absence of such contracts or grants, and assuming that an employee was not “under the influence” at work, it would undoubtedly be argued that a medical marijuana employee discharged for use of medical marijuana can maintain a claim for failure to accommodate a disability in the event that they were terminated or disciplined for off-duty marijuana use. 

D.C. courts have not yet had the opportunity to pass on whether such claims are permissible.  However, most courts to address the issue have concluded that, absent a statutory command to the contrary, employers remain free to set their own drug policies and to discipline or terminate employees who violate those policies.  SeeCoats v. Dish Network, 2013 COA 62 (Colo. Ct. App.  2013), cert. granted (Court held that medical marijuana is not a  “lawful activity” under CO statute because activity must be legal under  both state and federal law); Casias v. Wal-Mart, Inc. 695 F. 3d 248 (2012) (Court held that the Michigan Medical Marijuana Act does not regulate private employment); Roe v.Teletech Customer Care Management LLC,  171 Wash 2d 736(Wash. Sup. Ct. 2011) (Court held that Washington’s  Medical Use of Marijuana Act did not regulate private employer’s conduct  and employee who used medical marijuana had no claim for wrongful  discharge); Beinor v. Industrial Claim Appeals Office, 262 P.3d  970 (Colo. Ct. App. 2011), (Court found that Colorado’s medical  marijuana amendment provided an affirmative defense to criminal  prosecution but did not preclude denial from unemployment benefits after  plaintiff was terminated for violating employer’s zero tolerance drug  policy); Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries,  224 P.3d 518 (Ore. 2010) (Court found that under Oregon's employment  discrimination laws, employer was not required to accommodate employee's  use of medical marijuana); Ross v. RagingWire Telecommunications, Inc., 174  P.3d (Cal. 2008)(Court held that state law cannot completely legalize  marijuana for medical use because it is illegal under federal law); but see Arizona Revised Statutes 36-2801, 2813 (2104) (“An  employer may not discriminate against a person in hiring, termination  or imposing any term or condition of employment….for a registered  qualifying patient's positive drug test for marijuana components or  metabolites, unless the patient used, possessed or was impaired by  marijuana on the premises of the place of employment or during the hours  of employment.”). 

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