The Cat's Paw Takes A Swipe at But-For Causation

After the Supreme Court’s decision in University of Tex. Southwestern Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013), holding that but-for causation is the standard for proving retaliation in a Title VII case, many thought that there was an open question as to whether the holding in Staub v. Proctor Hosp., 562 U.S. 411 (2011), the so-called “Cat’s Paw” case, would apply in a but-for causation context.  In Staub the Court held that, if the discriminating employee proximately caused the ultimate decisionmaker’s adverse action, then the “Cat’s” discriminatory intent would be imputed to the ultimate decisionmaker even though the decisionmaker was not consciously discriminating.  

So far, four circuits have weighed in on this question, unanimously concluding that even after Nassar, plaintiffs may use a “Cat’s Paw” theory even in Title VII retaliation cases.  See Zamora v. City of Houston, 798 F.3d 326 (5th Cir. 2015); EEOC v. New Breed Logistics, 783 F.3d 1057, 1070 (6th Cir. 2015); Ward v. Jewell, 772 F.3d 1199, 1203, 1205 (10th Cir. 2014); Bennett v. Riceland Foods, Inc., 721 F.3d 546, 551 (8th Cir. 2013); see also Godwin v. WellStar Health Sys., Inc., 615 Fed. Appx. 518 (11th Cir. 2015) (using Cat’s Paw analysis in an ADEA case that required but-for causation).  

Judge Clement, writing for the Fifth Circuit panel in Zamora, stated the holding as follows: “…the applicable standard of causation is relevant only to the latter portion of this Staub test – instead of being a proximate cause, the supervisor’s act must be a ‘[but-for] cause of the ultimate employment action.’” (citation omitted) Zamora v. City of Houston, at 332.  In doing so, Judge Clemente references Seoane-Vazquez v. Ohio State Univ., 577 F.App’x 418, 427-29 (6th Cir. 2014), where the Sixth Circuit substituted but-for causation for motivating factor causation in applying "Cat’s Paw" analysis in a post-Nassar case.  With decisions like Zamora and the Fourth Circuit’s blockbuster holding in Foster v. Univ. of Md. – E. Shore, 787 F.3d 243 (4th Cir. 2015), which held that Nassar’s but-for analysis only applies to direct-evidence cases, and not to McDonald-Douglas cases, the bar and the courts are confronted with the herculean task of drafting jury instructions that the jury can comprehend and that will pass muster in the appellate courts.  Undoubtedly, some of these issues regarding causation will filter back up to the Supreme Court, and, hopefully, we will get more clarity on what causation scheme applies to the alphabet soup of statutory employment claims.  

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Dodd-Frank Amendment to Arbitrability of SOX Whistleblower Claims Cause a Stir

The Dodd-Frank Act is a sweeping piece of legislation, with reforms touching a wide array of topics, including arbitration.  Below are briefly discussed some of the interpretive issues which courts are currently struggling with.

I.                Scope of Whistleblower Protections

The Dodd Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”), 15 U.S.C. 78aaa et seq. contained, among other things, two clauses which are relevant here.  First, it created a private right of action for whistleblower retaliation.  See 15 U.S.C. § 78u-6(h)(1)(A). 

The scope of this right of action remains uncertain.  Some courts have held that only individuals who have reported information to the SEC are covered by the whistleblower anti-retaliation provisions created by the Dodd-Frank Act.  See Asadi v. G.E. Energy (USA), L.L.C., 720 F.3d 620 (5th Cir. 2013) (“Based on our examination of the plain language and structure of the whistleblower-protection provision, we conclude that the whistleblower-protection provision unambiguously requires individuals to provide information relating to a violation of the securities laws to the SEC to qualify for protection from retaliation under § 78u-6(h).”(emphasis in original)); Wagner v. Bank of Am. Corp., No. 12-cv-00381, 2013 U.S. Dist. LEXIS 101297, 2013 WL 3786643 (D. Colo. July 19, 2013) (“Ms. Wagner did not provide any information to the Commission, whether relating to a violation of the securities laws or otherwise, prior to her termination. Accordingly, she was not a ‘whistleblower’ as defined in this statute.”); Bank v. Apple, Inc. No. 13-cv-2977, 2013 U.S. Dist. LEXIS 149686, 2013 WL 7394596 (N.D. Cal. Sept. 27, 2013) (“Because plaintiff did not file a complaint to the SEC, he is not a ‘whistleblower’ under the Dodd-Frank Act.”)

However, the majority of courts to consider the issue have determined that the whistleblower protections apply regardless of whether the conduct was reported to the SEC prior to termination.  See Khazin v. TD Ameritrade Holding Corp., No. 13-4149 (D.N.J. March 11, 2014) (available at: http://scholar.google.com/scholar_case?case=1464737894098735581) (collecting authority and following what it characterizes as the rule endorsed by “most district courts addressing [the] issue”); Ellington v. Giacoumakis, No. 13-11791, 2013 U.S. Dist. LEXIS 148939, 2013 WL 5631046, at *3 (D. Mass. Oct. 16, 2013) (relying on SEC's comments to the Dodd-Frank Act in holding that “Congress intended that an employee terminated for reporting Sarbanes-Oxley violations to a supervisor or an outside compliance officer, and ultimately to the SEC, have a private right of action under Dodd-Frank whether or not the employer wins the race to the SEC's door with a termination notice”); Murray v. UBS Sec., LLC, No. 12-5914, 2013 U.S. Dist. LEXIS 71945, 2013 WL 2190084, at *4 (S.D.N.Y. May 21, 2013) (giving deference to the SEC's interpretation of the rule and holding that the anti-retaliation whistleblower provisions apply to individuals who report information to the SEC or provide disclosures that fall under § 78u-6(h)(1)(A)(iii));  Genberg v. Porter, 935 F. Supp. 2d 1094, 1106-07 (D. Colo. 2013); Nollner v. S. Baptist Convention, Inc., 852 F. Supp. 2d 986, 995 (M.D. Tenn 2012); Kramer v. Trans-Lux Corp., No. 11 Civ. 1424, 2012 U.S. Dist. LEXIS 136939, 2012 WL 4444820, at *6-7 (D. Conn. Sept. 25, 2012); Egan v. Tradingscreen, Inc., No. 10 Civ. 8202, 2011 U.S. Dist. LEXIS 47713, 2011 WL 1672066, at *6-7 (S.D.N.Y., May 4, 2011) (all holding that the Dodd-Frank Act’s whistleblower protections apply regardless of whether the employee reported information to the SEC). 

The SEC’s final rule, which was relied upon by the federal district court for the Southern District of New York, as well as other courts, in construing the reach of the Dodd-Frank Act’s whistleblower protections deals with whether SEC reporting is mandatory for whistleblower protections.  The rule explains that “the anti-retaliation whistleblower protection provisions of Dodd-Frank require Plaintiff to show that he either provided information to the SEC or that his disclosures fell under the four categories listed in Section 78u-6(h)(1)(A)(iii).” Murray, 2013 U.S. Dist. LEXIS 71945, 2013 WL 2190084 at *7 (emphasis in original); 76 Fed. Reg. 34300, 34304 (June 13, 2011) (available at: https://www.sec.gov/rules/final/2011/34-64545fr.pdf).  In brief, the SEC’s interpretation of the Dodd-Frank Act’s whistleblower protections encompasses individuals who make internal reports of violations, not only individuals who make complaints to the SEC.  In Khazin, the federal district court for the District of New Jersey held that the SEC’s rule is “a permissible construction of the statute” and, therefore, deferred to the SEC’s interpretation.  Khazin, No. 13-4149 (available at: http://scholar.google.com/scholar_case?case=1464737894098735581).

II.             Dodd-Frank and Pre-Dispute Arbitration Agreements

The Dodd-Frank Act amended the Securities Exchange Act of 1934, 15 U.S.C. § §  78a-78ll to create an Anti-Retaliation Provision.  Separately, Congress also amended 15 U.S.C. § 1514A, which contains the private right of action against retaliation which had been created by the Sarbanes-Oxley Act to append a prohibition against pre-dispute arbitration agreements.  The Anti-Retaliation Provision which the Dodd-Frank Act added to the Securities Exchange Act of 1934 did not include any provision analogous to the prohibition against pre-dispute arbitration agreements.  Although the language of the two causes of action is broadly similar, the remedy created by Dodd-Frank in the Securities Exchange Act provides for a greater recovery, and does not require that a claimant first file with OSHA. 

The provision added by the Dodd-Frank Act to the Sarbanes-Oxley Act prohibiting pre-dispute arbitration agreements is codified at 15 U.S.C. § 1514A(e), and reads:

(1) Waiver of rights and remedies.— The rights and remedies provided for in this section may not be waived by any agreement, policy form, or condition of employment, including by a predispute arbitration agreement.
(2) Predispute arbitration agreements.— No predispute arbitration agreement shall be valid or enforceable, if the agreement requires arbitration of a dispute arising under this section.

This provision makes pre-dispute arbitration agreements unenforceable to the extent that they would cover whistleblower claims brought under the provisions of the Sarbanes-Oxley Act.  The Dodd-Frank Act’s own whistleblower retaliation cause of action contains no similar provision.

Plaintiffs have argued that this provision should be read to apply to the Dodd-Frank Act’s whistleblower provisions as well due to the fact that the language of these provisions is otherwise largely parallel.  See Murray v. UBS Sec., LLC, No. 12-civ-5914, 2014 U.S. Dist. LEXIS 9696, 2014 WL 285093 at *29-*32 (S.D.N.Y. Jan. 27, 2014).  In support of this argument, plaintiffs note that the Dodd-Frank Act amended both the Sarbanes-Oxley Act and the Commodity Exchange Act to prohibit pre-dispute arbitration agreements.  However, the Securities Exchange Act was not included in this amendment.  While there is little authority on this issue, this argument appears to have been rejected by the few courts which have had occasion to consider it.  See Id.; Ruhe v. Masimo Corp., SACV 11-00734-CJC, 2011 U.S. Dist. LEXIS 104811, 2011 WL 4442790 at *4 (C.D. Cal. Sept. 16, 2011) (“Plaintiffs must arbitrate their claims brought pursuant to 15 U.S.C. § 78-u because the Dodd-Frank act does not render predispute arbitration agreements invalid or unenforceable for actions brought pursuant to this section.”)).  Similarly, the federal district court for the Southern District of New York compelled arbitration based on the “plain language” of the Securities Exchange Act – in other words, the lack of any provision voiding pre-dispute arbitration agreements.  Murray, 2014 U.S. Dist. LEXIS 9696; John Fullerton III and Jason Kaufman, The Enforceability of Predispute Arbitration Agreements With Respect to Dodd-Frank and SOX Whistleblower Retaliation Claims Continues to be a Puzzle, Lexology (March 27, 2014) (available at: http://www.financialservicesemploymentlaw.com/2014/03/27/the-enforceability-of-predispute-arbitration-agreements-with-respect-to-dodd-frank-and-sox-whistleblower-retaliation-claims-continues-to-be-a-puzzle/). 

The question of whether the Dodd-Frank Act permits pre-dispute arbitration agreements remains open.  However, the little authority extant on this question favors the enforceability of such an agreement.

III.           Retroactivity of the Dodd-Frank Amendments to the Sarbanes-Oxley Act Regarding Pre-Dispute Arbitration Agreements

Although the Sarbanes-Oxley Act was expressly amended to invalidate pre-dispute arbitration agreements to the extent that they apply to whistleblower claims brought under the Sarbanes-Oxley Act, courts are divided on the question of whether this amendment applies retroactively to void such agreements made prior to the effective date of the Dodd-Frank Act, or whether it should apply only to agreements entered into subsequent to the effective date of the Dodd-Frank Act.  See Bradley M. Nerderman, Note: Should Courts Apply Dodd-Frank’s Prohibition on the Enforcement of Pre-Dispute Arbitration Agreements Retroactively, 98 Iowa L. Rev. 2141 (July 2013) (available at: http://www.uiowa.edu/~ilr/issues/ILR_98-5_Nerderman.pdf) 

The rationale for refusing retroactive application relies on several points.  First, it is worth noting that “retroactivity is not favored by the law” absent a clear congressional intent to the contrary.  Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1998).  Assuming that there is no such clearly expressed intent, a court will evaluate whether retroactive application of the statute will “have a retroactive consequence in the disfavored sense of affecting substantive rights.”  Fernandez-Vargas v. Gonzales, 548 U.S. 30, 37 (2006). 

In most cases the dispute hinges on whether the court in question views arbitration as a jurisdictional or procedural right, or a substantive contractual right.  Courts have split on this issue.  Compare Pezza v. Investors Capital Corp., 767 F. Supp. 2d 225, 234 (D. Mass. 2011); Wong v. CKX, Inc., 890 F. Supp. 2d 411, 422 (S.D.N.Y. 2012) (both holding that the provisions prohibiting pre-dispute arbitration agreements apply retroactively); with Henderson v. Masco Framing Corp., No. 11-0088, 2011 U.S. Dist. LEXIS 80494, 2011 WL 3022535 (D. Nev. July 22, 2011); Weller v. HSBC Mrtg. Servs. Inc., No. 13-00185, 2013 U.S. Dist. LEXIS 130544, 2013 WL 4882758 at *4 (D. Colo. Sept. 11, 2013) (both holding that the provisions prohibiting pre-dispute arbitration agreements do not apply retroactively).

The federal district court for the District of Columbia addressed this issue in Taylor v. Fannie Mae, 839 F. Supp. 2d 259, 263 (D.D.C. 2012).  In Taylor, the Court denied retroactive effect to the provisions of the Sarbanes-Oxley Act which prohibit pre-dispute arbitration agreements.  Id.  After first determining that the Sarbanes-Oxley act was silent as to whether the provisions were intended to have retroactive effect, the Taylor court interpreted the provisions as having only prospective effect because it “fail[ed] to see how a retroactive application would not impair the parties’ rights possessed when they acted.”  Id. 

This, also, remains an open issue within the District of Columbia, and it is possible that other courts will not follow the decision in Taylor.  Of course it is also possible that the reasoning in Taylor will prevail and that a court would refuse to apply the amendment retroactively to invalidate arbitration agreements entered into prior to the effective date of the Dodd-Frank Act. 

Finally, assuming that the holding in Taylor prevails, an interesting question remains as to whether that determination will erode as time goes by.  To explain, it seems arbitrary that an employee of twenty years tenure, who signed a pre-amendment employment agreement should be bound to arbitrate claims decades after the United States Congress clearly stated that such agreements are void, while an employee of nineteen years tenure would not be so bound.  

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Retaliatory Opposition to Employee’s Application for Unemployment Benefits

 

An interesting split has developed in the federal district courts as to whether an employer’s opposition to a former employee’s application for unemployment benefits, if motivated by a retaliatory animus, is actionable.  The weight of authority, particularly after Burlington N. & Sante Fe R.R. Co. v. White, 126 S. Ct. 2405 (2006), has been to find that such conduct is actionable.  Indeed, as it arises after the termination of the employment relationship – and thus potentially after the execution of the waiver of claims contained in a separation agreement – such claims may be difficult to extinguish.  See Steele v. Schafer, 535 F.3d 689, 696 (D.C. Cir. 2008) (noting in dicta that plaintiff’s claim that employer retaliated by falsely contesting plaintiff’s unemployment benefits “involve[d] conduct that… the Supreme Court has already indicated can support a retaliation claim” in Burlington v. White); Koger v. CT. Woody, No. 3:09-cv-90, 2009 U.S. Dist. LEXIS 77433 (E.D. Va. Aug. 28, 2009) (protection under Title VII extends to both employees and “former employees” and a frivolous denial of unemployment benefits may constitute retaliation); Roa v. LAFE, 955 A.2d 930 (N.J. App. Div. 2008) (employer’s post-termination conduct in terminating medical benefits and opposing request for unemployment stated cause of action); Petrunich v. Sun Bldg. Sys., Inc., 2006 U.S. Dist. LEXIS 69043 (M.D. Pa. Sept. 26, 2006) (“under the standard articulated in [Burlington Northern], the opposition to [a plaintiff’s] claim for unemployment compensation benefits [may be] an adverse employment action because it [could]).

In Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079 (10th Cir. 2007) the Tenth Circuit addressed a situation in which an employee was terminated after filing a grievance regarding gender discrimination with the Human Rights Division of the New Mexico Department of Labor.  Shortly afterwards, the employee was terminated, and was told by the employer’s President that, if she challenged him, he would “ruin your marriage.”  Subsequently the employer opposed plaintiff’s request for unemployment benefits on the basis that plaintiff was terminated “for cause” due to sexual misconduct, drinking, and theft of company property.  No evidence was provided to substantiate these charges.  During the hearing on plaintiff’s unemployment benefits application, the employer’s attorney allegedly said “[i]f you will drop your Human Rights [discrimination] claim, I won’t fight you on your unemployment.”  Williams was later awarded unemployment benefits.  The district court, in a ruling handed down prior to Burlington Northern, dismissed plaintiff’s claim for retaliation with respect to unemployment benefits, finding that because plaintiff had suffered no delay or cessation of benefits that the employer’s opposition did not constitute an adverse influence.  Williams v. W.D. Sports N.M., Inc., 2005 U.S. Dist. LEXIS 46146 (D.N.M. Feb. 25, 2005).  The Tenth Circuit reversed under the holding of Burlington Northern, holding that a jury could have concluded that the employer’s conduct was sufficiently adverse that it might have dissuaded plaintiff from making or supporting a charge of discrimination.   Williams, 497 F.3d 1079 (10th Cir. 2007); See also Michael R. Lied, Employer’s Challenge to Unemployment Benefits May be Evident of Unlawful Retaliation, Illinois State Bar Assoc., Section on Labor & Employment Law Newsletter (Feb. 8, 2008) (available at: http://www.howardandhoward.com/news/pub.asp?id=94); Daniel M. Combs, Employer’s Stated Willingness Not to Oppose Unemployment Benefits Claim if Employee Dropped Lawsuit Could be Retaliation, Sherman & Howard Client Advisory (Oct. 2008) (available at: http://www.sah.com/docs/news/UnemploymentRetaliationAdvisoryOct2008.pdf).

A minority of courts, including several decisions which predate Burlington Northern, adhere to the view that an employer’s decision to exercise its legal right to oppose unemployment benefits does not constitute prohibited retaliation.  Among those authorities is Judge Mae A. D’Agostino of the Northern District of New York who held, in Burnett v. Trinity Inst. Homer Perkins Ctr., Inc., 2011 U.S. Dist. LEXIS 48999 (N.D.N.Y. May 6, 2011) that “defendant’s decision to exercise its legal rights and oppose plaintiff’s receipt of unemployment benefits… cannot serve as a basis for a retaliation claim.”  See also Powell v. Honda of Am., No. 06-cv-979, 2008 U.S. Dist. LEXIS 56991 (S.D. Ohio July 22, 2008) (refusing as futile for failure to state a claim plaintiff’s request to amend complaint to include cause of action for retaliation for opposition to request for unemployment benefits – the court, relying on pre-Burlington Northern authority, found that opposition was “not retaliatory in nature” because it was “clearly the employer’s right and duty.”); Roman v. Cornell Univ., 53 F. Supp. 2d 223, 245 (N.D.N.Y. 1999) (holding that a retaliation based on opposing plaintiff’s application for unemployment benefits could not survive a motion for summary judgment because it was “not an adverse employment action”); Kowalski v. Kowalski Heat Treating, Co., 920 F. Supp. 799, 805 (N.D. Ohio 1996) (opposition to unemployment benefits was not the sort of adverse action contemplated by Ohio Legislature); Baker v. Summit Unlimited, Inc., 855 F. Supp. 375 (N.D. Ga. 1994) (granting summary judgment for the defendant because it had a right to defend the unemployment action after plaintiff pursued benefits); As noted in Adamchik v. Compservices, Inc., No. 10-949, 2010 U.S. Dist. LEXIS 130133 (W.D. Penn. Dec. 9, 2010), the viability of these decisions, many of which predate Burlington Northern or rely upon pre-Burlington Northern authority to support their conclusions, is an open question.  See also Mohamed v. Sanofi-Aventis Pharms., 2009 U.S. Dist. LEXIS 119871 (S.D.N.Y. Dec. 22, 2009) (“[i]n the wake of Burlington…, there is now a substantial question as to the validity of precedent holding that a post-termination [event] may not be an adverse employment [action]”) (citations omitted).  

            Retaliation is particularly likely to be found where opposition to unemployment benefits is meritless.  For example, in Williams, the President admitted at trial that the grounds asserted during the unemployment hearing did not form the basis for plaintiff’s termination.  Similarly, in Wright v. Life Start Ctrs., Inc., 2000 U.S. Dist. LEXIS 16424 (N.D. Ill. Oct. 19, 2000) the defendant-former employer made false statements during an unemployment hearing which resulted in the initial denial of plaintiff’s unemployment benefits.  The Court, in a pre-Burlington Northern decision, reasoned that this constituted a sufficient adverse action to give rise to a cause of action for retaliation.  Many other courts have reached similar conclusions.  See Betts v. Container Corp., No. 95-1064, 1997 U.S. App. LEXIS 10648 (7th Cir. May 7, 1997) (holding that Robinson v. Shell Oil Co., 117 S. Ct. 843 (1997) made clear that Title VII extends to former employees, and thus that it could apply to opposition to unemployment benefits); Liverpool v. Conway, Inc., 2009 WL 1362965 (E.D.N.Y. May 15, 2009) (refusing to dismiss for failure to state a claim plaintiff’s claim for retaliation based on allegedly meritless opposition to unemployment benefits); Grace v. Starwood Hotels & Resorts Worldwide, Inc., C.A. No. 6-1203, 2008 U.S. Dist. LEXIS 10951 (W.D. Pa. Feb. 14, 2008) (opposing unemployment benefits can constitute retaliation however, here the Court found that defendant-former employer established that its conduct was in accordance with its regular practice and plaintiff failed to meet his burden of proof under McDonnell Douglas).  However, even post-Burlington Northern, if the employer possessed a legitimate reason for terminating Plaintiff, it is unclear whether opposing unemployment benefits can constitute retaliation.  See Spencer v. CSL Plasma, Inc., No. 3:10-cv-00262, 2011 U.S. Dist. LEXIS 102846 (W.D. Ky. Sept. 12, 2011) (while opposition to unemployment benefits can constitute retaliation, if defendant has legitimate, non-discriminatory basis for its actions plaintiff must still meet burden-shifting obligations under McDonnell Douglas); Hatton v. United Parcel Serv., No. 05-97-JBC, 2006 U.S. Dist. LEXIS 47734 (E.D. Ky. July 7, 2006) (no claim for retaliatory denial of unemployment benefits, at least where employee presented no evidence to rebut employer’s contention that opposition was made in good faith).

            One of the remaining questions is whether a non-frivolous opposition to unemployment benefits, animated by retaliatory intent, gives rise to a violation, or whether only challenges to unemployment benefits which are both frivolous and retaliatory in nature are prohibited.  This debate mirrors that which is discussed in our paper on retaliatory counterclaims.

For further information and discussion on this subject, see the following materials:

·        Michael R. Lied, Employer’s Challenge to Unemployment Benefits May be Evident of Unlawful Retaliation, Illinois State Bar Assoc., Section on Labor & Employment Law Newsletter (Feb. 8, 2008) (available at: http://www.howardandhoward.com/news/pub.asp?id=94);

·        Daniel M. Combs, Employer’s Stated Willingness Not to Oppose Unemployment Benefits Claim if Employee Dropped Lawsuit Could be Retaliation, Sherman & Howard Client Advisory (Oct. 2008) (available at: http://www.sah.com/docs/news/UnemploymentRetaliationAdvisoryOct2008.pdf) ;

·        Aaron Clark, Avoid Thoughts of Revenge When Your Employee Leaves, McGrath North Firm Publications (available at: http://www.mcgrathnorth.com/firm_publications_view.asp?pubID=324)

·        Nina Pirrotti, Retaliation After Employment Ends: The Former Employer’s “Parting Shot.”, National Employment Lawyers Association Annual Conference (2012)

·        Stark & Stark, It Ain’t Over, Even After It’s Over: New Jersey Curt Extends Retaliation Claims Under Law Against Discrimination (NJLAD) For Post-Termination Actions, New Jersey Law Blog (Nov. 6, 2008) (available at: http://www.njlawblog.com/2008/11/articles/employment/it-aint-over-even-after-its-over-new-jersey-court-extends-retaliation-claims-under-law-against-discrimination-njlad-for-posttermination-actions/)

 


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Supreme Court Holds that a Verbal Complaint Constitutes "Filing" Under the FLSA in a 6-2 Majority (Kagan, J., not participating)

In Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834, 563 U.S. ___ (March 22, 2011), the Supreme Court held that the anti-retaliation provision of the Fair Labor Standards Act (FLSA) applies to both oral and written complaints.  In an opinion written by Justice Breyer, the Court found that 29 U.S.C. § 215 (a)(3) of the FLSA, its anti-retaliation provision, should be broadly construed to protect an employee who "has filed any complaint" . . . under or related to [the Act] . . ." Slip op. at 1. Justice Scalia, with whom Justice Thomas joined, vigorously dissented.

In so holding, Justice Breyer states: ". . . The phrase 'filed any complaint' contemplates some degree of formality, certainly to the point where the recipient has been given fair notice that a grievance has been lodged and does, or should, reasonably understand the matter as part of its business concerns." Slip op. at 11.  This frames a new jury instruction to ask jurors to determine whether Justice Breyer's "formality" test has been satisfied.  Following the articulation of that test, Justice Breyer states: "And it is difficult to see how an employer who does not (or should not) know an employee has made a complaint could discriminate because of that complaint." Id.

Finally, Justice Breyer states that the Court agrees with the government's statement at oral argument that a complaint is "filed" when "a reasonable, objective person would have understood the employee" to have "put the employer on notice that [the] employee is asserting statutory rights under the [Act]."  Id. at 12.  Do I hear Justice Breyer again framing the jury instruction?  Justice Breyer goes on to say the following: "To fall within the scope of the antiretaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection."  Id.  More fodder for jury instructions.

Justice Breyer and Justice Scalia (with Justice Thomas opting out of Justice Scalia's sarcastic footnote number 6 about Skidmore deference) cross swords over whether any deference should be given to the fact that the Secretary of Labor had consistently construed the statute to encompass oral complaints.  Justice Breyer finds the agency views to be reasonable, consistent with the statute, to reflect careful consideration rather than post hoc rationalization, and to consequently "add force" to the Court's ultimate ruling.

Interestingly, even though a violation of the anti-retaliation provision of the FLSA can subject the violator to criminal prosecution, see 29 U.S.C. § 216(a), Justice Breyer refuses to apply the "rule of lenity" that applies to the interpretation of criminal statutes, finding that the statute does not "remain[] sufficiently ambiguous to warrant application of the rule of lenity here."  Id. at 14.  This holding by the Court may very well be transported into civil litigation under the Computer Fraud and Abuse Act, which from its inception was a criminal statute and only later a civil statute also.

The Court, of course, declines to address the underlying, unresolved issue in this case, that is, whether internal corporate complaints are entitled to protection in any event.  So, bottom line, we know for certain that oral complaints that satisfy Justice Breyer's "formality" test are protected under the FLSA, but given the deep division that exists within the federal courts, we do not know whether complaints, whether they be oral or written, within a company about FLSA violations constitute protected activity under the anti-retaliation provisions of the FLSA.  That issue remains for another day, and Justice Scalia makes it unequivocally plain that he would find internal corporate complaints to not be encompassed by the statute.  Certainly, in those circuits that have held internal corporate complaints to be protected, employers will now need to institute procedures to receive oral complaints and to alert the chain of supervision to advise management of oral complaints.

While I am only beginning to think through the implications of the opinion, it seems to me that it would be wise for employers to put in writing in its employee handbook where and how one can orally complain within the company.  One would think that if the company has articulated a specific process and specific persons to whom one can and should complain, alleged oral complaints outside of that process may not meet Justice Breyer's "formality" rule and thus may not be entitled to protection under the FLSA.

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James v. Metro Government of Nashville

Someone asked if I would set out the citations that reflect the circuit split on this issue - the issue being whether the judge or the jury decides whether the facts support a claim that the retaliatory act could have deterred protected conduct. In our post of Friday, we provided the Fourth, Sixth and D.C. Circuit authorities on this issue.

The Fifth Circuit has held that judges, not juries determine whether the fact-bound Burlington Northern standard has been met. See DeHart v. Baker Hughes Oilfield Operations, Inc., 214 Fed. Appx. 437 (5th Cir. 2007). The Eleventh Circuit so held in Collins v. Board of Trustees of University of Alabama, 211 Fed. Appx. 848 (11th Cir. 2006). The Eighth Circuit goes with courts, not juries. See Higgins v. Gonzales, 2007 WL 817505 at *8-*9 (8th Cir., March 20, 2007). The Seventh Circuit in at least six cases since Burlington Northern has held that judges are to decide the question. See Roney v. Illinois Dept. of Transportation, 474 F.3d 455, 459 (7th Cir. 2007); Phelan v. Cook County, 463 F.3d 773, 781 n.3 (7th Cir. 2006); Szymanski v. County of Cook, 468 F.3d 1027, 1031 (7th Cir. 2006); Thomas v. Potter, 2002 Fed. Appx. 118 (7th Cir. 2006); Novak v. Nicholson, 2007 WL 1259054 at *5 (7th Cir., Apr. 12, 2007); Schmidt v. Canadian National Railway Corp., 2007 WL 755171 at *4 (7th Cir., Mar. 13, 2007).

In addition to the D.C. Circuit, three other circuits have held that juries, not judges, determine the question. The Third Circuit has so decided in at least three cases. See Hare v. Potter, 2007 WL 841031 at *11 (3d Cir., Mar. 21, 2007); Ridley v. Costco Wholesale Corp., 217 Fed. Appx. 130, 1325 (3d Cir. 2007); Moore v. City of Philadelphia, 461 F.3d 331, 347 (3d Cir. 2006). The Second Circuit has aligned itself in favor of juries. See Kessler v. Westchester County Department of Social Services, 461 F.3d 199, 209-10 (2d Cir. 2006); Wrobel v. County of Erie, 211 Fed. Appx. 71, 73 (2d Cir. 2007); Zelnik v. Fashion Institute of Technology, 464 F.3d 217, 227 (2d Cir. 2006). And, the Tenth Circuit has joined the Second, Third and District of Columbia Circuits in holding that the application of the Burlington Northern standard to the circumstances of a case is a matter for a jury. See Williams v. W.D. Sports, 2007 WL 2254940 at *10 (10th Cir., Aug. 7, 2007).

False Claims Act

On January 22, 2008, the U.S. Supreme Court denied cert in U.S. ex rel. Bly-Magee v. Premo, Case No. 05-55556 (9th Cir. Dec. 13, 2006). The Ninth Circuit's opinion is at 470 F.3d 914. In Bly-Magee, the Ninth Circuit ruled that non-federal reports, audits, and investigations qualify as a source of public disclosure under 31 U.S.C. section 3730(e)(4)(A). This represents yet one more split in the circuits, for the Third Circuit limits this provision to federal reports, audits, investigations. See U. S. ex rel. Dunleavy v. County of Delaware, 123 F.3d 734, 745 (3d Cir. 1997). The Eighth Circuit, on the other hand, agrees with this Ninth Circuit decision. See Hays v. Hoffman, 325 F.3d 982, 988 (8th Cir. 2003).

FLSA Settlements

If you settle an FLSA claim and have it supervised by the US Department of Labor, pursuant to 29 U.S.C. Section 216(c), the settling employee may end up signing off on a government form entitled WH-58 "Receipt for payment for lost or denied wages, employment benefits, or other compensation." In a recent opinion, the Ninth Circuit teaches us that the language contained in that form can either extinguish a claim or merely extinguish some portion of a claim.

In Dent v. Cox Communications Las Vegas, Inc., 502 F.3d 1141 (9th Cir. 2007), Mr. Dent signed a WH-58 which acknowledged receipt of payment of unpaid wages for the period beginning with the workweek ending May 4, 2002 through the workweek ending October 11, 2003. Thereafter Dent claimed unpaid wages for a time period prior to May 4, 2002. The district court dismissed his claim, accepting the employer's argument that the unpaid overtime wage claim had been settled in full. The Ninth Circuit reversed, finding that his claim was released only with regard to the time period specified in the WH-58.

Two New New Jersey Employment Statutes

New Jersey has amended its Law Against Discrimination and expanded it to require that employers reasonably accommodate sincerely held religious beliefs unless to do so would impose an undue burden. The statute now defines "undue hardship" as an accommodation requiring unreasonable expense or difficulty, unreasonable interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system or a violation of any provision of a bona fide collective bargaining agreement. Further, the statute states that, in determining whether an accommodation constitutes an undue hardship, the factors considered shall include:

• The identifiable cost of the accommodation, including the costs of loss of productivity and of retaining or hiring employees or transferring employees from one facility to another, in relation to the size and operating cost of the employer.


• The number of individuals who will need the particular accommodation for a sincerely held religious observance or practice.


• For an employer with multiple facilities, the degree to which the geographic separateness or administrative or fiscal relationship of the facilities will make the accommodation more difficult or expensive.

The other statute concerns employment protections for employees on military leave in time of war or emergency.

Insurance Coverages for Federal Employees

There was an interesting article in one of the newspapers in the last few days about insurance coverages provided to federal employees who might be sued, and presumably not otherwise protected by immunity doctrines. Wright & Company, a Virginia-based insurance company, writes coverages. The article indicated that it provides $200,000 for legal fees incurred in an administrative proceeding, an additional $100,000 in fees for criminal investigations, and up to $1,000,000 for damages incurred in civil litigation. See: http://www.wrightandco.com/wmspage.cfm?parm1=23.

Corporate Social Responsibility

The January 19, 2008 issue of The Economist has a special report on corporate social responsibility. Reprints of the report are available. See www.economist.com/rights. A list of sources can be found at www.economist.com/specialreports and an audio interview with the author can be found at www.economist.com/audio.

For those who are interested, there is an ABA corporate social responsibility committee. If you should be interested in joining, please let me know and I will forward your name to the committee chair.

Hangman's Nooses

In the past week we have observed first Kelly Tilghman making an utter fool of herself on the Golf Channel when she said that the way to defeat Tiger Woods was to take him out and lynch him. That merited only a two week suspension. Then to add fuel to the fire, Golfweek distributes this past week's issue with a cover image of a noose for an article about Ms. Tilghman's idiocy. That thankfully merited the discharge of Dave Seanor, the editor.

Some of the obvious questions raised by these two incidents, other than being dumbfounded that supposedly intelligent people still just don't get it, would be the following:

• How come it took two days to apologize? You would have thought that within seconds after Ms. Tilghman uttered her stupidity, that she or someone associated with the channel, would have realized that what she said was over the top, and an apology should have issued within moments after she said what she said. Makes you wonder whom, in addition to Ms. Tilghman, at the Golf Channel simply doesn't get it.


• Makes you also wonder what the hiring practices are at the Golf Channel. I would assume that if there were African-Americans on the production team, that one of them would have spoken up immediately and demanded that she apologize on the air. I sure would like to see the Golf Channel's hiring statistics.


• That takes me to Golfweek magazine, the cover page, I am told, was vetted by a committee. So, it isn't just Mr. Seanor who doesn't get it, there are many others at the magazine who are simply clueless or worse than that, closet racists who took pleasure in insulting millions of our citizens. So, one wonders why Mr. Seanor is the only person who was disciplined. Yes, "the buck stops here", and the boss takes the fall, but the others ought not to go scot free.


• Finally, the incident, like the Golf Channel incident, has to raise questions about the hiring practices at Golfweek. Again, I sure would like to see some data.
  

The EEOC recently obtained a $2.5 million settlement on behalf of an African-American electrician who claimed he was harassed daily, including the display of nooses, at Lockheed-Martin. This was the largest settlement filed by EEOC on behalf of an individual. See: http://www.diversity.com/public/2919.cfm
http://www.eeoc.gov/press/1-2-08.html

Since Fiscal Year 2001, the EEOC has filed more than 30 lawsuits that involve the displaying of hangman’s nooses on the job. It recently settled for $290,000 such a claim against Helmerich & Payne International Drilling in Jackson, Mississippi, for $390,000 against Pemco Aeroplex in Birmingham Alabama, for $600,000 against AK Steel in Butler, Pennsylvania, and for more than $1,000,000 against Commercial Coating Service of Conroe, Texas. Tresa Baldas, EEOC Targets Workplace ‘Noose” Cases, National Law Journal, November 5, 2007. Available at: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1193735026861. See Stephanie Armour, “Racial Bias Suits Climb in Workplaces,” Asbury Park Press, Oct. 29, 2007, available at http://www.app.com/apps/pbcs.dll/article?AID=/20071029/BUSINESS/710290307/1003.

For additional coverage of the Golf week debacle see:

http://www.washingtonpost.com/wp-dyn/content/article/2008/01/19/AR2008011902439.html?sub=AR

http://www.nytimes.com/2008/01/19/sports/golf/19magazine.html?_r=1&scp=1&sq=golfweek+fires+editor&st=nyt&oref=slogin

For some startling discussion of the use of nooses as a form of racial discrimination in the workplace see:

http://query.nytimes.com/gst/fullpage.html?res=9804E3DF1238F933A25754C0A9669C8B63&scp=1&sq=nooses%2C+symbols+of+race+hatred&st=nyt

http://www.cnn.com/2007/US/11/01/nooses/index.html

http://www.washingtonpost.com/wp-dyn/content/article/2007/11/07/AR2007110702700.html

http://www.businessweek.com/magazine/content/01_31/b3743084.htm?chan=search

Sunrise Senior Living Sued by Former CFO

The former CFO of Sunrise Senior Living filed suit back in September in Fairfax County Circuit Court in Virginia, claiming that he was fired in retaliation for uncovering improper accounting practices. Sounds like a snooze, but, trust me it has gotten real interesting. In recent court filings, Sunrise disclosed that it had discovered "more than 25,000 unique pornographic images" on a company-owned computer used by the former CFO. That disclosure raises interesting issues regarding the former CFO's attempt to delete material from laptops provided to him by Sunrise. Sunrise alleges that the former CFO returned one of two laptops after deleting all active electronic files, and that only after a forensic examination did it find the evidence of pornography on parts of the hard drive that had not been wiped clean. The former CFO's attorney has asked the court to strike all references to the pornography, arguing that Sunrise's instructions regarding retention of materials related to accounting activities under investigation and did not require the retention of the "adult materials". We hope to obtain more information about this interesting case and report further in the future.

Baseball

General Sherman supposedly once said: "If I owned Texas and Hell, I would rent Texas and live in Hell." Quite obviously, Roger Clemens is betting that the good citizens of Harris County, Texas will prove the good general wrong. In what, in retrospect, may well be viewed as a serious blunder, Brian McNamee's lawyers threatened to sue Clemens if he went on 60 Minutes. Presumably, that lawsuit would have been filed in a more favorable venue than Harris County, Texas. But Rusty Hardin beat McNamee's lawyers to the punch, and filed a fourteen page complaint for defamation in Harris County before McNamee could file elsewhere. The complaint can be found at http://i.cnn.net/si/2008_images/2008.01.06_Clemens_Original_Petition.pdf.

I am beginning to get that itch that starts about this time every year - the itch to go south for spring training. Many players that I would love to go observe. Will Elijah Dukes get through spring training before he gets arrested yet again? How will D Train (Dontrelle Willis) do in the American League? And who is this latest deportee from Japan, Yosuke Kukudome, who will play right field for the Cubbies?

Damages

Put this under the category of crass commercialism. I co-chair a two day CLE conference sponsored by ALI-ABA on damage issues in employment cases which will be held February 7-8 at Georgetown Law School in Washington, D.C. If you are interested in registering, just contact ALI-ABA at 1-800-CLE-NEWS.

We have been silent for a few days as we have been in the midst of a titanic battle in court under the Computer Fraud and Abuse Act. Many interesting issues that I hope to later discuss, once the dust clears in the litigation.

I am a certified baseball nut. So, this blog will occasionally have posts about baseball, some that might marginally have something to do with employment law, and most probably just having to do with the greatest game that God ever invented. So, with that fair warning, I thought I would start the day with some baseball.

Baseball

Tuesday, February 26, forty days from today, will be the first spring training games. The Mets play Michigan at noon, and that should be the first game of the spring training schedule.

In the midst of all the embarrassments about the drug scandal, the sad news comes that one of the greats died the other day. Johnny Podres who helped pitch the Brooklyn Dodgers to their one World Series died last Sunday. Podres pitched Game 7 in 1955 against the Yankees in their park, and, of course, the Dodgers won, having lost the World Series seven times before. Podres mentored Curt Schilling. Schilling had very nice things to say on his blog the other day about Podres. In his obituary, he is described as "old-school", and that he "disdained technological advances such as computerized charts." He once said: "I don't know nothin' about computers, I know pitchers."

In embarrassing contrast, Major League Baseball appeared on Capitol Hill on Tuesday of this week. And, what did we learn. First, Miguel Tejada may get indicted for lying under oath in his 2005 Congressional testimony. As far as I am concerned, I would be a happy man if Bonds, Tejada, and the others share a jail cell for a long time. We also shockingly learned that Major League Baseball granted an extraordinary number of drug exemptions to Major League ballplayers in 2007, allowing them to use performance-enhancing drugs because of alleged medical disorders. Now, before I tell you the medical disorder du jour, put your seat belts on, the vast majority of the players requested exemptions for stimulants used to treat attention-deficit disorder. Give me a break.

Then, you have the embarrassing shill for the union, Donald Fehr, who probably should be indicted as a co-conspirator and placed in a dark dank jail cell for a long time. Finally, in stark contrast to Mr. Fehr who is deserving of zero respect, we have the Baseball Hall of Fame passing over Marvin Miller, and on the same ballot, selecting Bowie Kuhn. I could hardly think of anyone more deserving to be in the Hall of Fame than Marvin Miller, and, at least comparatively speaking, anyone less deserving than Bowie Kuhn. But, life ain't fair.

Enough baseball.

The Balkans

Okay, I guess after taking a few days off, I am having trouble getting back into the swing of things in terms of employment law. I read the other day an op-ed piece about potential trouble spots in the Balkans, and came away saying to myself that you probably could count on one hand the people in our government who have an awareness of the many powder keg issues in that area that could explode into unrest in the coming months. For example, how many of us have a clue as to what is Mitrovica, much less its significance in this area of the world. Now, if you passed that test, can you find for me on a map Abkhazia? How about South Ossetia? Okay, you're a genius and you've gotten the first three. How about Trans Dnestr? Or Nagorno-Karabakh? If you are seriously interested, what provoked this rather silly post was Anatol Liven's op-ed in the Financial Times of this past Monday entitled "Balkan Unrest Remains a Recipe for Disaster."

Jena Six

Remember a few weeks back when everyone was in a dither about the so-called Jena Six. While I do not profess to know the full story, Charlotte Allen's article entitled "Jena: A Case of the Amazing Disappearing Hate Crime" that appeared in the January 21 edition of The Weekly Standard, is well worth reading to get a very different perspective on the matter than you might get from reading the Washington Post and the New York Times.

D.C. School Legislation Authorizing Termination of Non-Union Employees Passes

On January 8, the D.C. City Council gave final approval to the legislation that would provide authority to the new Chancellor to terminate non-union employees without cause. See our prior post "District of Columbia Non-Union School Employees To Be At-Will", Washington, D.C., Maryland, and Virginia Employment and Labor Law Blog, Dec. 27, 2007 at http://robertfitzpatrick.blogspot.com/2007/12/supreme-court-update-adea-disparate.html. (For full text of Act, see http://dccouncil.us/lims/default.asp).

Court Monitors and Special Masters

There has been controversy recently surrounding the fact that former Attorney General Ashcroft's business, the Ashcroft Group, was selected by the United States Attorney in New Jersey to monitor a False Claims Act settlement. See Philip Shenon, "Ashcroft Deal Brings Scrutiny in Justice Dept.", The Washington Post, Jan. 10, 2008, available at http://www.nytimes.com/2008/01/10/washington/10justice.html ; "Ashcroft Rakes It In With DOJ Settlement", available at http://www.talkleft.com/story/2007/11/25/124652/21 ; and "Pascrell Calls on House Judiciary Committee To Examine Deferred Prosecution Agreements", available at http://pascrell.house.gov/issues2.cfm?id=12817. In contrast, I have not heard a whisper of protest that the Supreme Court this past Tuesday named San Francisco lawyer, Kristin Linsley Myles, to be a Special Master to gather evidence and report to the Court on a dispute between South Carolina and North Carolina over sharing the waters of the Catawba River. Ms. Myles is a former clerk for Justice Scalia. For an excellent discussion on Special Masters, see Margaret G. Farrell, The Role of Special Masters in Federal Litigation, ALI-ABA Course of Study Materials for Civil Practice and Litigation Techniques in the Federal Courts (Oct. 14-16, 1993). See also materials submitted by Francis E. McGovern entitled Appointing Special Masters and Other Judicial Adjuncts: A Handbook for Judges, ALI-ABA Course of Study Materials for Civil Practice and Litigation Techniques in Federal and State Courts (Mar. 7-9, 2007).

One wonders if there ought not be competitive bidding for these plumb assignments.

Supreme Court Update

Engquist v. Oregon Department of Agriculture, 478 F.3d 985 (9th Cir. 2007), petition for cert. in No. 07-474 granted, 76 U.S.L.W. 3364 (Jan. 11, 2008).

The issue presented is whether the Court's "rational basis" analysis in Village of Willowbrook v. Olech, 528 U.S. 562 (2000) applies to public employers who intentionally treat similarly situated employees differently with no rational bases for arbitrary, vindictive, or malicious reasons.

In Olech, the Court recognized the viability of " . . . equal protection claims brought by a 'class of one,' where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." The Olech Court held that a complaint alleging that the Village demanded a larger easement from the plaintiff than other similarly situated property owners; that the difference in treatment was irrational and wholly arbitrary; and that the Village ultimately relented in accepting a lesser easement was "sufficient to state a claim for relief under traditional equally protection analysis." 528 U.S. at 565.

Based upon Olech, seven Circuits recognized that public employees could state a rational basis equal protection claim against public employers to challenge individual employment decisions.
See Scarbrough v Morgan County Bd. Of Educ., 470 F3d 250, 260-61 (6th Cir 2006); Hill v Borough of Kutztown, 455 F3d 225, 239 (3d Cir 2006); Whiting v Univ of Miss, 451 F3d 339, 348-50 (5th Cir 2006); Neilson v D’Angelis, 409 F3d 100, 104 (2d Cir 2005); Levenstein v Salafsky, 414 F3d 767, 775-76 (7th Cir 2005); Campagna v Mass Dep’t of Envt’l Prot., 334 F3d 150, 156 (1st Cir 2003); and Bartell v Aurora Public Schools, 263 F3d 1143, 1148-49 (10th Cir 2001).

In contrast, the Ninth Circuit in Engquist, created an exception to Olech for public employment cases, predicating its exception on a concern that Olech was unnecessary due to the number of legal protections public employees enjoy, that the application of Olech to public employment would upset the common law at-will rule, and that such an exception would generate a flood of cases requiring federal review of a multitude of public agency personnel decisions. 478 F.3d at 993. See also Robert C. Farrell, Classes, Persons, Equal Protection, and Village of Whillowbrook v. Olech, 78 Wash. L. Rev. 367 (2003).

The Fourth Circuit has recognized Olech in Willis v. Marshall, 426 F.3d 251 (4th Cir. 2005), a non-employment case, where the plaintiff was barred from a municipal community center for "dirty dancing".

Huber v. Wal-Mart, 486 F.3d 480 (8th Cir. 2007), cert. granted, 128 S.Ct. 742 (Dec. 7, 2007), cert. dismissed, 2008 U.S. LEXIS 1095 (Jan. 14, 2008).

On Monday, the Supreme Court dismissed the Huber case as the parties had settled the matter. See our prior post, "Is The ADA An Affirmative Action Statute?", Washington, D.C., Maryland, and Virginia Employment and Labor Law Blog, at http://robertfitzpatrick.blogspot.com/2007/12/sprintunited-management-co-v-mendelsohn.html.

James v. Metro Government of Nashville, No. 07-367, cert denied, James v. Metro. Gov't, 2008 U.S. LEXIS 930 (U.S., Jan. 14, 2008)

The Court denied cert. in this case which presented the question whether a judge or jury has the role of deciding whether a worker has been retaliated against for protesting discrimination in the workplace.

This is the James' case second visit to the Supreme Court. Following the decision in Burlington Northern, James sought cert. and the Supreme Court, in light of its Burlington Northern decision vacated an earlier decision of the Sixth Circuit finding that certain retaliatory actions were not adverse employment actions under section 704(a) of Title VII. The Court remanded the case for reconsideration. 127 S. Ct. 336 (2006).

Thereafter, following a series of Sixth Circuit decisions, the Court of Appeals held on remand that it is for the Courts to determine whether the facts or allegations of a particular case meet the Burlington Northern standard. See McNeill v. U.S. Dep't of Labor, 2007 WL 1880599, *6 (6th Cir., June 27, 2007); Michael v. Catepillar Financial Service Corp., 2007 WL 2176220, *7 (6th Cir., July 31, 2007); Watson v. City of Cleveland, 202 Fed. Appx. 844, 855 (6th Cir. 2006).

Five other Circuits have adopted the holding of the Sixth Circuit that judges are to determine whether the Burlington Northern standard has been satisfied, and four other Circuits have held that juries should decide.

The Fourth Circuit in Csicsmann v. Sallada, 211 Fed. Appx. 163 (4th Cir. 2006), found that the alleged retaliatory act did not meet the Burlington Northern standard because "This court has never found" that a materially adverse action existed based on the type of retaliation alleged in that case. See also Parsons v. Wynne, 2007 WL 731398, *1 (4th Cir., Mar. 9, 2007). In contrast, the District of Columbia Circuit has held that it is for juries to decide whether a retaliatory act could have deterred protected conduct. See Vlikonja v. Gonzales, 466 F.3d 122 (D.C. Cir. 2006). See also Czekalski v. Peters, 475 F.3d 360, 365 (D.C. Cir. 2007).

John R. Sand & Gravel Co. v. United States (Jan. 8, 2008).

The majority opinion, written by Justice Breyer, relying on stare decisis, adheres to the Court's interpretation of a statute of limitations applicable to claims presented to the Court of Federal Claims (28 U.S.C. Section 2501) as jurisdictional, finding that the Court's decision in Irwin v. Dep't of Veteran's Affairs, 498 U.S. 89 (1990) was distinguishable. The Court, quoting Justice Brandeis, states that "in most matters it is more important that the applicable rule of law be settled than that it be settled right." Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (dissenting opinion).

Justice Ginsburg, in her dissent, responding to the stare decisis argument, states: "It damages the coherence of the law if we cling to outworn precedent at odds with later, more enlightened decisions." Justice Ginsburg also notes that 28 U.S.C. Section 2401(a) contains a time limit materially identical to that in Section 2501, and that the Courts of Appeals are divided on the question whether Section 2401(a) is jurisdictional. In conclusion, Justice Ginsburg states: "After today's decision, one will need a crystal ball to predict when this Court will reject, and when it will cling to, its prior decisions interpreting legislative texts."

For employment lawyers, I think the important question is whether the majority in any way suggests that Irwin, which is only seventeen years old, remains good law. Irwin held in a Title VII case against a federal agency that the statute of limitations is subject to equitable tolling - "namely, 'that the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States.'" (citation omitted). I do not read the majority as suggesting that Irwin is anything other than good law. Clearly, in cases against the federal government, where there is an existing interpretation of a statute of limitations as jurisdictional, it would appear that an overwhelming majority of this Supreme Court will not overturn those precedents even though they are out of step with more modern interpretations that statutes of limitations against the federal government should be treated the same as statutes of limitations against private parties. As the dissent noted, Oliver Wendell Holmes' famous quote, seems applicable here. "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from the blind imitation of the past." Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897).

Collaborative Law

As a follow-up on my earlier post, "Collaborative Law", Washington, D.C., Maryland, and Virginia Employment and Labor Law Blog, http://robertfitzpatrick.blogspot.com/2008/01/collaborative-law-in-health-care-and.html, January 11, 2008, on collaborative law, see Marlissa Briggett's article in the Boston College Law Magazine on the topic, www.bc.edu/schools/law/alumni/magazine/2006/winter/currents.html.