Friday, February 12, 2016

The Fourth Circuit Loves Plaintiff's Lawyers

Valentine, Valentine, Valentine
O’ won’t you please be mine
You’re such a sweetheart
With love full of sweet tarts

This Valentine’s day is particularly sweet for the plaintiff-employee bar, as the Fourth Circuit repeatedly, in recent times, has been issuing opinions that are quite favorable to employees.  We review a dozen such opinions, maybe better described as a dozen “red roses” or a dozen chocolate coated strawberries:

Our first case is Cruz v. Maypa, 773 F.3d 138 (4th Cir. 2014) in which Judge Gregory, writing for the panel, held that the failure to post the DoL-issued notice of FLSA rights in a conspicuous place in the workplace can result in the tolling of the FLSA statute of limitations.  In doing so, the Court was reaffirming its holding in Vance v. Whirlpool Corp., 716 F.2d 1010 (4th Cir. 1983), in which a panel of that Court had found the 180-day filing requirement of ADEA was tolled by reason of the employer’s failure to post the statutory notice of rights under ADEA.  In addition to the foregoing holding, the panel also held that when a statute of limitations is extended by the legislature, unless the legislature explicitly states otherwise, the extension applies retroactively to any claim under the statute at issue that had not expired under the old limitations statute at the time the legislation extending the statute was enacted. 

Our second case is Lorenzo v. Prime Commc’ns, L.P., 806 F.3d 777 (4th Cir. 2015), in which Judge Niemeyer, writing for the panel, held that an arbitration clause contained in an employee handbook that also contained a contractual disclaimer was unenforceable under North Carolina law.  In addition, the Court held that a class-action certification order is appealable under Federal Civil Rule 23(f) only if the interlocutory appeal is filed within fourteen calendar days of the entry of the class certification order.  In Lorenzo, counsel mistakenly filed seventeen days after the entry of the order, apparently thinking that the client got three extra days for “service”.  The Court emphasized that the language of Rule 23(f) does not permit the three additional days, as time runs from the entry of the order, not from any form of service.  Of course, the appeal is ultimately permissive, as the Court of Appeals must grant permission to review if an interlocutory appeal request is timely made. 
Earlier, in 2013, the Court, Judge Davis writing for the panel, in Noohi v. Toll Bros., 708 F.3d 599 (4th Cir. 2013), applied Maryland law to hold that a one-sided arbitration agreement lacked mutuality of consideration.  There, in a non-employment case, the purchaser was required to arbitrate disputes, but the seller was not.  In so doing, the Court relied on Cheek v. United Healthcare of Mid-Atl., Inc., 378 Md. 139, 835 A.2d 656 (2003) (holding that an “employer’s unfettered discretion to change the arbitration agreement rendered its promise to arbitrate illusory.”)

Our third case is Pryor v. United Airlines, Inc., 791 F.3d 488 (4th Cir. 2015).  In Pryor, the Fourth Circuit, with Judge Gregory writing for the panel, held that the employer could be held liable for a hostile work environment created by an anonymous harasser.  Here, an African-American flight attendant received a racist death threat anonymously left in her company mailbox.  She alleged that United failed to adequately respond.  The panel reversed Judge Brinkema, of the Eastern District of Virginia, who had granted summary judgment, and remanded to the lower court for further proceedings.  Earlier, in 2014, in Freeman v. Dal-Tile Corp., 750 F.3d 413 (4th Cir. 2014), Judge Shedd, writing for the panel with Judge Niemeyer concurring in part and dissenting in part, the Court denied the employer’s motion for summary judgment in a Title VII and Section 1981 race and gender hostile work environment case, holding that there was a triable issue of fact as to whether the employee was repeatedly subjected to unwelcome statements and conduct by a customer, which created an abusive atmosphere, of which the employer should have known and to which the employer failed to adequately respond. 

Our fourth case is Jacobs v. N.C. Admin. Office of the Cts., 780 F.3d 562 (4th Cir. 2015).  In Jacobs, Judge Floyd, writing for the panel, held that the employer had not properly accommodated the plaintiff’s disability, social anxiety disorder.  In doing so, the Court made a number of important holdings, including:

  1. “Interacting with others” is a major life activity;
  2. The amended ADA rejected, as imposing “too high a standard” the old rule that to prove a disability, one needed to show that the plaintiff was “significantly restricted” in a major life activity.  Here, the Court held: “A person need not live as a hermit in order to be ‘substantially limited’ in interacting with others”;
  3. Temporal proximity of three weeks, alone, can establish causation;
  4.  Piling on can be proof of pretext where, as here, the defense stated multiple reasons for termination at the time of termination, and then added more before EEOC, and yet more before the district court;
  5. The failure to document may be evidence of pretext.  As the Court noted here: “Even more striking is that no one at the [employer] documented any of the justifications (including those raised at the time of termination) in any way”; 
  6. The Court permitted surreptitious tape recordings into evidence, and heavily relied upon them in finding genuine factual disputes;
  7.  A reasonable accommodation may require job restructuring; and
  8.  A failure to discuss Plaintiff’s accommodation request could be found to be an act of bad faith.

Our fifth case is Reyazuddin v. Montgomery Cnty., Md., 789 F.3d 407 (4th Cir. 2015), in which Judge Diaz wrote for the panel.  In this Rehabilitation Act case, under Section 504 thereof, a blind employee challenged the manner in which the County utilized software in a new call center, software that was not accessible to blind employees.  Summary judgment having been entered below, the panel found that the lower court, on remand, should further explore the undue hardship defense put forth by the County.  In addition, there is one subsidiary holding favorable to the defense in which the Court held that public employers are not subject to suit for disability employment discrimination under Title II of the ADA.

Our sixth case is Butler v. Drive Automotive Indus. of Am., Inc., 793 F.3d 404 (4th Cir. 2015), Judge Floyd writing for the panel.  In Butler the Court held that Title VII provides for joint employer liability.  In so holding, the Court articulated the so-called “hybrid” test for joint employment.

Our seventh case is Brown v. Nucor Corp., 576 F.3d 149 (4th Cir. 2015), Judge Gregory writing a sixty-three page opinion for the majority, and Judge Agee writing a ninety-page dissent.  The majority, Judges Gregory and Keenan, vacated the lower court’s decertification of a discriminatory job promotion class action and remanded to the District Court with instructions to certify the class. 
Earlier, the Court, in 2013, in Scott v. Family Dollar Stores, Inc., 733 F.3d 105 (4th Cir. 2013), with Judge Gregory writing for the majority and Judge Wilkinson dissenting, the majority distinguished Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), finding that the district court erred in holding that Wal-Mart precluded allegations of “general policy” discrimination. 

Our eighth case is Foster v. Univ. of Md.-E. Shore, 787 F.3d 243 (4th Cir. 2015), Judge Floyd writing for the panel, in which the Court held that the 2013 Supreme Court decision in Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013) did not alter the McDonnell-Douglas analysis for retaliation claims. 

Our ninth case is DeMasters v. Carilion Clinic, 796 F.3d 409 (4th Cir. 2015), a highly unusual case in which all members of the Fourth Circuit recused themselves and a panel composed entirely of judges from the Third Circuit heard the case.  Judge Krause, writing for that panel, rejected the so-called “Manager Rule”, a rule invoked by management to prevent an employee whose job responsibilities include reporting discrimination claims from seeking protection under Title VII’s anti-retaliation clause. 

Our tenth case is Bland v. Roberts, 730 F.3d 368 (4th Cir. 2013) in which Chief Judge Traxler, wrote for the majority (Judge Hollander concurred in part and dissented in part) and held that, where a sheriff refused to reappoint one of his deputies because the deputy had “liked” his opponent on Facebook, the Facebook “like” constituted “pure speech” and a form of “symbolic expression” which was protected under the First Amendment. 

Our eleventh case is Summers v. Altarum Inst., Corp., 740 F.3d 325 (4th Cir. 2014), Judge Motz writing for the panel, held that the Congress, amending the ADA, intended to cover temporary disabilities, thus permitting the plaintiff, who had been injured while exiting a commuter train on the way to work, to proceed with his ADA case. 

Our twelfth case is Boyer-Liberto v. Fontainebleau, 752 F.3d 350 (4th Cir. 2014), reh’g en banc 786 F.3d 264 (4th Cir. 2015).  Judge King writing for twelve judges, with Judge Niemeyer dissenting writing for three judges, held that a co-worker’s use of the epithet “porch monkey”, standing alone, was sufficiently severe such that a reasonable jury could find there to be a racially hostile work environment. 

Please be sure to visit our website at