Dr. King's Birthday

We are closed Monday and will not be blogging Monday as we celebrate Dr. King's birthday.

My favorite quotation from Dr. King is: "The arc of the moral universe is long, but it bends toward justice." The quote was actually first uttered by Theodore Parker, an American Transcendentalist, referring then to the abolitionist movement.

Last October the world lost one its great voices, who was clearly inspired, in part, by Dr. King. I refer to the South African reggae singer Lucky Dube. One of my favorite lyrics of his are from his song "Different Colours / One People." One refrain goes as follows:

They were created in the image of God
And who are you to separate them
Bible says, he made man in his image
But it didn't say black or white
Look at me you see BLACK
I look at you I see WHITE
Now is the time to kick that away
And join me in my song


The Psychology of Race in America

I am not a big fan of Bill Moyers, but his interview last Friday evening, January 11th, with Shelby Steele regarding the racial psycho-dynamics of the Obama campaign was spot on. The transcript is available at http://www.pbs.org/moyers/journal/01112008/transcript2.html?print.


Supreme Court Update

Today's conference

The Court granted cert. in MetLife v. Glenn, 06-923; 461 F.3d, 660 (3rd Cir. 2006).

The Solicitor General had filed an invitation-brief (available at http://www.usdoj.gov/osg/briefs/2007/2pet/6invit/2006-0923.pet.ami.inv.pdf) in support of the petition for cert. in this case, which presents the recurring ERISA issue as to the standard of review that the trial court's should utilize in ERISA benefit cases when the plan administrator is the employer, and thus evaluates whether or not to pay claims out of its own pocket. The first question that the Solicitor recommended the Court grant cert. on is whether or not that constitutes a conflict of interest that must be considered in determining the standard of judicial review. The Solicitor also recommended to the Court that it order the parties to brief how the Courts should weigh such conflicts of interest in reviewing discretionary benefit determinations made by such a "dual-role administrator."

The courts have struggled with the delineation of a meaningful standard ever since Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989). As a commentator noted in the fall 2007 issue (vol. 37, no. 1) of The Brief, the publication of the Tort Trial & Insurance Practice Section of the ABA, "This sliding scale approach is hopelessly imprecise . . . " See Teresa S. Renaker, "State Regulation of Discretionary Clauses In Insured ERISA Plans," The Brief, Fall 2007, page 51. Ms. Renaker's fascinating article called my attention to developments occurring at the state regulatory and state legislative levels regarding discretionary clauses, like the one at issue in MetLife. The National Association of Insurance Commissioners and several states have moved to disallow discretionary clauses in certain insurance policies. On December 5, 2004, NAIC voted unanimously to adopt model legislation banning the use of discretionary clauses in disability insurance policies. This model legislation amended the NAIC's Model Act 42 of 2002, which banned discretionary clauses in health insurance policies, expanding it to reach disability policies as well. The article points out that the Federal District Courts are now grappling with the effect in those states that have by regulation banned discretionary clauses, on the standard of review in ERISA cases like MetLife. Some courts have found discretionary clauses invalid, and have applied de novo review. Other courts have continued to apply discretionary review. And, some courts have held that the states do not have the authority to regulate in the area of discretionary clauses.So, if you represent a client in a benefit determination case, in addition to keeping your eye on MetLife, you need to determine what, if any, action the applicable state insurance commissioner has taken in light of NAIC's model legislation.


The Court also granted cert. in Meacham v. Knolls Atomic Power Lab., 06-1505; 461 F.3d 134 (2d Cir. 2006).

The Solicitor General had filed an invite-brief with the Court on December 21, 2007 (available at http://www.scotusblog.com/wp/wp-content/uploads/2007/12/meachamcvsg.pdf) in Meacham v. Knolls Atomic Power Lab., No., recommending that the Court grant cert., limited to the issue of which party has the burden of persuasion in an ADEA disparate impact case to establish "reasonable factor other than age." The government's brief argues, in contrast to the Second Circuit's decision, that the burden should be upon the employer. The government's brief argues that the Court should not accept cert. on the second issue presented by the plaintiffs' petition which is whether an employer's practice of conferring broad, discretionary authority upon individual managers to decide which employees to lay off during a reduction in force constitutes a "reasonable factor other than age."If the Court accepts cert. in Meacham, this will be its second visit to the Supreme Court. When the Court issued its decision in Smith v. City of Jackson, 544 U.S. 228 (2005), holding that disparate impact claims are cognizable under the ADEA, the Court granted the petition for cert. in Meacham I (381 F.3d 61) and remanded it for reconsideration in light of Smith. 554 U.S. 957 (2005).On remand, the Second Circuit held that the employee had the burden of persuasion with respect to the "reasonableness" of the employer's proffered business justification under the ADEA disparate-impact framework. This holding was in agreement with the Tenth Circuit's opinion in Pippen v. Burlington Res. Oil & Gas Co., 440 F.3d 1186, 1200 (10th Cir. 2006). The Second Circuit also found that employment practices based on discretionary decisionmaking are generally immune from challenge under the ADEA, stating: "Any system that makes employment decisions in part on such subjective grounds as flexibility and critically may result in outcomes that disproportionately impact older workers; but at least to the extent that the decisions are made by managers who are in day-to-day supervisory relationships with their employees, such a system advances business objectives that will usually be reasonable."Judge Pooler dissented, holding that the RFOA creates an affirmative defense upon which the defendant bears the burden of persuasion.


The Court also granted cert. in Crawford v. Metro. Gov't of Nashville & Davidson County, 06-1595; 211 Fed. Appx. 373, 2006 U.S. App. LEXIS 28280 (6th Cir. 2006) (petition for cert. available at http://www.scotusblog.com/movabletype/archives/06-1595_pet.pdf).

The 6th Circuit held that the anti-retaliation provisions of Title VII were not violated by the employer’s allegedly retaliatory discharge of plaintiff who had cooperated in the employer’s internal investigation of a co-worker’s sexual harassment allegations against a supervisor, where there was no pending charge with the EEOC.


AT&T Corp. v. Hulteen, 07-543; 498 F.3d 1001 (9th Cir. 2006)

The Court had this case on for decision at conference today whether to grant cert., and, as best I can determine, took no action today one way or the other. The issue in this case is whether Title VII permits an employer, when setting retirement benefits, to discriminate between who took pregnancy disability leave before the Pregnancy Discrimination Act came into effect and other employees who took any other kind of temporary disability leave during that same period.


January 11th Conference

Taylor v. Progress Energy, Inc., 493 F.3d 454 (4th Cir. 2007), re-aff’g 415 F.3d 364 (4th Cir. 2005, vacated and remanded by 2006 U.S. App. LEXIS 15744 (4th Cir. June 14, 2006), petition for cert. filed on October 22, 2007, available at http://www.scotusblog.com/wp/wp-content/uploads/2007/10/progresspetitionappendix.pdf.

The Fourth Circuit, on rehearing and now with the benefit of the amicus brief from the Department of Labor, which disagreed with the Court’s interpretation of a DOL regulation prohibiting waivers of FMLA claims, nonetheless reaffirmed its earlier ruling. Judge Duncan dissented. The Fourth Circuit, disagreeing with the Fifth Circuit’s holding in Faris v. Williams WPCI, Inc., 332 F.3d 316 (5th Cir. 2003), held DOL regulation that prohibits waivers of FMLA claims absent DOL or court approval should be upheld. The Fifth Circuit had held that the regulation only barred the prospective waiver of substantive FMLA rights; whereas the Fourth Circuit held that the regulation applied to all waivers, both retrospective and prospective. In addition, the Fourth Circuit held that the regulation applies to all FMLA rights, both substantive and proscriptive, the latter preventing discrimination and retaliation.

At the Court's January 11th conference, the Court had requested that the Solicitor General file an invitation-brief. Now, this should get real interest. The Solicitor of Labor filled an amicus brief at the Fourth Circuit when the petition for rehearing was filed, and the panel rejected the Department's interpretation of the statute. The Supreme Court, in Auer and Coke, deferred to the Department's interpretation as expressed in Supreme Court briefs. In Auer, the Department's interpretation was first expressed in the Supreme Court brief, and the Court genuflected to it. The Fourth Circuit in Progress Energy, did not genuflect. Should be interesting.


Engquist Redux

When the Supreme Court took Engquist the other day (http://robertfitzpatrick.blogspot.com/2008/01/we-have-been-silent-for-few-days-as-we.html), it passed on a fascinating second issue that the cert. petition presented, that is whether a state "split recovery" punitive damages statute violates the Takings Clause of the Constitution.

The supreme courts in six states have upheld the statutes against federal takings challenges. Cheatham v. Pohle, 789 NE 2d 467, 474075 (Ind. 2003); Evans v. State, 56 P.3d 1046, 1058 (Alaska 2002); Mack Trucks, Inc. v. Conkle, 263 Ga 539, 436, SE 2d 635, 639 (1993); Gordon v. State, 608 So 2d. 800, 801-02 (Fla. 1992) (per curiam); Shepherd Components, Inc. v. Brice Petrides-Donohue & Associates, 473 NW 2d 612, 619 (Iowa 1991). But two state supreme courts have held the statutes violate the federal Takings Clause. Kirk v. Denver Publishing Co. 818 P 2d 262, 273 (Colo. 1991); Smith v. Price Development Co., 125 P 3d 945 (Utah 2005). One U.S. District Court has held that a split recovery statute violates the Excessive Fines Clause. McBride v. Gen. Motors, Corp., 737 F. Supp 1563, 1578 (MD Ga. 1990).


Customer Preference

There is a recent customer preference case, Simple v. Walgreen's Co., 2007 U.S. App. LEXIS 29729 (7th Cir., Nov. 14, 2007), where Walgreen's attempted to defend assignments to its stores based upon racial demographic data, attempting to justify the denial to an African American of a promotion to manage a store in Pontiac, Michigan because Pontiac was not ready to have a black manager. Judge Posner rejected this bit of nonsense out of hand.

Historically, the courts have been loathe to bless customer preference as a justification for employment practices based on a protected characteristic. See Diaz v. Pan Am. World Airways, 442 F.2d 385 (5th Cir. 1970); Gerdom v. Continental Airlines, Inc., 692 F.2d 602 (9th Cir. 1982); Fernandez v. Wynn Oil Co., 653 F.2d 1273 (9th Cir. 1981); 29 C.F.R. 1604.2(a)(1)(iii) (preferences of co-workers or customers are not a BFOQ).

Now, what's interesting is what is going on beneath the radar screen in the interaction between law firms and their clients. Increasingly, I hear reports of clients insisting that, if the law firm wants their business, the law firm must assign African Americans to work on the account. Why is this not as odious in the eyes of the law as Walgreen's saying that Pontiac is not ready for a black manager at its store there?


Background Checks

The Ninth Circuit in Nelson v. National Aeronautics and Space Administration, 2008 U.S. App. LEXIS 498 (9th Cir., Jan. 11, 2008), issued an opinion allowing scientists at NASA's Jet Propulsion Laboratory to continue working until the question of their privacy challenge to the requirement of a new domestic security rule that they submit to background checks was decided.


Black Holes

Some can't sleep nights for fear that an asteroid or meteorite will collide with Earth during the night. Well, for those of you who comfortably sleep despite asteroid phobia and meteorite phobia, let me share with you the latest scientific discovery which undoubtedly will lead to more insomnia. Professor Kelly Holley-Bockelmann of Vanderbilt University has just presented at the American Astronomical Society's annual meeting about renegade black holes roaming the Milky Way. She says that there are breakaway black holes, that have broken away from that giant black hole that sits at the center of our galaxy, and they are, as best she can discern, indiscriminately roaming the Milky Way. They are, of course, invisible, although they do emit Hawking radition. So, any second now, we could be sucked in to a black hole, and no longer exist. The title alone of an article from the Australian News is disquieting -- "Hundreds of hungry black holes may me lurking in our milky way galaxy, waiting to gooble unsuspecting planets and stars that cross their paths." Night, night.

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.

E-Discovery

So, you are headed to a Federal Civil Rule 26(f) "meet and confer" conference regarding e-discovery. How do you prepare and what should be discussed? Craig Ball has an excellent piece in Law Technology News entitled "Ball In Your Court: Ask The Right Questions", which can be found at http://www.lawtechnews.com/r5/survey.asp (subscription only). Craig has 50 questions to consider asking.


Off-label False Claims Act Cases

In the last few days, I have made several mentions of off-label FCA cases. There is an interesting off-label Rule 9(b) decision from Judge Kennelly in U.S. Ex Rel. Kennedy v. Aventis Pharmaceuticals, Inc., 2007 WL 2681701 (N.D. Ill., Sept. 13, 2007) and a subsequent denial of a motion for reconsideration found at 2007 WL 3145010 (N.D. Ill., Oct. 23, 2007). In essence, the Judge ruled that an off-label pharmaceutical case survives Rule 9(b) scrutiny even though the complaint did not detail an individual claim that was actually submitted to the government. And, in denying Aventis' motion for reconsideration, the Judge also declined a request for an immediate interlocutory appeal, distinguishing U.S. Ex Rel. Clausen v. Laboratory Corp. of America, Inc., 290 F.3d 1301 (11th Cir. 2002) and U.S. Ex Rel. Russell v. Epic Health Care Management Group, 193 F.3d 304 (5th Cir. 1999).

Disparate Impact

The other day, we wrote about the Supreme Court's request of the Solicitor General for briefing on the testing issues in N.Y. City Board of Education v. Gulino. See http://robertfitzpatrick.blogspot.com/2007/12/board-of-education-of-new-york-city.html. The EEOC has issued a fact sheet on testing which can be found at http://www.eeoc.gov/policy/docs/factemployment_procedures.html, indicating EEOC's continuing interest in challenging tests that have a disparate impact on the basis of race.

While I am not yet prepared to fully dissect the opinion, there is potentially a very important decision from the Sixth Circuit regarding disparate impact and the stringency of the business-necessity defense. The Sixth Circuit's case arises not in an employment context, but in a Fair Housing Act case. Nonetheless, its analysis, and the debate among the judges may well carry over into continuing debates regarding disparate impact and the business-necessity doctrine in employment cases. See Graoch v. Louisville-Jefferson County Metro Human Relations Commission, 2007 U.S. App. LEXIS 26883 (6th Cir., Nov. 21, 2007).

Section 8 Voucher Program

The Graoch case involved the Section 8 voucher program, which is a voluntary program through which the federal government provides rent subsidies to eligible low-income families who rent from participating landlords. While at a later date, I will discuss Graoch's analysis of the business-necessity defense, Graoch is interesting also because it is the second case this month involving the Section 8 program. In Graoch, a landlord, in essence, has been prohibited from withdrawing from a so-called voluntary federal program. In a case before the Maryland Court of Appeals, the landlord was required to participate in the Section 8 program on the ground that a refusal to participate would constitute "source of income" discrimination under the Montgomery County, Maryland anti-discrimination law, MCC, Ch. 27, §§ 27-1 through 27-63. See Montgomery County v. Glenmont Hills Assoc., 2007 Md. LEXIS 719 (Md. 2007).

Ad Damnum Clause

Last week, we summarized the holding in Hoang v. Hewitt Avenue Associates, LLC (see http://robertfitzpatrick.blogspot.com/2007/12/there-is-lots-going-on-at-end-of-week.html). As promised, a few thoughts regarding the implications of this decision. At first blush, one sympathizes with the litigant whose judgment of $1.89 million is reduced to a mere $100,000 because the ad damnum clause in the original complaint sought damages "in excess of $100,000." But, sympathy begins to erode when one sees that the victorious plaintiff never once sought to amend the ad damnum clause to advise the defendant that the plaintiff sought not a mere $100,000, but far, far more. The simple best practice tip to be taken away from this Maryland case is that one should timely amend the ad damnum clause. The Court of Appeals seems to indicate that timely amendments that do not blindside the defense ought to be routinely granted.

Layoffs and ERISA Section 510 Claims

Recently, the Supreme Court denied cert. in Eichom v. AT&T Corp., 484 F.3d 644 (3d 2007). See also the prior opinion in Eichom I of the Third Circuit at 248 F.3d 131 (3d 2001).

As pointed out by guest blogger Colleen Medill in the Workplace Prof blog, "Eichom is symbolic of a new genre of Section 510 claims where the claim of interference is not made by a lone individual who allegedly was targeted for retaliation, but rather stems from a corporation restructuring where employee benefits (most notably, their costs) are a factor in how the reorganization is structured." So, with the possibility of recession looming on the horizon, and the inevitable increase in layoffs, plaintiff and defense lawyers both need to be mindful, as always, of age discrimination claims under both federal and state law, WARN Act claims, challenges to releases under OWBPA, and now this new genre of claim - - a Section 510 ERISA claim.

Mind-reading To Prove Racial Bias

The American Psychological Association (I note using federal grant money from the National Institute of Mental Health) has issued a report entitled "Functional Magnetic Resonance Imaging: A New Research Tool" in which it states at the outset: "A brain scanning technology called functional magnetic resonance imaging (fMRI) isn't quite a mind-reader, but it comes close." The article goes on to opine that the results of fMRI may be able to demonstrate racial prejudice. The report states that: "Even though all of the participants [in research performed by a psychologist] said they weren't prejudiced, their brains told a different story."

Having decades ago fought the good fight over the use of the so-called lie detector in the workplace, one is saddened to see an organization like the APA suggesting that a brain scan might reveal prejudice. With this report in hand, let me count the days before a plaintiff's attorney argues to the court that the alleged discriminating official should have a fMRI administered in a racial prejudice case. Such nonsense can only make those who pine for the good ol' days of the STASI and the gulag happy. Many, in the wake of the pendulum swinging too far to prohibit conduct as sex harassment, have joked about the "sex police". Now, will the race robocops attach scans to our brains to ferret out those who need to be sent to reeducation camps. Garbage like this from the APA belongs one place only - - the trash can. And, NIMH, or at least the taxpayers, should be aghast that our scarce resources are being wasted on garbage like this.

Attention Deficit Disorder

Attention Deficit Disorder, many times called Attention Deficit Hyperactivity Disorder, has been the subject of much litigation under the ADA, both in the employment and educational contexts. Recently, Judge Oliver of the Northern District of Ohio in Braud v. Cuyahoga Valley Career Center, 2007 U.S. U.S. Dist. LEXIS 72123 (N.D. Ohio, Sept. 27, 2007), held that ADHD is not a disability within the meaning of the Americans with Disabilities Act, finding that ADHD did not substantially limit him in any major life activity. In doing so, Judge Oliver opined that the courts "have viewed with skepticism the claims of plaintiffs that have been diagnosed with ADHD who claim to be disabled." See the opinions of Judge Lamberth in Steere v. The George Washington University, et al., 2005 U.S. Dist. LEXIS 4313 (D.D.C., Mar. 22, 2005) and Steere v. The George Washington University School of Medicine and Health Sciences, 2006 U.S. Dist. LEXIS 46671 (D.D.C., July 12, 2006).

Retaliation - Protected Activity

For employers, it is often times difficult to draw the line between what constitutes "protected activity" and what is simply unacceptable bellyaching that can be the basis for termination. Recently, the Sixth Circuit addressed this recurring issue in Fox v. Eagle Distributing Co., 2007 U.S. App. LEXIS 28887 (6th Cir., Dec. 14, 2007). The employee in Fox had filed a charge of discrimination with EEOC, which is clearly protected activity. Thereafter, he repeatedly told co-workers and customers that his employer was out to get him and that he was going to sue the company for millions. In his complaints to customers, he never claimed that his employer was discriminating against him. When the company was informed of what he had been saying to customers, he was fired for a "poor attitude". Not surprisingly, Fox contended that his termination was retaliatory. The Sixth Circuit held that he had not engaged in protected activity because he had not complained to customers that he was a victim of discrimination by his employer.

Clearly, Eagle Distributing Co. is the courageous exception to the rule. Ask yourself - - if you were asked to advise the employer in these circumstances where an EEOC charge has already been filed, and the employee is complaining to customers, would you recommend that your client terminate, and run the risk of the inevitable retaliation claim. Tip of the hat to Eagle Distributing Co.

There is lots going on at the end of the week, and I will try to touch on some of the major developments.

Supreme Court Update

Yesterday, a petition for cert. was filed in Murphy v. IRS, 493 F.3d 170 (D.C. Cir. 2007)(rehearing denied en banc, 2007 U.S. App. LEXIS 22173 (D.C. Cir., Sept. 14, 2007)). This is the tax case that attracted so much attention this year. Initially, the D.C. Circuit held that it was unconstitutional to tax compensatory damages for non-physical injuries, holding that it was not taxable income. This extraordinary decision was challenged on petition for rehearing, and the panel that originally issued the decision did a complete flip, and held that such damages are taxable. Ms. Murphy is represented by David K. Colapinto, General Counsel of the National Whistleblower Center. You can go to their website and click on the petition filed yesterday with the Court. See http://www.whistleblowers.org/.

Maryland Wage Payment & Collection Act

Yesterday, the Maryland Court of Appeals has granted the petition for cert. in Hoffeld v. Shepherd Electric, 2007 Md. App. LEXIS 127 (Md. Ct. Spec. App., Sept. 24, 2007)(case No. 106, Sept. Term 2007 in Maryland Court of Appeals). The Court will now review the decision of the Maryland Court of Special Appeals which rejected the claim of a salesman who contended that he had been denied commissions in violation of the Maryland Wage Payment and Collection Law. The salesman argued that he was due commissions on sales that he had made before his termination. The court distinguished the fact situation in Hoffeld from that in Medex v. McCabe, 811 A.2d 297 (Md. 2002). The court found that in McCabe the employee had done all the work necessary to earn the commission, and had been denied the commission solely because he was not employed on the scheduled payment date. In distinguishing that case, the court stated: “Unlike Medex, commissions in this case were not linked to the arbitrary factor of employment, but to a reasonable job requirement.” In the instant case, while the salesman had made the sale prior to his departure, the salesman also was responsible for handling change orders and resolving problems for clients before and after orders shipped. Under the company’s unwritten policy, commissions were not considered to have been “earned” until the shipment/invoice date. The company explained that its policy was based on the fact that sometimes orders were modified before shipment, and clients were permitted to cancel orders before shipment.


Ad Damnum Clauses In Maryland

Last Friday, December 7, 2007, the Maryland Court of Special Appeals in Hoang v. Hewitt Avenue Associates, LLC, 2007 Md. App. LEXIS 152 (Md. Ct. Spec. App., Dec. 7, 2007)
(CSA #1048, Sept. Term 2005), held that a damage award of $1.89 million must be reduced to $100,000 because Plaintiff's ad damnum clause stated that he sought damages "in excess of" $100,000. Rule 2-305 states that "a demand for a money judgment shall include the amount sought." The Court held that the ad damnum clause in this case did not satisfy the plain language of the rule.

We will discuss the implications of this case at length next week.

D.C. Federal Court Orders Defendant To Restore Backup Tapes

In Disability Rights Council of Greater Washington v. Washington Metro. Area Transit Auth., 242 F.R.D. 139, 2007 U.S. Dist. LEXIS 39605, 2007 WL 1585452 (D.D.C. June 1, 2007), an ADA case, Magistrate Judge Facciola granted Plaintiff's motion, and ordered the Defendant to restore and search backup tapes for discoverable information. The Defendant's email system was programmed to automatically delete all emails after 60 days. Subsequently to the filing of the lawsuit, the Defendant's failed to take steps to prevent the deletions. In response to Plaintiff's motion, WMATA argued that for it to do so would impose an undue burden and expense.

Magistrate Judge Facciola, in rejecting that argument, stated: "It reminds me too much of Leo Kostens' definition of chutzpah: 'that quality enshrined in a man who, having killed his mother and his father, throws himself on the mercy of the court because he is an orphan.'" (footnote omitted). The Court granted Plaintiff's motion and held that while the amendments to the Rules "initially relieve a party from producing electronically stored information that is not reasonably accessible because of undue burden and cost, I am anything but certain that I should permit a party who has failed to preserve accessible information without cause to then complain about the inaccessibility of the only electronically stored information that remains."

Chemical Sensitivity and The Americans With Disabilities Act

McBride v. City of Detroit, 2007 U.S. Dist. LEXIS 87391 (E.D. Mich., Nov. 28, 2007). In this case, Judge Zatkoff denied Defendant's motion to dismiss an ADA case where the Plaintiff claimed that she suffered from chemical sensitivity to perfume, body lotion, aftershave, cologne, deodorant and hairspray, among others. She claimed that exposure caused headaches, nausea, chest tightness, cough and rhinitis (to wit, a runny nose). She alleged that chemical sensitivity is a physiological disorder and is thus a physical impairment. She alleged that the chemical sensitivity substantially limited her major life activities of breathing, engaging in social activities and reproduction. She requested, as a reasonable accommodation, that the Defendant, City of Detroit, implement and enforce a " no scent policy", prohibiting the wearing of scents or perfumes in the workplace.

One can only imagine what the offices at City Hall in Detroit would smell like if Plaintiff were to win this case and force this accommodation upon the City.

Query: Does this case make any sense?

In contrast, District Judge Motz, back in 2000 in Comber v. Prologue, Inc., 2000 U.S. Dist. LEXIS 16331 (D.Md., Sept. 28, 2000), held that Plaintiff's evidence in an ADA case of her "multiple chemical sensitivity syndrome" was inadmissible, because it did not meet the Daubert standard for the admissibility of scientific evidence, relying upon holdings of the Fourth, Seventh and Tenth Circuits that evidence of MCSS was inadmissible. Apparently, the City of Detroit, did not call these authorities to the attention of Judge Zatkoff.

Federal Legislative Update

Trade and Globalization Assistance Act (H.R. 3920)

The House of Representatives on October 31, 2007 passed H.R. 3920 by a vote of 264-157. The text of the bill can be found at http://www.govtrack.us/congress/bill.xpd?bill=h110-3920. The proposed legislation amends the WARN Act to require 90 days of notice to employees, instead of the current 60 days, of impending job layoffs due to plant closings and mass layoffs as a result of globalization. The bill also provides to impacted employees more time to receive continuation of their health care coverage under COBRA.