Posted by marykeating on August 16, 2011 under Sex-based discrimination, retaliation, sexual harassment | 
The Fourth Circuit recently overturned a decision dismissing the sexual harassment claim of a former Baltimore City employee, Katrina Okoli. Contrary to the trial court, the Court of Appeals first decided that the behavior of the supervisor created a hostile work environment. The behavior ranged from touching, sharing his fantasies of sex in a Jacuzzi, to yelling.The Court also determined that Ms. Okoli showed that her rejection of the boss’s advances led directly to her firing. It deemed “deeply suspicious” the fact that the plaintiff’s boss fired her “only hours after she culminated her rejection of him by complaining to the Mayor.” It also permits the retaliation case to go to trial.
The entire panel agreed that the unwelcome overtures and outright requests for sexual conduct amounted to sexual harassment. The concurring opinion discussed the ambiguity of the evidence that tied her job to her acceptance of the sexual advances. It also gave more credit to the City’s claim that the plaintiff was scheduled to be fired even before she complained to the Mayor. The important point, however, is that the jury should be able to decide whether the reasons for her termination were pretexts, given to cover up the discriminatory conduct.
It is still difficult for plaintiffs to get to trial in employment discrimination cases. But the Fourth Circuit has changed over the last few years, and this decision may be a harbinger of fewer cases decided without a trial.
Posted by marykeating on June 18, 2011 under Race-based discrimination |
A recent case from the local District Court, just affirmed by the Fourth Circuit (the opinion was by retired Justice O’Connor), emphasizes the difficulty of establishing discrimination in workplaces where the discrimination takes the form of “death by a thousand cuts.” A Haitian worker, Geraldine Lauture, alleged that she was disciplined more severely than white employees for her infractions, particularly after an altercation with a white worker. But the employer hospital showed that some white employees had been given the same discipline for the same infraction, and therefore a finding of discrimination was impossible. The District Court stated it this way: “a consideration of the whole record, and not simply of individual cases within it,” allowed the employer to show that certain white employees, who may not have been known to the plaintiff, were also disciplined with the same measures.
The Court further refused to engage in a factual inquiry whether the errors the hospital said the employee made were really made. The hospital “is not required to conclusively substantiate her poor performance, only that it reasonably believed her performance to be deserving of discipline.”
We often see employers papering the files of employees before terminating them. This is good practice, it forces employers to deliberate over their decisions, and ideally precludes discriminatory decisions on demotions, discipline and termination. On the flip side, it provides a safety hatch for biased supervisors. All they have to do is write up the employee for infractions, real or imagined, and they insulate themselves from charges of bias, as federal courts routinely shrink from investigating too deeply. With the recent Supreme Court decision on the “cat’s paw,” there is still an avenue to investigate the bias of the person providing the write-ups, but it is not enough to show that the allegations were untrue.
Posted by marykeating on April 27, 2011 under Race-based discrimination |
Yesterday the Fourth Circuit overturned, partially, an employer win at the trial court. The case came up in the context of a racial harassment case involving several African-American employees. In the Equal Employment Opportunity Commission v Xerxes Corporation, The EEOC sued on behalf of several named employees and a class of people affected by the hostile work environment. In reading about the company’s response, the frustration of dealing with such a workplace becomes clear. Various people called employees offensive names, but as the company’s discipline ratcheted up, the harassment became anonymous and more sinister. The black employees received anonymous messages, drawings of figures in nooses, references to the KKK, and general hostility. Although the local sheriff got involved, no one discovered who had delivered the messages. When anyone specific was called on the carpet, though, he or she dutifully apologized and took anti-harassment training. Some were suspended, and more were warned that any further incidents would lead to termination.
The Fourth Circuit held that once the company did get involved, its response was acceptable. While the best outcome, of course, is for all of the harassment to stop, when an employer promptly investigates and takes steps designed to stop the racially charged behavior, it is insulated from a lawsuit. Here, though, the company took too long to respond to the first complaints, and will have to go to trial.
While this reversal permitting a trial is a welcome departure from the Fourth Circuit’s usual affirming of summary judgment, there is some troublesome language in the decision. Several racial epithets are referred to as “isolated” remarks, code for “we are not going to worry about a little bit of discrimination, just a lot.” Yet another employee’s testimony was discounted for being too general. The court faulted him for not having detail, context, examples, and time frames.
Posted by marykeating on September 19, 2010 under Court news |
The President is becoming frustrated with the Senate’s glacial pace in confirming his judicial nominees. When his term began, the Fourth Circuit was understaffed by five; there are now two openings. Judge Albert Diaz has been waiting for action on his nomination longer than anyone else. Apparently there is no organized opposition, just a very slow pace for the votes. Judge Diaz earned unanimous votes from the Senate Judiciary Committee.
Posted by marykeating on August 10, 2010 under Court news |
Judge James Wynn, Jr., long an appellate judge in North Carolina, finally was confirmed to a spot on the Fourth Circuit. Like Judge Davis, confirmed in April, Judge Wynn was first nominated by Preident Clinton. Had he been confirmed then, he would have been the first African-American on that court. The court was long controlled by Senator Jess Helms, however, who blocked both appointments. Only two seats are now vacant. One nominee has been waiting for a vote from the full Senate since January 28.
Posted by marykeating on May 6, 2010 under Sex-based discrimination |
Last month, the Fourth Circuit overturned a trial judge’s decision to reject a sex discrimination claim before it got to trial. Deborah Merritt will now have a jury decide her claim that Old Dominion persists in applying sex stereotypes to its employees.
Merritt was a line haul driver for six years, taking freight to distant states. She wished to transfer to a local driving job so she could spend more time at home. The job is more physically demanding, since the driver does the loading and unloading of the freight. Its hours are more regular, though, and so some employees find it more desirable.
Only six out of the 3,100 local drivers at this company were female. Merritt also produced evidence that her supervisor said that “a girl should not have that position,” in part because the company was afraid women would be hurt on the job. Still, after several applications, and after making sure the men at the terminal did not mind working with a woman, Old Dominion placed her in the job. She did well. Six months later Merritt hurt her ankle and had to take some time to recover. When she was ready to return, she was put through a full-blown fitness test that is only given, occasionally, to new hires. She failed the test, but for reasons unrelated to her ankle injury and unrelated to her ability to perform the work. (For example, she was too short to reach a shelf.) The company fired her and replaced her with male workers.
In reversing the dismissal, the Fourth Circuit considered the pretextual policy of requiring injured workers (only on rare occasions) to take this test, and the statements by Merritt’s boss. It stated, “A plaintiff does not need a ‘smoking gun’ to prove invidious intent, and few plaintiffs will have one.” In this case, “evidence of a good employee record combines with evidence of an impermissible company attitude to form a lethal concoction.” In his concurrence, Judge Davis emphasized that company tests must be applied in a neutral manner.
Posted by marykeating on March 3, 2010 under Court news |
The Senate voted 99-0 to approve the nomination of Barbara Keenan to the Fourth Circuit Court of Appeals. As reported here before, the pace of replacement judges had been glacial. The Fourth Circuit has an enormous workload, and part of the consequence is that many opinions are unreported and short. Reported opinions are helpful to litigants and their lawyers as precedential. This is especially true in the employment arena, which changes rapidly, and is so fact-dependent. The Fourth Circuit is historically quite conservative; but when the Supreme Court changes the interpretation of discrimination laws, the Fourth Circuit has to react.
Judge Keenan is the first woman jurist from Virginia to serve on the Fourth Circuit
Posted by marykeating on November 10, 2009 under Court news |
Yesterday the full Senate finally confirmed Judge Andre M. Davis to the Fourth Circuit. As reported here before, the seat that Judge Davis will take has been vacant since Judge Murnaghan’s death in 2000.
This opens a seat on the United States District Court for the District of Maryland. The Senate has a lot of nominations before anyone will even be placed for a vote for this seat. The scuttlebutt around Baltimore is that many very well-qualified jurists will apply for the seat, and probably some practitioners as well.
Posted by marykeating on November 5, 2009 under Court news |
This blog has previously discussed the difficulty of delivering justice to this region, in light of five openings (out of 15) on the Fourth Circuit Court of Appeals. Two nominees have been given the green light by the Senate committee, but await full votes by the Senate. The Senate, of course, has the constitutional role of advising and consenting to judicial appointments. This role gives it the power to hold up appointments. The dusty seat reserved for Judge Andre M. Davis has been vacant more than ten years.
Well, at least President Obama is doing his part. Yesterday he nominated two North Carolina judges to the Fourth Circuit. President Clinton had earlier tapped Judge James Wynn Jr. of the North Carolina Court of Appeals; Judge Davis had the same experience of having his nomination die after a Republican took the White House. Judge Wynn is also African-American. The Fourth Circuit’s geographical region has a high population of African-Americans, so adding to the diversity of the Court would be fair and add to its perceived legitimacy. The other nominee, Judge Albert Diaz, is Hispanic. There are no current Hispanic members of the Court. More to the point for my clients, Judge Diaz has been working as a special trial judge for complex business cases. Often judges are chosen from the ranks of former prosecutors, and therefore their civil experience is meager.
Posted by marykeating on November 1, 2009 under Court news |
Barbara Keenan earned unanimous approval from the Senate Judiciary Committee to take an open spot on the Fourth Circuit Court of Appeals. Judge Keenan has been a judge in every level in Virginia state courts, according to Legal Times. As reported here earlier, the Fourth Circuit has long been understaffed, with one of its openings vacant for ten years. Judge Andre Davis, from the U.S. District Court for the District of Maryland, has been waiting for a vote from the entire Senate since June.
