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.
Posted by marykeating on October 13, 2009 under Court news |
The Senate Judiciary Committee has before it seventeen nominations to the federal courts, none of which have yet been confirmed by the Senate as a whole.
It is too early to conclude that the minority in the Senate will remain successful in keeping the brakes on the process. Progress is important; as Carl Tobias points out, the federal judiciary is overly stocked with white men. (Carl Tobias is Williams Professor at the University of Richmond School of Law.) “Eighty-four percent of federal judges are white. Female jurists comprise 20%. African-Americans constitute 8%. Out of the almost 1,300 sitting federal judges, a mere 11 are Asian-American and only one is a Native American. A significant percentage of the 94 federal districts has never had a jurist who is a woman or a person of color.”
Two of the pending nominations are for the Fourth Circuit, which has been running shorthanded for years. The glacial process impairs justice. There are five openings on that court, one third of the fifteen judicial seats. In the absence of judges, appellants cannot get the attention or promptness they deserve, and practitioners suffer because fewer opinions are polished for publication.
Judge Andre M. Davis of the United States District Court for the District of Maryland has been nominated for a second time (his died when the Senate failed to take action before President Clinton’s term ended). Judge Davis has been a judge since 1987; the Fourth Circuit would be his fourth court. On June 4, the Senate Judiciary Committee voted him qualified, and sent the nomination to the full Senate. Now that Justice Sotomayor has been confirmed (two months now), the Senate should fill this seat, vacant for ten years now.
Judge Davis is well-regarded, and should easily obtain the needed votes, if the Senate just gets to it. His record is not overly liberal; in fact, the National Council on Independent Living opposes Judge Davis’s elevation because of his record on ADA cases, strictly applying the definitions of disabled to deny coverage under that law.
President Obama has also nominated a Justice of the Supreme Court of Virginia, Barbara Milano Keenan. She recently had a hearing before the Committee.
Posted by marykeating on August 18, 2009 under Constructive discharge, Race-based discrimination, Racial harassment, Sex-based discrimination, sexual harassment |
In sexual and racial harassment cases, one of the most difficult decisions an employee can make is what to do when the employer is insufficiently responsive to complaints. It’s safe to say that employers have all learned to parrot the lines “we take allegations of sexual harassment seriously,” and “racial comments are not tolerated in this workplace.” But sometimes they are. When an investigation is cursory or a farce, the complaining employee is often faced with escalated harassment, as the bullies realize they are winning, and are not happy that she called in the higher ups. If the harassment is sufficiently severe and the employee cannot tolerate the atmosphere anymore, is she free to quit? If she continues to go to work, is the atmosphere perhaps not that abusive after all? The idea of constructive discharge is commonly rejected by courts.
This is the essential conflict in the case of the Equal Employment Opportunity Commission v. Central Wholesales, Inc., a company in Laurel, Maryland. A three year employee transferred to a new department and immediately was subjected to severe racial and sexual harassment. Her coworkers used the “b” and “n” words daily, a man in an adjacent cubicle had a pornographic screensaver, and when his screen wasn’t being saved, he was watching pornography on it; the employee had to listen to it. Two male coworkers kept mop-haired dolls in nooses in their offices. She complained to the coworkers, then to her supervisor, then to the president of the company, and finally to her former supervisor. For the most part, nothing was done, and her supervisor even made a joke of her treatment. At that point, the employee left the job and was unable to return.
The EEOC brought suit on her behalf. The trial court held that the employee was not harassed as a matter of law. It decided that the sexual harassment was not severe enough, and that the employee left her job before the company could remedy the racial issues. The Fourth Circuit, often not a friend of the employment discrimination plaintiff, reversed the decision.
Under the law of harassment, an employee needs to show that the harassment was both objectively and subjectively hostile and abusive. That is, the employee must have found the atmosphere upsetting, and a reasonable person in her position would also have done so. Under the Fourth Circuit’s precedent, plaintiffs must clear a “high bar” to show that the objectionable conduct was severe or pervasive. In other words, to make out a case of sexual or racial harassment, the plaintiff has to show that there was so much unwelcome, racially or sexually charged conduct that the employment situation was altered, poisoned.
In this case, the employee did make enough of a showing that she is entitled to a trial. It is not easy to bring all the elements together, especially when the employee leaves the workplace. But at least here, the employee’s dilemma, of staying in a toxic environment for the sake of her lawsuit or quitting and preserving her mental health has not doomed her opportunity to make her claim.
Posted by marykeating on July 14, 2009 under Court news |
Chief Judge Karen Williamson of the Fourth Circuit announced last week that she will retire early on disability due to early-onset Alzheimer’s disease. Appointed by George H. W. Bush, Judge Williamson has been on the Court of Appeals for 17 years.
There are now five openings on the Fourth Circuit. Judge Andre M. Davis of the United States District Court for the District of Maryland has been nominated, and has gotten through the Senate Committee; no vote has been held by the full Senate, which of course is focusing on Judge Sotomayor’s nomination. But the Fourth Circuit has had several vacancies for some years, all through the George W. Bush years. If President Obama manages to fill all of the open seats, the much-vaunted conservative bastion of the federal system may drift to the center. The extent to which this will help employment discrimination plaintiffs will depend in part on the Supreme Court, which does not seem to be heading toward the center anytime soon, barring an unexpected vacancy in the conservative majority. Still, with the Fourth Circuit up to full strength, perhaps there will be more attention paid to appeals that may now be routinely disposed of per curium.
