A Crucial Debate on Constructive Discharge

November 27, 2015

By R. Scott Oswald

On Monday morning the U.S. Supreme Court will hear arguments on the rules federal employees must follow when they’re forced out of their jobs by discrimination or retaliation.

The case in question, Green v. Brennan, is about legal deadlines. That sounds technical, but really it boils down to simple justice. If the Court affirms a lower judgment, it will become far too easy to deprive federal workers of their day in court.

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Supreme Court to Hear Key Employment Law Cases in October 2015 Term

July 20, 2015

While Supreme Court analysts are still considering the impacts of a number of rulings from the Supreme Court’s October 2014 term, including an important ruling for religious accommodation of employees under Title VII in E.E.O.C. v. Abercrombie & Fitch Stores, the Court has already granted certiorari in a number of cases that could have sweeping impacts on employment law.

In Tyson Foods v. Bouaphakeo, the Court will examine what effect, if any, differences in individual members of classes certified under a class action lawsuit or collective action suit under the Fair Labor Standards Act should have when damages are calculated by use of statistical sampling. In this case, a class of workers in a meat processing plant seek unpaid overtime for the time spent each day to put on (donning) and remove (doffing) protective equipment before and after shifts and before and after lunch breaks. To prove liability and damages at trial, the plaintiffs presented timesheets for the individual plaintiffs as well as average donning and doffing times derived from observations of more than 700 employees. The Eighth Circuit affirmed the use of statistical sampling in this case because the plaintiffs all worked in the same location, used similar equipment to perform their jobs, and the company used a common pay scheme regarding their “donning and doffing” times. The Eighth Circuit also pointed to the fact that since the company had failed to keep adequate records of specific times spent on “donning and doffing” for each specific plaintiff, reasonable inferences drawn from average times and individual timesheets were sufficient.

In Bouaphakeo, the Supreme Court will also examine whether class certification should survive when some members of the class suffered no actual damages from the employer’s activities. This case will be important for determining the outcomes of future cases involving unpaid overtime and employee misclassification, especially given the increase in these types of claims in recent years.
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Fourth Circuit Holds that McDonnell-Douglas Survives Nassar for Prima Facie Retaliation Cases

June 30, 2015

In a recent case, Foster v. University of Maryland-Eastern Shore, the Fourth Circuit held that the familiar McDonnell Douglas burden-shifting framework survives the but-for causation standard articulated by the Supreme Court in University of Texas Southwestern Medical Center v. Nassar in 2013. The Fourth Circuit held that Nassar does not alter the burden for Title VII plaintiffs at summary judgment because McDonnell Douglas already incorporates a but-for standard. This case is important for plaintiffs, as it sheds light on questions raised by the Supreme Court in Nassar as to how plaintiffs carry their burdens in employment litigation.

Iris Foster worked for the University of Maryland-Eastern Shore as a campus police officer. The University placed her on a standard probationary period of six months upon hiring. The University did not contest that Foster faced significant sexual harassment from a colleague even before she began her employment. Foster complained of the harassment within the first month of her employment, and the University disciplined Foster’s co-worker, transferring him to a different role, requiring him to attend sexual harassment training, and putting him on a “Last Chance Agreement.”
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ARB Clarifies: Trucking Whistleblowers Face “Much Easier” Proof of Retaliation

June 11, 2014

In two related decisions last month, the U.S. Department of Labor’s Administrative Review Board (ARB) noted that proving retaliation in trucking-related whistleblower cases became “much easier” in 2007 — and said that judges will no longer get a free pass on applying the old standard.

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First Circuit Says Title VII Offers Workers a Broad Shield

February 19, 2014

A federal appeals court ruled that Title VII of the Civil Rights Act of 1964 offers employees broad protection against reprisal when they oppose workplace discrimination — even if they didn’t originally claim that an employer’s bias violated Title VII.

Saying it “cannot accept” a lower court’s dismissal of a retaliation claim by a female firefighter in Puerto Rico, the U.S. Court of Appeals for the First Circuit found no merit in the idea that Title VII covers only retaliation against complaints citing that law.

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Burrage v. U.S. — Can a Heroin Dealer Help to Clarify Whistleblower Law?

February 12, 2014

By R. Scott Oswald

It’s rare for a criminal appeal — let alone the appeal of a heroin dealer’s sentence for his client’s ill-fated drug binge — to guide our understanding of whistleblower protection laws.

Yet there, on January 27, was the U.S. Supreme Court’s unanimous judgment in Burrage v. United States, a mandatory-minimum drug case that ended up parsing the retaliation provisions of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and more.

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After Nassar: Title VII Retaliation Claims Are Tougher — But Still Viable

November 04, 2013

This June, in a blistering dissent from the bench, Justice Ruth Bader Ginsburg decried the U.S. Supreme Court’s “misguided judgment” in University of Texas Southwestern Medical Center v. Nassar and called on Congress to restore to employees the rights stripped by a decision that “defies logic.”

A law to reverse Nassar certainly would be welcome, but it’s not the sole hope for employee advocates. True, Nassar makes it harder to prove that an employer’s action amounted to unlawful retaliation against a whistleblowing employee under Title VII of the Civil Rights Act of 1964.

But, Justice Ginsburg’s pessimism notwithstanding, it’s hardly fatal to such a claim.

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New Jersey State Trooper Awarded Over $1 Million Whistleblower Settlement

August 31, 2012

Brian Royster, a former New Jersey State Police trooper, has been awarded $1.06 million by an Essex County Superior Court jury; however, because of a cap on damages for emotional distress under the Americans with Disabilities Act (ADA) his award will be limited to $860,000.

Royster filed his lawsuit against the New Jersey State Police, Superintendent Rick Fuentes, and others, in 2005 under the New Jersey Conscientious Employees Protection Act, and the state’s Law against Discrimination, as well as Title VII of the federal Civil Rights Act of 1964. His lawsuit was dismissed in 2006 but revived upon appeal in 2007.

Royster alleged that that the police department not only failed to act on his race discrimination complaints, but also failed to provide him reasonable accommodations for his inflammatory bowel disease. According to Royster, he was subjected to a pattern of disparate and racially-motivated treatment by his supervisor, and the police department’s Equal Employment Opportunity/Affirmative Action unit did not properly investigate his complaints. When he began complaining about the department’s alleged practices, he was denied a promotion and given a poor performance evaluation.

The Employment Law Group® law firm has an extensive nationwide whistleblower practice  representing employees who have been victims of retaliation.