Appellate Update

• By Joe Murray

I hope y’all appreciate that I read these opinions so you don’t have to. The employment decisions over the past several months have been fairly pedestrian.

Clehm v. BAE Sys. Ordnance Sys., Inc., No. 18-2010 (4th Cir. Sept. 30, 2019) (unpublished) (Title VII): Clehm was sexually assaulted by a coworker, who BAE terminated and who was ultimately sent to jail. Clehm claimed that after the coworker’s termination she endured workplace harassment from co-workers, including what the 4th Circuit described as “shocking evidence” of a “generally sexualized work environment.” However, the evidence showed that BAE disciplined the harassers and provided support for Clehm. Clehm filed suit against BAE alleging, among other claims, Title VII hostile work environment and retaliation. The 4th Circuit upheld the grant of summary judgment on both claims in favor of BAE due to Clehm’s inability to impute liability to BAE for her co-workers’ conduct. Specifically, there was no evidence that BAE “knew or should have known about the harassment and failed to take effective action to stop it.” Clehm’s retaliation claim also failed since BAE had not taken any adverse action against her.

Parker v. Ciena Corp., No. 19-1144 (4th Cir. Sept. 27, 2019) (§ 1981) (unpublished): After his termination, Parker filed claims of race discrimination and retaliation under § 1981, which the district court dismissed via summary judgment and 12(b)(6), respectively. The 4th Circuit upheld the dismissals on both counts. As for the discrimination claim, Parker could not show he was meeting the requirements of his job under the McDonnell Douglas framework. The evidence showed that Ciena removed a white outside contractor for the same reasons Parker was removed and that other employees complained about Parker’s performance. Further, Parker’s own self-evaluations supported the reason for termination: he needed to perform better by delegating tasks to other employees. As for the retaliation claim, Parker failed to allege that he took any protected activity; rather, he complained about general workplace grievances.

Ayers v. Currituck Cty. Dep’t of Soc. Servs., COA18-1007 (N.C. Ct. App. Oct. 1, 2019) (North Carolina Human Resources Act): While Ayers may ultimately succeed on her legal claim, I’m not sure how she can effectively continue to work for Currituck County’s DSS.[i] While trying to help her boss determine what “NR” meant in the race category on a form, Ayers said either “n###er rican” (Currituck’s position) or “n##ra rican” (Ayers’ testimony). Unsurprisingly, Currituck terminated Ayers for this comment, and she sought review of the determination as a career state employee under the Human Resources Act. The ALJ overturned Ayers’ termination in an opinion that misconstrued what Ayers said by using a third offensive term, which led to an improper analysis under the Warren test. The court of appeals remanded the matter back to the ALJ for reconsideration of the findings of fact since no evidence supported the use of the third racial epithet and proper analysis of the Warren test. Finally, the court of appeals made it clear that the n-word and its variants are all racial epithets and anathema to society.

Carlton v. Univ. of NC at Chapel Hill, COA19-140 (N.C. Ct. App. Oct. 1, 2019) (HRA): If a state employer, such as UNC, reverses a decision to terminate a career state employee and reinstates the employee during the informal grievance process, then the Petition for Contested Case Hearing on the same issue will be dismissed for lack of subject-matter jurisdiction.

Andy-Oxy Co., Inc. v. Harris, COA19-10 (N.C. Ct. App. Nov. 5, 2019) (unpublished) (restrictive covenants): The court of appeals reiterated that non-competes cannot prevent employees from working in any capacity for a competitor—the restriction must be for the same or similar positions with a competitor. Further, courts cannot “blue pencil” out terms or words unless those terms are a “distinctly separable part of a covenant.” Finally, non-solicitation agreements must be limited to clients the employee had contact with, unless the employer can provide evidence the employee had access to confidential information on other clients.

Quinn v. Copart of Conn., Inc., No. 18-2485 (4th Cir. Nov. 14, 2019) (unpublished): This removal case involved dismissal of the action due to plaintiff’s failure to serve the summons and complaint in a timely fashion as required by the South Carolina Rules of Civil Procedure. Relevant to North Carolina practitioners, the 4th Circuit reiterated that failing to file a lawsuit within 90 days of receipt of a right-to-sue letter from the EEOC gives rise to a statute-of-limitations defense.

Nnadozie v. Manorcare Health Serv., LLC, No. 19-1369 (4th Cir. Nov. 14, 2019) (unpublished) (§ 1981 & Title VII): Nnadozie, a night shift nurse supervisor, alleged discrimination, retaliation, and hostile work environment claims raised under § 1981 and Title VII after her termination. The 4th Circuit upheld the grant of summary judgment since Nnadozie’s attempt to show pretext through minor inconsistencies in testimony and her belief that the investigation was insufficient were not enough for a jury to find the decision to terminate Nnadozie was pretextual. The hostile work environment failed since there was no evidence that the workplace was objectively hostile.

Prickett v. NC Off. of State Hum. Res., COA19-37 (N.C. Ct. App. Nov. 19, 2019) (HRA): Unless your client was a former high-level state employee who got terminated in the switch from Governor McCrory to Governor Cooper, there is no reason for you to read this case. In summary, the positions a governor can designate as non-exempt under the State Human Resources Act are limited by statute, and the 2016 Career Status Law was unconstitutional, rendering any action under it void.

House v. Mitra QSR KNE LLC, No. 18-1779 (4th Cir. Dec. 3, 2019) (unpublished): Practice tip: don’t file a lawsuit under the name of your deceased client, even if the statute of limitations runs out today, because the suit is a legal nullity that cannot be cured.

Smith v. Premier Property Management, No. 19-1354 (4th Cir. Dec. 5, 2019) (unpublished) (ADEA): Another case in which the plaintiff attempted unsuccessfully to pull at various threads to show the employer’s decision to terminate was pretext. Premier terminated Smith as property manager for, among other things, not meeting occupancy goals. Smith filed a lawsuit under the ADEA, in which the district court granted summary judgment to Premier. The 4th Circuit upheld summary judgment, finding that Smith’s subjective beliefs and opinions were not evidence of Premier’s motivations. Specifically, the 4th Circuit noted the evidence showed that Smith was in some way responsible for occupancy goals, occupancy goals were not being met, Smith was terminated for other reasons in addition to the occupancy goals, the same supervisor hired and fired Smith, and Smith’s self-identification as being unqualified when hired did not protect her from termination.