Appellate Update

Joe Murray

My last appellate update was so long ago that I’ve got a lot of cases to review here. Hence I’m limiting (almost) every summary to 280 characters, Twitter style.

Wetherington v. NC Dep’t of Pub. Safety, No. COA18-1018 (N.C. Ct. App. Feb. 18, 2020) (State Personnel Act): In 2009, Patrolman loses hat, lies about it, fired. N.C. S. Ct. reverses/remands. Refired. Ct. App.: The “or” in the Wetherington test[1] is actually an “and.” Since not all four factors considered and ultimately met, reversed w/ instructions to impose lesser discipline.

Raynor v. G4S Secure Sol., No. 18-1773 (4th Cir. Feb. 26, 2020) (unpublished) (state law claims, Title VII race and retaliation): Big takeaway: district court can limit the presentation of evidence by imposing time limits at trial & decision will be reviewed under abuse of discretion standard. But courts should not set time limits as a “matter of course.” MSJ on Title VII and attorney’s fees award affirmed.

Allegis Grp., Inc. v. Jordan, No. 18-1769 (4th Cir. Feb. 27, 2020) (MD contract law): Agreement giving compensation to former employees in exchange for former employees not competing or soliciting is not held to the reasonableness standard of restrictive covenants. Former employees must repay lots of $. YMMV in N.C.

Rouse v. Forsyth Cty. Dep’t Soc. Servs., No. 1PA19 (N.C. Feb. 28, 2020) (Human Resources Act): Statutory remedy available even if no implementing regulation. ALJ has authority to award back pay and attorneys’ fees to local government employees under NCHRA who prevail in a wrongful termination proceeding.

Campbell v. McCarthy, No. 18-1890 (4th Cir. March 5, 2020) (Security Clearance): Title VII, the ADEA, and the Whistleblower Protection Act do not subject security clearance decisions to judicial scrutiny. Complaint alleging suspension of security clearance was pretext for discrimination/retaliation and was dismissed due to lack of subject matter jurisdiction.

Biggs v. NC Dep’t of Public Safety, No. 18-2437 (4th Cir. March 10, 2020) (§1983): 1) Case not moot when employee involuntarily retires during lawsuit and swears will return if obtains relief of reinstatement; 2) N.C. has not consented to §1983 suits; and 3) claims for reinstatement to previous position meet the Ex Parte Young exception.

Jordan v. SC Dep’t of Transp., No. 19-1332 (4th Cir. March 10, 2020) (unpublished) (Title VII retaliation): Why spend a full page explaining the law of retaliation just to summarily assert plaintiff failed to show pretext? Who knows, it’s #PerCuriam.

Butler v. Pennington, No. 19-1457 (4th Cir. March 10, 2020) (unpublished) (1st Amendment): Former public defender had a 1A right to report alleged prosecutorial misconduct—district court order affirmed. Appeal that supervisor is entitled to #QualifiedImmunity is interlocutory if argument is insufficiency of the evidence—appeal dismissed due to lack of jurisdiction.

Topping v. Meyers, No. COA19-618 (N.C. Ct. App. Mar. 17, 2020) (Defamation): I’ve already warned you to here.

Saunders v. Metropolitan Prop., No. 18-2008 (4th Cir. March 18, 2020) (unpublished) (Title VII hostile work environment and retaliation): Saunders complains of sexual harassment, Metro immediately puts her on leave and posts her job b/c of the allegation & terminates her in part b/c of timing of claim. Offers harasser transfer in lieu of term but terms Saunders. Retaliation MSJ reversed; other rulings upheld.

Briscoe v. W.A. Chester, LLC, No. 19-1727 (4th Cir. March 24, 2020) (unpublished) (Title VII & § 1981 race): 12(b)(6) is generally not appropriate for affirmative defense of statute of limitations. But when the complaint and attached documents clearly support the defense, then dismissal is appropriate.

Damiano v. Inst. for In Vitro Sci., No. 18-2382 (4th Cir. March 26, 2020) (unpublished) (ERISA): Conclusory assertions, especially if contradicted by evidence, do not show the required actual harm necessary to obtain the equitable remedy of surcharge under ERISA § 502(a)(3)(B).

Barrick v. PNGI Charles Town Gaming, No. 19-1250 (4th Cir. March 26, 2020) (unpublished) (wrongful termination and retaliation under Bank Secrecy Act and SOX): Barrick engages in protected activity, and casino fires him for violating policy while on final written warning. Court finds this a “legitimate intervening event.” Also, another employee, his dad, didn’t get fired for same protected activity. MSJ upheld.

Ashford v. PricewaterhouseCoopers LLP, No. 18-1958 (4th Cir. April 3, 2020) (arbitration): Arbitration provision: Title VII claims can’t be arbitrated “unless and until federal law no longer prohibits the Firm from mandating arbitration.” Court: arbitration allowed if law OR facts changed—facts changed. Use of “and/or” when identifying entities means or. Arbitrate.

Faulconer v. Centra Health, Inc., No. 18-1661 (4th Cir. April 7, 2020) (unpublished) (pleadings): Pro tip: proofread your complaint & check it b/f the deadline to amend runs. MSJ for employer upheld b/c complaint alleged retaliation in violation of Title VII, but protected activity was complaint of age discrimination. While ADEA would apply, Title VII doesn’t.

Tickles v. Johnson, No. 18-1577 (4th Cir. April 7, 2020) (unpublished) (ADEA): Iqbal/Twombly lives. ADEA complaint that fails to allege requirements for promotion, EE’s qualifications, qualifications & rule violations of comparators, or comparators’ ages is insufficient to push claims “across the line from conceivable to plausible.”

Babb v. Wilke, No. 18-882 (U.S. April 6, 2020) (ADEA): ADEA’s federal-sector provision is violated if age is A factor in a federal employer’s employment decision but still need to show but-for cause to get compensatory damages.

Deabreu v. UPS, No. 19-1248 (4th Cir. April 7, 2020) (unpublished) (Title VII): Don’t wait until 10 years after the issuance of the right to sue letter to file suit. Dismissal affirmed.

Schwarz v. St. Jude Med., Inc., No. 19-395 (N.C. Ct. App. April 7, 2020) (wrongful discharge): Rule 56 10-day notice before MSJ hearing requirement met by faxing. Not clear that adultery is illegal (likely not). Even if it is, not protected activity to report coworker’s affair to employer. Other claims meritless, too.

Greer v. General Dynamics, No. 19-1235 (4th Cir. April 13, 2020) (unpublished) (Defense Contractor Whistleblower Protection Act): Greer says he blew whistle that GD violated statute. Whoops, statute says GD’s conduct not a violation. No protected activity; even if protected, no constructive discharge.

Bazemore v. Best Buy, No, 18-2196 (4th Cir. April 21, 2020) (Title VII): Coworker makes racist joke. After Bazemore complains, HR investigates & disciplines coworker. In complaint, Bazemore alleges no more harassment after discipline. 12(b)(6) affirmed since Title VII only requires employer to take action “reasonably calculated” to stop harassment.

Cole v. Family Dollar Stores of Maryland, No. 18-2043 (4th Cir. April 27, 2020) (unpublished) (ADEA, ADA): Hard to show causation when fired for no-show/no-call absences. W/o proper comparators, age claim fails b/c can’t show pretext. Retaliation fails b/c absences occur between complaint and term. ADA claim fails b/c Family Dollar didn’t refuse accommodation.

Carey v. Throwe, No. 19-1194 (4th Cir. April 30, 2020) (1st Amendment): Is publicizing Facebook posts of a gov’t coworker that show misbehavior public concern or purely personal? Court rules personal grievances, so Carey’s retaliation claim fails under 1A.

Ward v. AutoZoners, LLC, No. 18-2100 (4th Cir. May 11, 2020) (Title VII/IIED punitive damages): Ward wins sex harassment case & awarded punitive damages. But did managerial employees who knew about harassment respond w/ reckless indifference? No, while the response was ineffective, it wasn’t reckless/intentional. Punitives reversed. IIED punitives also reversed.

Fessler v. IBM Corp., No. 18-2497 (4th Cir. May 14, 2020) (commissions/bonus): This case is based on VA law, but it shows the claims an employee should make when the employer has disclaimers in commission documents that reserve the right to limit or eliminate commissions. Fraud, constructive fraud, unjust enrichment, quantum meruit.

Johnson v. Old Dominion Univ., No. 19-1689 (4th Cir. May 14, 2020) (unpublished) (ADA, Title VII): Johnson abuses ODU’s grievance system, makes repeated document requests, is ever more adversarial & can’t communicate effectively. ODU requires Johnson to undergo fit-for-duty & fires him when he refuses. No ADA violation since ODU reasonably believed that Johnson was impaired.

Terefe v. Stanley Black & Decker, Inc., No. 19-1869 (4th Cir. May 15, 2020) (unpublished) (Title VII, § 1981): Another #PerCuriam opinion that lays out the law only to summarily decide the employee failed to make a prima facie case or show pretext.

Bing v. Brivo Sys., LLC, No. 19-1220 (4th Cir. May 19, 2020) (Title VII race): Tweet 1: An ultra-rare feat: Judge Traxler wrote half the opinion and dissented to the other half.

Tweet 2: When determining if without-prejudice dismissals are appealable, follow Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064 (4th Cir. 1993), test not Goode v. Central Virginia Legal Aid Society, Inc., 807 F.3d 619 (4th Cir. 2015).

Tweet 3: On 1st day, black employee, who passed pre-employment background check, meets white “Security Architect.” Hour later security architect fires employee b/c of Google search. Majority holds 12(b)(6) appropriate. Traxler says complaint sufficient for race discrimination.

Boyd v. Teachers Ins. & Annuity Ass’n of America, No. 19-1488 (4th Cir. May 29, 2020) (unpublished) (settlement agreement): If federal law/agency requires explanation of termination on document and settlement is quiet as to how to explain, employer’s explanation that provides context doesn’t breach settlement agreement. Also, as a financial professional, Boyd should have known the law.

Denver Global Prod., Inc. v. Leon, No. 1801853 (4th Cir. June 8, 2020) (unpublished) (arbitration): It’s a party’s duty to read and understand an arbitration agreement, even if the agreement is in Chinese—arbitration compelled. Party doesn’t need to wait for order to compel arbitration before initiating arbitration—arbitration award enforced.

Hill v. Employee Res. Grp., No. 18-2009 (4th Cir. June 9, 2020) (unpublished) (arbitration): Tweet 1: 71 employees get to pursue FLSA class action suit b/c ERG can’t find arbitration agreements & its parol evidence is insufficient. Other states’ law, so YMMV.

Tweet 2: Plaintiff’s bar will love “‘human resource official’s expectations or assumptions about what happened during a hiring process conducted by individual managers on many dates, in many locations,’ is of little probative value.”

Bostock v. Clayton Cnty., No. 17–1618 (U.S. June 15, 2020) (Title VII): Title VII prohibits discrimination against gay and transgendered individuals b/c such discrimination is because of sex. ???

US ex rel Complin v. NC Baptist Hosp., No. 19-1243 (4th Cir. June 15, 2020) (False Claims Act): FCA’s scienter requirement can’t be inferred solely by an alleged regulatory violation itself. No FCA retaliation b/c no evidence other than 2-year gap between knowledge of FCA lawsuit and alleged retaliatory act. Dismissal affirmed.