Blog Post

Fourth Circuit

Posted by: Paul Mollica
March 19, 2008
Topic: EEO Case Summaries by Circuit

EEOC v. Fairbrook Medical Clinic, P.A., --- F.3d ----, 109 FEP 907 (4th Cir. 2010). Panel: WILKINSON, Davis, Beam. Claims on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: EEOC presented a genuine issue of material fact about harassment by doctor/clinic-owner being "because of" sex.. Although doctor made offensive remarks in front of both male and female employees, his use of "sex-specific and derogatory terms" indicates that he intended to demean women (e.g., he asked employee who had recently given birth if she had a better libido while she was pumping her breasts, predicted that she was probably a "wild thing" in bed, and requested to view and pump her breasts). Panel rejects suggestion that such statements were not severe or pervasive in the setting of a medical clinic, where case involved "more than general crudity," including "highly personalized comments designed to demean and humiliate [employee." Court "decline[s] to accept the argument that a medical setting, because it deals with human anatomy, is somehow liberated from professional norms." Court also rejects arguments that the comments were too infrequent to be severe or pervasive, or that the harassment supposedly did not affect the employee's job performance. Over three year period, employee testified that crude jokes occurred two to three times a month, and remarks about her breasts once or twice a week after she returned from maternity leave. Although there was no record of physical conduct, there was implicit sexual propositioning (such as about pumping her breasts). That plaintiff continued to work despite the harassment does not defeat the claim. Disputes concerning the credibility of the employee's testimony belong to the jury. Whether or not Faragher/Ellerth defense applies to business owner, jury could conclude that the clinic failed to exercise reasonable care (e.g., did not investigate harassment complaints). 

Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 108 FEP 1766 (4th Cir. 2010). Panel: WILKINSON, Duncan [DAVIS, concurring]. Claims on Appeal: Title VII termination (sex). Disposition Below:  Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff presented genuine issue of material fact about whether she was fired for sex, rather than for failing a physical ability test after seeking clearance to return to work after an ankle injury. Plaintiff introduced ample evidence showing that proffered explanation was unworthy of credence, because (1) the record indicates that employee's ankle injury was temporary and had healed at the time of her termination, yet employer did not allow her to return to work; and (2) the proffered rationale is" undermined by the undisputed fact that the PAT ("physical ability test") was a general, full-body physical fitness test not designed to test any body part in particular." In addition, there was specific evidence of gender bias: "(1) Old Dominion used the PAT selectively, excusing injured male employees from taking it; and (2) The employee responsible for requiring the PAT and firing her, Stoddard, harbored discriminatory animus toward women insofar as he was responsible for selectively employing the PAT and was part and parcel of Old Dominion's widespread resistance to hiring women as Pickup and Delivery drivers." There was doubt that a policy of administering the test existed, and the employer only first asserted it during the course of litigation. Indeed, only on appeal did employer argue that PATs "were not required after all on a discretionary, case-by-case basis but each and every time, without exception, an injured employee was issued an ambiguous medical release." By using the test on a female driver, while exempting two male drivers returning from injuries, a jury could find that the company enforced a stereotype that women were less resilient in their ability to recover. There was also evidence of sex-biased attitudes: regional vice president remarked that he "didn't think a girl should have that [Pickup and Delivery] position" and worried that women were more injury-prone, explaining that he did not want to hire a female Pickup and Delivery driver because he "was afraid [she] would get hurt." An operations' manager stated, "[t]his is not a woman's place." A terminal manager stated reluctance to hiring female Pickup and Delivery drivers, noting that "the company did not really have women [Pickup and Delivery] drivers," and that Merritt was passed over because "it was decided that [the company] could not let a woman have that position." Only six out of 3100 Pickup and Delivery drivers were women.

Whitten v. Fred's Inc., 601 F.3d 231, 108 FEP 1510 (4th Cir. 2010). Panel: TRAXLER, Agee, Blake. Claims on Appeal: S.C. state law harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: EEOC's transmittal of plaintiff's charge to State Human Affairs Commission satisfied the requirement that a charge of discrimination be made "to the Commission" under S.C. Code Ann. § 1-13-90(a). Claim was also timely filed under state law, where (1) the plaintiff must file the earlier of one year after the event or 120 days after dismissal of dismissal of her state charge; (2) complaint was filed within one year of final harassing events; and (3) state agency had never dismissed her charge (even though the EEOC did.) Judicial estoppel did not apply where plaintiff did not conceal or deny that the claim was an asset in bankruptcy, disclosing it in her original bankruptcy filing. On the merits, the state law tracks Title VII law. Employee presented genuine issue of material fact about whether the store manager's harassment could be imputed to the employer. While the existence of authority to take tangible employment action would establish that store manager was employee's supervisor, district court erred in holding that the absence of that authority negated supervisory status. Manager was usually was the highest ranking employee in the store, which meant that there typically was no one superior to him to provide a check on his behavior. The level of authority manager had and exercised over plaintiff was significant, i.e., he could change Whitten's schedule and impose unpleasant duties. It was not determinative that plaintiff could (and did) tell the manager to halt the harassment. Regarding possible application of Faragher/Ellerth affirmative defense, actions giving rise to plaintiff's hostile environment claim-the changes in her work schedule, assignment of unpleasant tasks as punishment, the verbal and physical abuse-did not in themselves amount to tangible employment actions. Such actions might amount to a constructive discharge, though, and panel finds that the employee presented a genuine issue of material fact on this point. (Panel acknowledges that the circuit's requirement that a hostile work environment must be deliberately intended to force employee to quit work is in possible tension with Pennsylvania State Police v. Suders.) "A reasonable person could certainly find intolerable a working situation where a corporate official is utterly unconcerned about sexually-tinged physical assaults inflicted on a subordinate by a supervisor." Nevertheless, under Suders a constructive discharge must be precipitated around a "company act," and here the only act that the plaintiff can point to (district manager's failure to stop manager's conduct, and a failure to take any steps to protect plaintiff from manager) was not such an act. Hence, Faragher/Ellerth applies on remand; employee presents genuine issue of material fact about whether employer acted reasonably on the employee's complaints.

King v. McMillan, 594 F.3d 301, 108 FEP 702 (4th Cir. 2010). Panel: MICHAEL, King, Agee. Claims on Appeal: Title VII harassment (sex). State tort claim against individual officer (not discussed here). Disposition Below: Judgment after a jury verdict ($50,000 compensatory damages) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: New sheriff was properly substituted as successor under Fed. R. Civ. P. 25(d). Testimony of other women who claimed to have been harassed by the same sheriff properly admitted where it is relevant to (1) whether the sheriff's conduct was because of the plaintiff's sex, and (2) whether the conduct is severe or pervasive. District court did not abuse its discretion in admitting such evidence even in the light of a proposed stipulation by defendant that the conduct was "because of" sex. No FRE403 problem where jury was instructed about the relevance of the testimony and other harassing events were in the same timeframe as the plaintiff's claim. No error in declining to instruct jury that other-harassment evidence was only admissible for the Title VII claim, not the battery claim. No abuse of discretion in denying a new trial.

Pueschel v. Peters, 577 F.3d 558, 106 FEP 1820 (4th Cir. 2009). Panel: GREGORY, Michael, King. Claims on Appeal: Title VII and Rehabilitation Act harassment. MSPB claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee not subjected to hostile work environment where all of the allegedly harassing activities occurred after she left the workplace.

Brown v. Nucor Corp.,576 F.3d 149, 106 FEP 1718 (4th Cir. 2009). Panel: GREGORY, Michael [AGEE, dissenting in part]. Claims on Appeal: Title VII and § 1981 harassment and promotion. Disposition Below:  Class certification denied [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Panel reverses and remands with a mandate to certify a Rule 23(b)(3) class. On the harassment class, the panel holds unanimously that (1) the different production departments should (contrary to the district court's finding) be treated as one "environment," because the harassment occurred every, and "the racist acts had plant-wide repercussions and affected all black employees"; (2) for purposes of commonality, the district court erred in denying weight to "affidavits of employees in one department . . . to prove a plantwide hostile environment that affected employees in other departments"; and (3) the claims of named plaintiffs who worked in the beam mill should have been held typical of claims of absent class members outside of their department. On the promotion claim, the panel splits 2-1. The majority holds that (1) allegations of "a practice of disparate treatment in the exercise of unbridled discretion . . . rais[es] questions of law and fact common to all [subject] black employees" (quoting Lilly v. Harris-Teeter Supermarket, 720 F.2d 326, 333 (4th Cir. 1983)); (2) the district court erred in disregarding direct evidence of a practice of discrimination (admission by supervisor that he would not promote blacks, a pattern of promoting of whites with less tenure), which was sufficient by itself to establish a common issue; (3) the class additionally "presented valid statistical evidence that independently indicates a disparate impact and disparate treatment in job promotions at Nucor, and . . . that an in-depth assessment of the merits of appellants' claims at this stage would be improper"; and (4) it was error to hold that a Title VII promotion case presented an inherent conflict of interest among black candidates.

EEOC v. Central Wholesalers, Inc., 573 F.3d 167, 106 FEP 1377 (4th Cir. 2009). Panel: SHEDD, Agee[Williams, did not participate]. Claims on Appeal: Title VII harassment (race, sex). Disposition Below:  Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Black, female employee alleges "a steady stream of racial and gender epithets" by four white male co-workers who "engaged in inappropriate racial and gender-based conduct" over a two-month period, including daily use of offensive language (e.g., "b***h," "n****r"); workplace pornography; ethnic/sexual jokes; and "blue-colored dolls with mop-heads [displayed] in [employee's co-workers'] offices ... hanging by nooses tied around their necks.". EEOC presented a genuine issue of material fact on each of the elements of its hostile work environment claim. Most notably, the court holds that (1) the regular use of the word "bitch," about women generally or the employee in particular, supports an inference that the harassment is based on sex; (2) the habitual use of race and gender epithets could be found severe or pervasive; and (3) the employer's failure to take progressive steps to reprimand, demote or suspend the offenders was evidence that its corrective efforts were ineffective.

Jonesv. Calvert Group, Ltd., 551 F.3d 297, 105 FEP 129 (4th Cir. 2009). Panel: TRAXLER, Shedd, Hamilton. Claims on Appeal: 1. Title VII (sex, race) and ADEA termination. 2. Title VII and ADEA retaliation. Disposition Below: 1. Dismissed for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. 2. Dismissed for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: 1. Dismissed [defendant] 2. Reversed [plaintiff]. Grounds: 1. Where first charge was withdrawn in the course of a settlement, and the second charge did not list discrimination, employee failed to use EEOC administrative remedies and court lacked subject-matter jurisdiction. 2. Morgan rule addresses only the issue of when the limitations clock for filing EEOC charge begins ticking with regard to discrete unlawful employment practices. It does not purport to address the extent to which an EEOC charge satisfies exhaustion requirements for claims of related, post-charge events. In this case, post-charge acts of retaliation do not need to be subject of a second charge.

Ziskie v. Mineta, 547 F.3d 220, 104 FEP 1377 (4th Cir. 2008). Panel: WILKINSON, Niemeyer, Duncan. Claims on Appeal: 1. Title VII harassment (sex). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff] 2. Affirmed [defendant]. Grounds: 1. District court erred in holding that only those acts of harassment directed at the employee herself could be considered as evidence that the harassment was severe or pervasive. Rejection of co-worker's affidavits was thus an abuse of discretion. On remand, district court must still decide whether employee presented genuine issue of material fact about (1) whether the harassment was sex-based (versus possibility that the men at her worksite resent her personally, and not because of her gender, where "[v]irtually all of the specific incidents of harassment directed at her occurred after the summer of 2002, when she abused her sick leave in order to retain her old part-time schedule when she was supposed to be working full-time"; and (2) whether behavior was objectively hostile in the absence of physical touching, sexual propositioning or graphic sexual talk. 2. No evidence that miscellaneous adverse actions were motivated by retaliatory animus.

Lightner v. City of Wilmington, 545 F.3d 260, 104 FEP 1155 (4th Cir. 2008). Panel: WILKINSON, Hamilton, Cacheris. Claim on Appeal: Title VII suspension (race, sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee who admitted that the real reason for his suspension was for his whistleblowing activities about ticket fixing vitiated claim of discrimination under 42 U.S.C. § 2000e-2(a).

Buckley v. Mukasey, 538 F.3d 306, 104 FEP 1 (4th Cir. 2008). Panel: KING, Duncan, Roth. Claim on Appeal:  Title VII promotion (race, retaliation). Disposition Below: Judgment as a matter of law and judgment after a jury trial [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in granting objection to plaintiff introducing, as background evidence to her retaliation action, facts about the Segar class action. Plaintiff was denied promotion expressly out of concern that she was assisting the class action in her official capacity as a senior inspector by inviting the Government Accounting Office to participate in investigation of the agency's employment practices. The district court improperly adjudged the Segar evidence (about the history of the case and the consent decree) as mere propensity evidence and excluded it under FRE401-403 and 404(a). Panel holds that plaintiff did not seek to use such evidence to establish either a general propensity to discriminate against African-American employees within the DEA, or a more specific racially discriminatory animus on the part of the decisionmakers in her case, but instead to demonstrate retaliatory animus (i.e., "that the pendency of Segar and the long history of its burden on DEA weighed heavily on the minds of the principal decision-makers, and that, ultimately, those decision-makers failed to promote Buckley because of her involvement in the litigation." Exclusion of the background evidence affected her substantial rights and mandated retrial of the retaliation and discrimination claims. The court also reversed, on the same reasoning, the judgment as a matter of law on the retaliation claim. Panel also directed reconsideration of the district court's denial of an adverse-inference instruction owing to the government's negligent destruction of electronic documents during the litigation. The panel held that the district court applied too strict a standard against the plaintiff to excuse the agency's failure to preserve the documents. No need to show bad faith, if destruction was otherwise intentional, willful, or deliberate.

Middlebrooks v. Leavitt, 525 F.3d 341, 103 FEP 261 (4th Cir. 2008). Panel: MOTZ, Duncan, Brinkema. Claim on Appeal: 1. Title VII hiring (race, retaliation). 2. Equal Protection hiring. Disposition Below: 1. Dismissal for lack of subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1) [defendant]. 2. Dismissal for lack of subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1) [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. As an applicant for a position in of the United States Public Health Service Commissioned Corps ("PHSCC"), plaintiff's claim was exempted for sovereign immunity under 42 U.S.C.§ 2000e-16(a) and 42 U.S.C. § 213(f) only if plaintiff was not applying to uniformed services (versus civilian service with the Nat'l Institutes of Health). Record was not complete on how this position was categorized, so had to be remanded. 2. Fifth Amendment equal protection claim dismissed because (1) Title VII provided the exclusive remedy for race discrimination in federal employment; and (2) under Feres immunity doctrine, the equal protection claim could not lie.

EEOC v. Sunbelt Rentals, 521 F.3d 306, 102 FEP 1735 (4th Cir. 2008). Panel: WILKINSON, Gregory, Duffy. Claim on Appeal: Title VII harassment (religion). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff].  Grounds: District court erred in holding that co-worker harassment of Muslim coworker - in wake of 9/11 terrorism and Beltway sniper incidents - was not severe or pervasive on grounds that workplace was already coarse, some harassment lacked any religious nexus, and the acts that were specifically about religion were not severe or pervasive. Record (viewed from employee's perspective) revealed numerous complaints and attempts to get co-workers to stop (showing unwelcomeness). Harassment was also because of religion: frequently called "Taliban" and "towel-head," teased about kufi and beard. Record presented genuine issue of material fact about pervasiveness: anti-Muslim sentiment directed at only Muslim employee in workplace; repeated comments disparaging religion; stating that he cannot be a patriotic American (though he was an Army vet); harassed about appearance, called a "fake Muslim" because of his beard; harassed about taking prayer breaks (told that if he took a break upstairs it would be "then end of him"); general expressions of hostility against Muslims, anti-Muslim crudities (employee lifted a metal detector to his turban); slurs made at Muslim customer; petty misbehavior (hiding timecard, unplugging computer). Panel also rejected alternative ruling that employer took adequate corrective measures. Record showed that company believed employee complained too often and dismissed as "paranoid" and "building a case against" the employer. Oral complaints not answered, even written complaint did not lead to discipline of harassing co-workers.

EEOC v. Firestone Fibers, 515 F.3d 307, 102 FEP 961 (4th Cir. 2008). Panel: WILKINSON,King,Floyd. Claim on Appeal: Title VII reasonable accommodation (religion). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee lab technician sought a Sabbath accommodation and up to fourteen additional days off a year for other observances. After restructuring and layoffs, he was bumped out of the shift that enabled him to meet his religious obligations. Because of the collective bargaining agreement, the company could not feasibly shift him into another position or shift, nor could they require other employees to cover his Sabbath hours on an overtime basis. Obligation of reasonable accommodation (and corresponding defense of "undue hardship" in the same section) required only that employer minimize, not eliminate conflict with religious obligation (noting split in circuits). Burden is on the employer to show either (1) that it has provided the plaintiff with a reasonable, though not necessarily a total, accommodation or (2) that such reasonable accommodation was not possible without causing undue hardship to the conduct of its business. Here the court held that the employer did reasonably accommodate the employee, within the terms of the CBA, by providing a seniority-based bidding system for working shifts; fifteen, eight-hour vacation days and three floating holidays (including the ability to break the time up into half-day increments); the ability to switch shifts twice a quarter (eight times a year); and sixty hours unpaid leave time. Additionally the employee's supervisor allowed the employee more than the allocated half-day vacations and scanned the shift assignments every week to look for places to slot the employee. Employer thought it could not accommodate request because "other lab employees would be imposed upon from the standpoint of being required to work to cover for [him]." While co-workers apparently did not complain about covering his time, employer had reason to believe that such forbearance may be short-lived. Employer was not obligated by Title VII to give the employee a special leave of absence for a recurring obligation: "If Firestone were to grant a special exception for Wise for recurring obligations, it would have imposed the same type of burdens on the seniority-based scheduling system and Wise's fellow employees as if it had excused him from the attendance policy altogether."

EEOC v. Federal Express Corp., 513 F.3d 378, 20 AD Cases, 204 (4th Cir. 2008). Panel: KING, Gregory, Wilson. Claim on Appeal: ADA failure to accommodate. Disposition Below: Judgment after a jury trial; $8,000 in compensatory damages and $100,000 in punitive damages [plaintiff]. Outcome on Appeal: Affirmed [defendant]. Grounds: Jury could have found that employer neither accommodated the employee (providing signer for deaf worker), nor engaged in good-faith efforts to comply with the law, warranting award of punitive damages. Record showed that manager knew of his ADA obligation to provide reasonable accommodations to employee for his deafness disability, and thus perceived the risk that his failure to do so would violate the ADA. For example, although manager did not receive any ADA training from company, he had contacted other company officials seeking clarification on what might constitute reasonable ADA accommodations for the employee. Concerning good faith/Kolstad, although company maintained a formal ADA compliance policy, the company failed to respond to repeated inquires by manager to supply an signer or to train manager how to respond. Regarding evidence of reprehensibility, supervisors were plainly indifferent to fact that failure to accommodate disability could jeopardize his safety, and potentially implicate the safety of others. Employee consistently missed updates about important subjects such as workplace safety, handling dangerous goods, interpreting hazardous labels, and potential anthrax exposure. Size of award was reasonable, in spite of 12.5 to 1 ratio of punitive to actual damamges: in addition to finding that the award met the due process guideposts (BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996)), it also observed that the award was well within the caps set under Title VII.

Wilson v. Phoenix Specialty Mfg., 513 F.3d 378, 20 AD Cases 193 (4th Cir. 2008). Panel: MICHAEL,Ellis[NIEMEYER,dissenting]. Claim on Appeal: ADA regarded-as termination. Disposition Below: Judgment after a bench trial; $177,783 in back pay, $10,000 compensatory damages and $10,000 punitive damages [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Record supported the finding that the employee with Parkinson's was regarded as disabled (i.e., substantially limited in the major life activities of seeing and performing manual tasks, such as using the computer) when he was terminated. Evidence included an e-mail from the president to HR stating that the employee was disabled and "qualifies for ADA designation," history that the company originally ignored the employee's medical release to return to work, a pattern of senior management treating the employee "like [he] was a handicapped person," and refusal to train or allow the employee to use the computer for tasks central to his job. Employer "believed that Wilson's Parkinson's symptoms were substantially more limiting than they actually were, as indicated in further findings by the district court and the record." District court could have found that employer evaluated the employee inaccurately; doctor's report showed that symptoms were under control with medication, and that employee with training could have performed essential tasks of supervisory job. The panel also found that the district court could have reasonably disbelieved the company's various proffered reasons for the termination (gave different reasons to EEOC, claimed for first time at trial that employee's job became redundant with new computer system). Record revealed scheme to fire employee and replace with employee without disabilities. (Panel does not reach circuit split on providing accommodation to regarded-as employee, because verdict on discrimination made it unnecessary to reach accommodation issue..) On cross-appeal, district court did not abuse discretion by denying front pay where physician rated him unemployable by the end of 2005.

Frahm v. United States, 492 F.3d 258, 100 FEP 1631 (4th Cir. 2007). Panel: WIDENER, Duncan, Goodwin. Claims on Appeal: Enforcement of settlement agreement . Disposition Below: Judgment of no relief for employee [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: IRS reneged on settlement of a Rehabilitation Act claim, failing to purge employee's personnel file of an allegedly discriminatory suspension. Employee's only remedy under the contract was to refile her original claim of disability discrimination. By regulation in EEO cases against the federal government, 29 C.F.R. § 1614.504(a) limits remedies for breach of a settlement agreement to either having the "terms of the settlement agreement be specifically implemented or, alternatively, [having] . . . the complaint be reinstated for further processing from the point processing ceased."

Depauli v. Vacation Sales Associates, LLC, 489 F.3d 615, 100 FEP 1249 (4th Cir. 2007). Panel: NIEMEYER, Duncan, Hamilton. Claim on Appeal: Title VII retaliation. Disposition Below: Judgment following a jury verdict ($7.7 million compensatory/punitive award capped at $200,000; $208,708 backpay, fees/costs of $239,865.38) [plaintiff]. Outcome on Appeal: Affirmed as modified [plaintiff]. Grounds: Evidence supported verdict that collapse in sales manager's performance was pretext for retaliation (witness testified that president of company told vice president "I'm not going to have any lawsuits on my watch"; same witness testified that VP expressed hope that placing employee in supervision would make her quit "for going to the EEOC; [the president] doesn't want her here any longer"; other employee said that when she told company she was going to file an EEOC charge, VP told her that "You don't want to do that . . . You will end up like Pam Depaoli"; plaintiff testified that VP admitted she did not get promotion because of filing her EEOC charge; receptionist testified that she was directed to steer interested customers away from the plaintiff and unsuccessful group tours to her group). Plaintiff not charged with proving that the efforts to sabotage actually worked, only that the attempt to manipulate her sales numbers is probative of intent to retaliate. Amount jury actually awarded immaterial to issue of excessiveness; evidence of emotional distress and willfulness of employer supported award. Mathematical error in calculating back pay (caused by using wrong figure for set-off) corrected. Cap is based on number of employees when event occurred, not the year of trial (42 U.S.C. § 1981a(b)(3)). District court erred in awarding fees at unsupported $305-325/hr rate (based on what defense attorneys charged in the same case); awarded counsel instead at $225/hr.

Holland v. Washington Homes, Inc., 487 F.3d 208, 100 FEP 1060 (4th Cir. 2007). Panel: WILLIAMS, Duncan [KING, dissenting in part]. Claims on Appeal: 1. Title VII termination (race) and retaliation. 2. Title VII discrimination. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant] 2. Affirmed [defendant]. Grounds: 1. Although employer represented to state Department of Labor that employee was fired for lack of work (and changed date of termination), explanation that employee was really terminated for "gross misconduct" (allegedly threatening supervisor) was not pretextual. No evidence rebutted employer's affidavits that manager sincerely believed that the employee made threats. Alleged conflict in testimony about when decision was made abandoned at oral argument. Employer gave rationale for it dual explanation (for benevolent reason, to preserve employee's 401K and unemployment benefits). No inference can be drawn that the false reason was a pretext for discrimination or retaliation. 2. Employee failed to establish that he was adversely affected by assignment of territory that employee believed was blighted and difficult to sell in. Other claims of discriminatory actions were time-barred and could not be combined as a continuing violation.

Aleman v. Chugach Support Services, Inc., 485 F.3d 206, 100 FEP 707 (4th Cir. 2007). Panel: WILKINSON, King, Ellis. Claim on Appeal: 1. Section 1981 discrimination and retaliation (employee #1). 2. Section 1981 termination (employees #2 and 3). Disposition Below: 1. Summary judgment (defendant). 2. Summary judgment (defendant). Outcome on Appeal: 1. Reversed (plaintiff). 2. Affirmed (defendant). Grounds: 1. Title VII exemptions for Alaska Native Corporations and Indian tribes (42 U.S.C. § 2000e(b); 43 U.S.C. § 1626(g)) do not apply to claim under section 1981. Noting split with Tenth Circuit . Court rejects alternative argument that section 1981 does provide cause of action for retaliation. 2. Collective bargaining agreement clearly and unmistakably consigned statutory discrimination claims to grievance mechanism. That employees were Spanish-speaking and may not have understood the CBA irrelevant, because they are not parties to contract and union was able to bargain their rights under NLRA. No "meeting of the minds" between employer and individual employees in bargaining unit required to make CBA enforceable. Employer not required to furnish Spanish language translation of contract, or to impel the union to do the same for union members. Dispute over effective dates of CBA not material.

Campbell v. Town of Southern Pines, 483 F.3d 258 (4th Cir. 2007). Panel: TRAXLER, Wilkins, Gregory. Claim on Appeal: 1. First Amendment termination. 2. Equal Protection termination. Disposition Below: 1. Summary judgment denied on qualified immunity (plaintiff). 2. Summary judgment denied (defendant). Outcome on Appeal: 1. Reversed (defendant). 2. Dismiss for lack of appellate jurisdiction (plaintiff). Grounds: 1. Female police officer presented genuine issue of material fact whether termination in response to 13-page memorandum complaining about harassment and other misconduct constituted comment on matter of public concern (multiple instances of inappropriate conduct, lewd conduct and comments directed and plaintiff and others, improper treatment of members of the public, memo addresses sexual harassment in police department generally). Notes split of authority over whethercomplaints of harassment must be specifically for a pattern of conduct or merely seeks personal redress. Summary judgment entered on second prong of qualified immunity analysis, e.g., whether right was clearly established. Officer's response to 13-page "rambling ... memo ... which focused overwhelmingly on personal grievances and vague gripes. 2. No jurisdiction over appeal of denial of summary judgment on qualified immunity, where only issues presented are disputed issues of fact about whether termination was motivated by gender.

Lettieri v. Equant Inc., 478 F.3d 640, 99 FEP 1569 (4th Cir. 2007). Panel: MICHAEL, Tilley, Johnston. Claim On Appeal: 1. Title VII termination (sex). 2. Title VII retaliation. State law contract (not discussed here). Disposition Below: 1. Summary judgment (defendant). 2. Summary judgment (defendant). Outcome On Appeal: 1. Reversed (plaintiff). 2. Reversed (plaintiff). Grounds : 1. District court erred in requiring employee to demonstrate on prima facie case that she was replaced by a man in her position -- and by holding that ultimate choice of male by second decisionmaker was not probative of discrimination -- when different decisionmakers performed the hiring and firing operations, and there was ample circumstantial evidence (firing manager recommended male employee for position, he was denied opportunity to fill the position during period of downsizing, plaintiff's job reemerged in another part of the organization and was filled by male despite plaintiff's excellent performance record and fact that successor manager brought her in to train her successor). Record also exposed firing manager's animus toward women (many comments about women who have children at home and had long commutes, repeatedly recommended that plaintiff should return to New York to be with her family, comments about other women's looks, manager attempted to demote her and removed responsibilities, final comment to plaintiff when fired was the she looked "pretty in pink"). 2. Passage of seven months between discrimination complaint and termination not determinative, because employee did not rely on temporal proximity; numerous intervening adverse acts intervened (stripping of supervisory responsibilities, staff, authority to negotiate with customers), manager signaled to management well before plaintiff's termination that he wanted to eliminate her job, and same manager wanted to replace her immediately with a male employee.

Johnson v. Caudill, 475 F.3d 645 (4th Cir. 2007). Panel : DUNCAN, Wilkins, Widener. Claim on Appeal: § 1983 termination (sex). Disposition Below: Denial of qualified immunity [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: The district court denied qualified immunity to a county sheriff who fired a female narcotics detective. Detective was implicated in an alleged discrepancy found in a drug-purchase report that she submitted to her superiors. This discrepancy led to her removal from work with the state's drug task force and eventually to her termination from her county employment by sheriff. Detective also claimed various instances where the sheriff supposedly denied her certain working conditions because of sex. While district court determined that there were disputed facts that precluded summary judgment, panel holds that the sheriff was qualifiedly immune from suit because his conduct did not violate the plaintiff's clearly-established constitutional rights. Once state severed employee's ties with the drug task force, she was unable to perform the core duties of her position under sheriff. As for other working conditions, record established that comparable males were treated the same way.

Gilliam v. SC Dept of Juvenile Justice, 474 F.3d 134, 99 FEP 865 (4th Cir. 2007). Panel: KING, Widener, Shedd. Claim on Appeal: Title VII harassment (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court erred in holding that employee had to allege severe or pervasive behavior within the 300 day charging period; under Morgan, only some of the activity had to fall within the 300-day window, and employee could benefit from continuing violation. Summary judgment affirmed on alternative ground that acts of harassment alleged by the employee (unfair write-ups for attendance, picayune complaints about performance, and even a claim of false imprisonment and assault by a manager) were not shown to be "based on race." Apart from the absence of outright racial animosity, the employee also supposedly failed to identify white comparators or to provide sufficient detail to ascertain whether a racialist inference could otherwise be drawn. Declarations by African-American co-workers who allege that same manager treated them more harshly than the white co-workers were also found to have too little detail to be probative.

Jordan v. Alternative Resources Corp., 458 F.3d 332, 98 FEP 1400 (4th Cir. 2006) . Panel: NIEMEYER, Widener [KING, dissenting]. Claims on Appeal : Title VII, § 1981 and Md. state law retaliation. State law contract and tort claims (not discussed here). Disposition Below: Dismissal under Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee who heard one racial comment by a co-worker ("They should put those two black monkeys in a cage with a bunch of black apes and let the apes fuck them"), uttered in response to reported capture of snipers John Allen Muhammad and Lee Boyd Malvo, lacked a reasonable good-faith basis at the time that he opposed an employment practice that violated Title VII. No allegation that co-worker intended to continue making such statements. Allegations that same co-worker had been heard by others to make similar (but specified) statements did not make objectively reasonable the employees belief that he had been personally subjected to a hostile work environment.

Hux v. City of Newport News, 451 F.3d 311, 98 FEP 492 (4th Cir. 2006). Panel: WILKINSON, Niemeyer, King. Claims on Appeal : Title VII promotion (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Female firefighter/medic who sought promotion to fire captain did not create genuine issue of material fact about pretext, where interview scoring process and experience placed her significantly below successful male candidate; that employee can foster factual disputes over particular qualifications does not affect suitability of summary judgment, where she presents no genuine issue of material fact about her deficiencies in interpersonal and supervisory skills, or other candidates' strenghts.

Howard v. Winter, 446 F.3d 559, 97 FEP 1729 (4thCir. 2006). Panel: WILLIAMS, Wilkins, Shedd. Claims on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Court follows Seventh Circuit standard for supervisor under Faragher/Ellerth, requiring that harasser be able to take "tangible employment actions." Male employee who allegedly harassed plaintiff was not "supervisor," because he possessed only "occasional authority . . . to direct her operational duties," and that such "minimal" authority did not "enable" his harassment. The court affirms summary judgment for the period prior to the employee's first verbal complaint to a senior member of human resources. The Navy maintained an adequate anti-harassment policy and was not on notice of harasser's behavior toward plaintiff (his use of offensive language and decoration of his workspace with pin-ups was not enough to signal actual suspicion of harassment). But after the employee orally informed a senior member of human resources - who advised employee to take notes about the harassment, but did not investigate or take corrective action - plaintiff presented a genuine issue of material fact about whether the Navy had been negligent in not following up.

Yashenko v. Harrah's NC Casino Co., LLC, 446 F.3d 541 (4th Cir. 2006). Panel: MOTZ, Traxler, Jones. Claims on Appeal: Section 1981 job preference. FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Even if section 1981 allows employee to challenge Indian preferences that are otherwise privileged under Title VII, employee cannot pursue claim without joining tribe as a necessary party, under Fed. R. Civ. P. 19, tribe has sovereign immunity and tribe is indispensable party.

Patton v. Signator Ins. Agency, Inc., 441 F.3d 230 (4th Cir. 2006). Panel: KING, Widener [LUTTIG, dissenting]. Claim on Appeal: Age discrimination. Disposition Below: Enforcement of award [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Arbitrator committed manifest disregard of the law and award failed to draw from the essence of the agreement, because arbitrator implied one-year limitations period for filing a claim, even though proceeding was governed by agreement without an express limitations term (which superceded agreement that imposed one-year term). Limitation term would either be state law limit for employment discrimination claim or contract claim.

Laber v. Harvey, 438 F.3d 404, 97 FEP 846 (4th Cir. 2006) (en banc). Panel: WILLIAMS, Wilkins, Wilkinson, Luttig, Michael, Motz, Traxler, King, Gregory, Shedd, Duncan [WILKINSON, concurring] [WIDENER, concurring and dissenting] [NIEMEYER, concurring and dissenting]. Claim on Appeal: 1. Title VII promotion (religion). 2. ADEA promotion. 3. Title VII/ADEA retaliation. Disposition Below: 1.Dismissed under Fed. R. Civ. P. 12(b)(1) [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1.Reversed [plaintiff]. 2. Affirmed [defendant]. 3.Affirmed [defendant]. Grounds: 1. Court overrules Pecker v. Heckler, 802 F.2d 709 (4th Cir. 1986), and Morris v. Rice, 985 F.2d 143 (4th Cir. 1993), and holds that federal employee who prevails before EEOC's Office of Federal Operations (OFO) but is unsatisfied with remedial award may not file a federal civil action in the district court seeking additional relief without putting at issue de novo the OFO's discrimination finding. (Noting split with Ninth Circuit.) While the proper objection is not subject-matter jurisdiction (which is furnished by 28 U.S.C. § 1331), the agency under such circumstances is entitled to summary judgment. Nevertheless, employee in this case was entitled to opportunity to amend complaint to add claim for liability as well as relief; district court abused discretion under Fed. R. Civ. P. 15(a) by denying plaintiff leave to amend. Delay alone insufficient basis to deny leave to amend. Proposed amendment, because it was offered post-judgment, required employee to obtain Fed. R. Civ. P. 59(e) motion to vacate judgment. District court's denial of Rule 59(e) motion was also an abuse of discretion. Plaintiff's attempted amendment was not in bad faith (he had been following circuit law as at stood at the time of the pleading); agency would not be prejudiced by amendment; and amendment was not futile. Moreover, although there was argument that amendment was not proposed until more than 90 days after OFO's final order, agency did not present this argument below, although it may present it on remand. 2. Employee did not make out prima facie case because he did not show he met the qualifications for the particular open job. 3. Employee did not show that proffered reason for failure to hire (lack of qualifications) was pretext for retaliation.

Wartch v. Ohio Casualty Ins., 435 F.3d 510, 97 FEP 563 (4th Cir. 2006) . Panel: TRAXLER, Motz, Shedd. Claims on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Noting split with Sixth Circuit, court holds that where employer alleges poor job performance as its reason for termination, it is correct at the prima facie level to consider whether employee was meeting legitimated job expectations, rather than defer consideration until third stage. Employee may at first stage argue that expectations were not legitimate. Evidence of reprimands about organization and procedures, and other counseling, not too subjective to consider at the first stage. Also no evidence that employee was replaced by substantially younger individual; plaintiff did not show that he was terminated as part of a RIF. No mixed-motive analysis where allegedly direct evidence (statement that "hiring people at that age, they didn't get the work out of them that they did younger people) had any nexus to termination. Single audit score, even if supposedly "rigged," not related to substantial evidence of inadequate performance. Alleged statistical evidence too speculative to create inference of discrimination.

Baqir v. Principi, 435 F.3d 510, 97 FEP 563 (4th Cir. 2006) . Panel: KING, Harwell [GREGORY, dissenting in part]. Claims on Appeal: 1. Title VII termination (race, religion, national origin). 2. ADEA termination. 3. ADEA harassment. 4. Title VII/ADEA retaliation. Disposition Below:.1.Summary judgment [defendant]. 2.Summary judgment [defendant]. 3.Summary judgment [defendant]. 4. Summary judgment [defendant]. Outcome on Appeal: 1.Affirmed [defendant]. 2. Affirmed [defendant]. 3.Affirmed [defendant]. 4. Affirmed [defendant]. Grounds: 1. Plaintiff, who was hired as interventional cardiologist was unable to meet professional standards in that job, so plaintiff's case failed on prima facie element (i.e. meeting legitimate job expectations). No evidence that peer evaluations were tainted by impermissible considerations. 2. Plaintiff presented sufficient evidence to infer age discrimination (remarks that age was the "major and only factor" for discharge and field was "meant for people in their thirties") was evidence of age animus, where it was made by decisionmaker on board during decision on employee's future. But under Price Waterhouse, employer would prevail as a matter of law because of employee's inability to perform job. 3. Occasional rude treatment and denial of proctorship insufficent to constitute severe or pervasive behavior. 4. Assuming that there is a claim for retaliation for federal employees (despite absence of comparable section under sections governing federal employees), and assuming plaintiff proves prima facie case, staff who committed alleged acts of retaliation were not shown to have known about the employee's complaint.

Davani v. Virginia Dep't of Transp., 434 F.3d 712, 97 FEP 380 (4th Cir. 2006) . Panel: WILLIAMS, Niemeyer, Shedd. Claims on Appeal: Title VII termination and retaliation. Disposition Below: Dismissed for lack of subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Reversing dismissal of claim on Rooker/Feldman grounds in light of intervening Exxon Mobile Corp. v. Saudi Basic Indus. Corp., 125 S. Ct. 1517 (2005).

Heiko v. Columbo Savings Bank, FSB , 434 F.3d 249, 17 A.D. Cases 780 (4th Cir. 2006). Panel: WILKINSON, Wilkins, Gregory. Claims on Appeal: 1. ADA promotion. 2. ADA constructive discharge. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Parties agree that end-stage renal disease is a physical impairment. Elimination of bodily waste, for employee who takes part in physically-demanding regimen of kidney dialysis, is a major life activity. Employee suffered a substantial limitation as a matter of law, where dialysis demanded 12 hours of treatments, caused him to be exhausted and nauseated, and treatment was expected indefinitely until transplant could be arranged. Genuine issue of material fact on merits of promotion claim. Employee presented prima facie case, plus evidence that plaintiff had comparatively greater relevant experience than other candidate, all indications were that the employee was progressing to promotion, other candidate had previously been considered weak, and employee's performance evaluations generally show him much stronger than other candidate. Manager had commented that employee was not suited for promotion ("look at your situation"). 2. Employer established as a matter of law that employer tried to accommodate employee; denial of single promotion not enough to create intolerable conditions.

Chacko v. Putuxent Institution, 429 F.3d 505, 96 FEP 1633 (4th Cir. 2005) . Panel: WILKINSON, Williams, Conrad. Claims on Appeal: Title VII harassment [national origin]. Disposition Below: Judgment entered after a jury trial; $1,160,000 damages (capped at $300,000). [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Co-worker harassment was not within the scope of plaintiff's two charges, which alleged specific episodes of harassment by supervisors; neither mentioned coworker harassment or national-origin epithets. "The administrative charges thus dealt with different time frames, actors, and conduct than the central evidence at trial." "[A] reasonable investigation of discrete instances of supervisor misconduct not involving name calling could not be expected to lead to a continuous pattern of nonsupervisory misconduct which did involve name calling."

Miles v. Dell, Inc., 429 F.3d 480, 96 FEP 1633 (4th Cir. 2005) . Panel: LUTTIG, Hamilton, Dever. Claims on Appeal: 1. Title VII termination (sex, pregnancy). 2. Title VII retaliation. Disposition Below : 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal : Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds : 1. Panel adopts new standard in McDonnell Douglas prima facie case that fourth prong need not be met (e.g. replacement by person outside of protected group) if employee was replaced by a different decisionmaker than the alleged discriminator, thus bringing circuit in line with all other circuits. Applied to this case, court finds that prima facie case is met by female plaintiff fired by her supervisor one year after her maternity leave. Supervisor had wanted to replace plaintiff with a man, but was overruled by management. District court erred also in finding that in pregnancy discrimination setting, protected group is women, instead of subset of pregnant women. Despite year-long lapse between announcement of pregnancy and termination, inference of discrimination can be located in actions of supervisor to replace her while she was pregnant, then increased her quotas in the hope of forcing her out. 2. Plaintiff failed to check "retaliation" box on EEOC charge, and claim could not reasonably been expected to follow from an administrative investigation of the charge. Charge did not mention protected activity or opposition. Letter by employee's lawyer five months later, not served on employer, does not cure defect.

Taylor v. Federal Express Corp., 429 F.3d 461, 17 A.D. Cases 498 (4th Cir. 2005): Panel: MOTZ, Traxler, Shedd. Claims on Appeal : ADA reasonable accommodation. Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds: Lifting restriction that disqualified individual with back pain from 1,871 kinds of jobs (according to vocational report), not a significant limitation in the major life activity of working, where record of employee's endurance, flexibility and strength finds him qualified for 1,400 different types of jobs (over 100,00 actual jobs in his geographic region) and able to engage in a wide variety of daily activity.

American General Life and Accident Ins. Co. v. Wood, 429 F.3d 83, 96 FEP 451 (4th Cir. 2005) . Panel: GREGORY, Traxler, King. Claims on Appeal: W. Va. discrimination (sex). DispositionBelow: Arbitration agreement enforced [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Arbitration agreement, though a contract of adhesion, enforceable under West Virginia law and the FAA. Court found no unfair provisions, and declined to give effect to state case law which set a higher standard for arbitration clauses in adhesion contracts as inconsistent with the FAA, in light of intervening U.S> Supreme Court decisions. No evidence of biased rules or excessive fees. Joiner of individual supervisor in case not a necessary and indispensible party under Fed. R. Civ. P. 19.

EEOC v. Navy Federal Credit Union, 424 F.3d 397, 96 FEP 641 (4th Cir. 2005). Panel: KING, Gregory, Hamilton . Claims on Appeal: Title VII retaliation. Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Reversed [plaintiff]. Grounds: EEOC not precluded by laches from pursuing a claim held up by a local FEP (fair employment practice) agency with which it had a worksharing agreement. On the merits, the plaintiff (who was assigned to supervise an employee who complained of racial discrimination) presented a triable issue of fact about whether she opposed an act of retaliation (transfer of complaining employee and preparation of a misleading performance evaluation that employer asked the plaintiff to sign). Plaintiff also presented triable issue of fact about whether she reasonably believed that the employer's conduct was retaliatory (transfer and evaluation were seen by plaintiff as prelude to termination of other employee, not purely administrative). Plaintiff presented genuine issue of fact about pretext, by showing that her alleged deficiencies in supervisory skills were rebutted by recent and favorable evaluation and performance awards), and that after plaintiff complained she was given a "special," unfavorable review. Plaintiff also presented evidence that her supervisor though that by complaining she was "doing herself in" and should start looking for other employment.

Sterling v. Tenet, 416 F.3d 338, 96 FEP 225 (4th Cir. 2005). Panel: WILKINSON, Wilkins, Gregory. Claims on Appeal: Title VII discrimination (race) and retaliation. Disposition Below: Rule 12(b)(6) motion to dismiss [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Case against CIA by covert agent barred by "state secrets doctrine," because case would inevitably require evidence that he was treated less favorably than similarly situated, non-African American agents and compel CIA to expose decision-making process that led to assignments.

Venkatraman v. REI Systems, Inc., 417 F.3d 418 (4th Cir. 2005). Panel: WIDENER, Duncan, Quarles. Claims on Appeal: Title VI and VII discrimination (race, national origin) and retaliation. Federal retaliation claim under 8 U.S.C. § 1182(n) (not discussed here). Disposition Below: Rule 12(b)(6) motion to dismiss [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Title VII claim fails owing to failure to file charge and exhaust administrative remedies. Title VI claim fails because it was waived by not citing claim in complaint or alleging foundational facts such as federal financial assistance.

Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 96 FEP 287 (4th Cir. 2005). Panel: MOTZ, Widener, Hamilton. Claims on Appeal: 1. Title VII retaliation. 2. Title VII discrimination promotion. Disposition Below: 1.Summary judgment [defendant]. 2.Summary judgment [defendant]. Outcome on Appeal: 1.Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Plaintiff waived objection to magistrate's report and recommendation, under Fed. R.. Civ. P. 72(b), by not renewing objection after matter was remanded to magistrate to produce new, corrected report. 2. Desert Palace did not abolish pretext method of proof. McDonnell Douglas prima facie test by itself does not prove the existence of a motivating factor under 42 U.S.C. § 2000e-2(m). Plaintiff does not foreclose using determining or motivating factor (e.g. mixed-motive) analysis where complaint is silent on method of proof. Although plaintiff was assumed to have made out prima facie case, she did not rebut evidence that white candidate was rated the best on nine factors by two managers, and an African-American manager agreed with that assessment. Although plaintiff contended she had greater experience, that was only one preferred factor in the hiring process.

Hill v. PeopleSoft USA, Inc., 412 F.3d 540, 95 FEP 1708 (4th Cir. 2005) . Panel: HAMILTON, Motz, Gregory. Claims on Appeal: Title VII discrimination and harassment (sex). Disposition Below: Denying motion to compel arbitration [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: District court, under Maryland law, erred in looking beyond terms of agreement to determine that the contract was not supported by consideration (because the employer reserved the right elsewhere to terminate the arbitration program without notice). On the face of the contract, there was no reservation of rights and both parties were bound equally to arbitrate.

Anderson v. Westinghouse Savannah River Co, 406 F.3d 248, 95 FEP 1121 (4th Cir. 2005). Panel: WIDENER [NIEMEYER, dissenting in part] [GREGORY, dissenting in part]. Claims on Appeal: 1. Title VII and §1981 promotion and compensation disparate impact (race). 2. Title VII and §1981 promotion and compensation disparate treatment (race). 3. Class certification . Disposition Below: 1.Summary judgment [defendant]. 2.Summary judgment [defendant]. 3. Certification denied [defendant]. Outcome on Appeal: 1.Affirmed [defendant]. 2. Affirmed [defendant]. 3.Reversed in part [plaintiff]. Grounds: 1. District court did not abuse discretion by excluding (1) expert opinion by Dr. Bradley under FRE703 that used EEO categories instead of actual job categories; (2) draft Department of Energy report, excluded as hearsay that did not satisfy FRE803(8) because of lack of reliability. Plaintiff did not make out prima facie case because evidence of causation was excluded, study did not regress for relevant factors such as performance at interviews, experience and education. Interview process was not wholly subjective or discretionary. 2. For each of three promotions, assuming plaintiff met prima facie requirements, she did not rebut as pretextual use of other criteria (ratings assigned through promotional process for core and functional competencies, relevant experience) over plaintiff's length of service and educational credentials. Evidence that supervisor "preselected" one candidate not sufficient to create inference of race bias. 3. Plaintiff lacked standing and was not adequate to represent class because summary judgment was granted as to her disparate impact pay and promotion claims and she voluntarily dismissed disparate treatment merit pay claim. Promotion claim was not entirely disposed of on summary judgment; claim remanded to remain on district court calendar for a reasonable period to allow a new representative plaintiff to pursue.

EEOC v. Seafarers Int'l Union, 394 F.3d 197, 95 FEP 35 (4th Cir. 2005) . Panel: WILKINSON, Michael, King. Claims on Appeal: ADEA hiring. Disposition Below: Motion to dismiss denied [plaintiff]. Outcome on Appeal: Affirmed on interlocutory appeal [plaintiff]. Grounds: Uphold EEOC regulation extending ADEA prohibitions to "all apprenticeship programs" (29 C.F.R. § 1625.21). Although ADEA did not expressly extend to apprenticeship, regulation was entitled to Chevron deference.

Wheatley v. Wicomico County, MD, 390 F.3d 328, 94 FEP 1409 (4th Cir. 2004). Panel: WILKINSON, Luttig, Hudson. Disposition Below: EPA/Title VII pay discrimination (sex). Disposition Below: Judgment as a matter of law [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds : Plaintiffs failed to show as a matter of law that their positions as department managers were equivalent to male department heads in skills and responsibility, despite sharing general supervisory duties (budgeting, monitoring employees, etc.). Plaintiffs attempt after close of case-in-chief to recast comparison to other male employees in comparable grade codes was waived because it was presented too late in the proceedings and posed unfair prejudice to defendant.

Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 94 FEP 577 (4th Cir. 2004). Panel: BEEZER, Widener, Williams. Claims on Appeal: 1. Section 1981 termination or constructive discharge. 2. Section 1981 retaliation. 3. Section 1981 failure to promote. 4. Section 1981 harassment. Disposition Below: 1.Summary judgment [defendant]. 2.Summary judgment [defendant]. 3.Summary judgment [defendant]. 4. Summary judgment [defendant]. Outcome on Appeal:1.Affirmed [defendant]. 2. Affirmed [defendant]. 3.Affirmed [defendant]. 4. Affirmed [defendant]. Grounds: 1. Plaintiff's active job search while he was employed at defendant, culminating in his resignation (a month prior to the defendant tendering a severence agreement) negates any genuine issue of material fact about actual discharge. Regarding constructive discharge, plaintiff did not present genuine issue either that employer's behavior was intolerable (mostly negative comments about his performance), and no evidence that behavior was motivated to presure plaintiff to resign. 2. Plaintiff suffered no adverse employment action (exclusion from certain communications, negative evaluation, shunning). 3. Employees selected over plaintiff for promotion was chosen because of his prior client services; plaintiff did not raise genuine issue of material fact about pretext. 4. No evidence of racially-offensive conduct directed at plaintiff (much of plaintiff's evidence regards other employees). No evidence that friction between plaintiff and his supervisor was because of race.

Price v. Thompson, 380 F.3d 209, 94 FEP 449 (4th Cir. 2004). Panel: BOWMAN, Niemeyer, Wilkins. Claim on Appeal: Title VII retaliatory failure to hire. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court erred in finding that plaintiff could not establish by circumstantial evidence that decisionmaker knew he filed EEO complaint (manager knew that one of two applicants had filed complaint, indirect statements during interview implying knowledge, knowledge that plaintiff had investigated reason why he was not originally hired into prior position). Nine to ten month gap does not terminate inference of causation. Nevertheless, notwithstanding Reeves , plaintiff presented only a weak prima facie case, and was unable to rebut at least two of the four reasons the employer proffered for failure to hire plaintiff.

White v. BFI Waste Services, LLC, 375 F.3d 288, 94 FEP 73 (4th Cir. 2004). Panel: LUTTIG, King, Beezer. Claim on Appeal: 1. Title VII and §1981 compensation discrimination (race). 2. Title VII and §1981 hostile work environment (race). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1.Affirmed [defendant]. 2.Reversed [plaintiff]. Grounds: 1. Original grant of motion to dismiss on §1981 limitations erroneous in light of Jones v. R.R. Donnelley, which extended period from two to four years. However, Title VII limitations period is properly limited to period 300 days prior to filing charge, because each paycheck is a "discrete act." Plaintiff could not use "single filing" rule to rely on another employee's prior charge because he did not attempt to join the earlier action. No doctrine of "relation back" applies to prior charge of another employee. Claim that employer deliberately assigned African-American drivers lower pay codes relative to whites fails at prima facie stage, because plaintiffs did not identify similarly situated white drivers. If black or white drivers overstated their pay code, it was common practice for supervisors to lower the codes to match the code assigned by computer. Documentary evidence reveals no disparate treatment. Rule 56(f) motion properly denied upon magistrate's finding that plaintiff did not exercise sufficient diligence to obtain requested discovery by waiting until just before the discovery cutoff to demand certain documents. 2. Limitation of Title VII harassment claims to events occurring within 300 days of filing of charge erroneous in light of Morgan . On the merits, plaintiffs presented genuine issue of material fact about whether supervisors subjected plaintiffs to severe or pervasive harassment, by using a variety of racial slurs (including "nigger," "monkey," and "boy" on a daily basis). Plaintiffs also raised issue of fact regarding employer liability where there was evidence that employees made complaints under the policy that were not investigated and company representative admitted that making a racial complaint was a "big mistake." Triable issue of fact about whether harassment by different supervisors constituted continuing violation that would extend limitations period for claim.

Rohan v. Networks Presentations LLC, 375 F.3d 266, 15 A.D. Cases 1313 (4th Cir. 2004). Panel: DUNCAN, Widener [SHEDD, dissenting]. Claim on Appeal: ADA termination and harassment claims. Breach of contract (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff, a singer and actress with a touring company, suffered from posttraumatic stress disorder and depression. Her condition caused her to experience dissociative flashback episodes and she expressed suicidal intentions. She was involuntarily released from her contract. District court found that she was not "qualified" because she could not perform an essential function of her job (interacting with others). Court disagreed with this conclusion, but affirmed on alternative ground that she did not suffer an impairment. Panel concludes taht she suffered an impairment assumes that "interacting with others" is a major life activity. It concluded that she was not substantially impaired in this activity because of her disability. For instance, she did not get along with her family because they did not believe her claims of incest (rather than her mental illness). She admitted that she was capable of social interactions, had half a dozen friends in the cast, and the thirty episodes she suffered in four months were sporadic and brief (no longer than 30 minutes). Plaintiff's alternative argument - the company regarded her a limited in the ability to perform as an actress in a touring company. -rejected because employer at most considered her limited in a particular facet of a particular job (i.e. weathering the stress of a theatrical tour).

Eastern Assoc. Coal Corp. v. Massey, 373 F.3d 530, 15 A.D. Cases 1224 (4th Cir. 2004). Panel: WILKINSON, Luttig, Shedd. Claim on Appeal: W. Va state law disability discrimination. Workers' compensation retaliation claim (not discussed here). Disposition Below: Motion to compel arbitration denied [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Collective bargaining agreement did not clearly and unmistakably confer state statutory civil rights claim to arbitration.

Williams v. Giant Food Inc., 370 F.3d 423, 93 FEP 1537 (4th Cir. 2004). Panel: SHEDD, Duncan [WIDENER, concurring]. Claim on Appeal: 1. Title VII and section 1981 promotion. 2. Title VII and section 1981 constructive discharge. Disposition Below: 1.Summary judgment [defendant]. 2.Summary judgment [defendant]. Outcome on Appeal: 1.Reversed [plaintiff]. 2.Affirmed [defendant]. Grounds: 1. Claims prior to 1998 were time-barred, notwithstanding individual plaintiff's "pattern or practice" and continuing violation allegations. Claims of two promotions presented genuine issue of material fact, where employer claimed that the jobs postings were distributed to the stores, but plaintiff (who was in charge of maintaining bulletin board and testified that she looked at it every day) stated that no such postings were made, and that she would have applied for at least one of them if she had known about them. Genuine issue of material fact also presented regarding whether plaintiff's performance evaluations were products of racial discrimination, which would have made application for one of the promotions futile. 2. Plaintiff failed to demonstrate constructive discharge where supervisors allegedly said she was a poor manager, gave her poor evaluations, hollered at her in front of customers and made her work with a sore back.

James v. Circuit City Stores, 370 F.3d 417, 93 FEP 1625 (4th Cir. 2004). Panel: WILLIAMS, Widener, Motz. Claim on Appeal: Section 1981 promotion claims. Disposition Below: Summary judgment denied on timing grounds [plaintiffs]. Outcome on Appeal: Reversed [defendant]. Grounds: Following Jones v. R.R. Donnelley, court affirmed decision below on timing grounds, where district court correctly applied 4-year limitations period. But plaintiffs who were putative class members would not be allowed to rely rely on tolling agreement between law firm and defendant, where those plaintiffs were not clients of the law firm at the time and whose claims fell outside of alleged class claims that were known at the time of the tolling agreement.

James v. Booz-Allen & Hamilton, 368 F.3d 371, 93 FEP 1418 (4th Cir. 2004). Panel: WILKINSON, Traxler, Shedd. Claim on Appeal: Title VII reassignment Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Reassignment from Project Manager to Senior Associate, which did not change salary or bonus, resulted in a later raise in pay, and kept him in line for promotion not an adverse employment action. One-level reduction in employment evaluation from "excellent" to "highly effective" did not affect any terms or conditions of employment. No evidence of constructive discharge where only evidence presented was allegedly negative comments about plaintiff made during a partners' meeting.

EEOC v. Warfield-Rohr Casket Co., Inc., 364 F.3d 160, 93 FEP 952 (4th Cir. 2004). Panel: WILKINS, Michael, Hamilton. Claim on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Statement by decision maker at time of termination that 56-year-old employee was "getting too fucking old" and that 33-year-old employee could "give him more years" constituted direct evidence under Price Waterhouse framework. Such "direct evidence" need not be corroborated to trigger mixed-motive analysis. Employer could not demonstrate as a matter of law that employee would have been fired for financial reasons (he offered to take pay cut) or friction with co-workers (disputed issue).

Mackey v. Shalala, 360 F.3d 463, 93 FEP 711 (4th Cir. 2004). Panel: WIDENER, King, Seymour. Claims on Appeal: 1. Title VII hiring (sex) 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant] 2. Judgment after a bench trial [defendant]. Outcome on Appeal: 1. Affirmed [defendant] 2. Affirmed [defendant]. Grounds: 1. Assuming that plaintiff met prima facie test, plaintiff failed to prove pretext where male candidate exhibited superior educational credentials, and only evidence in rebuttal was alleged violation of internal hiring procedures. 2. Plaintiff failed to make out prima facie case where job transfer was not accompanied by reduction in compensation or promotional opportunities, and plaintiff was found to lack credible evidence that transfer was causally related to her EEO complaints.

Mereish v. Walker, 359 F.3d 330, 93 FEP 608 (4th Cir. 2004). Panel: WILKINSON, Niemeyer, Hamilton. Claims on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Termination of three scientists during reduction in force. Assuming that plaintiffs satisfied prima facie requirements, agency's explanation that scientists' expertise was no longer central to current research priorities was legitimate and non-discriminatory. References to generational change ("young, bright, junior scientist," "average age going higher") do not present triable issue of pretext, and in any event referred to scientists with more recent training and current skills, rather than to age. Moreover, layoff decisions were made by category rather than by individual, and plaintiffs could not demonstrate that categories were selected as pretext for firing older scientists. Claim that RIF was unnecessary unsupported by record. No age bias pattern to layoffs; older scientists in preferred fields were saved from RIF. No direct evidence to trigger "mixed-motive" analysis per Price Waterhouse.

Love-Lane v. Martin, 355 F.3d 766, 93 FEP 282 (4th Cir. 2004). Panel: MICHAEL, Gregory, [WILKINSON, dissenting on first Amendment claim]. Claims on Appeal: Title VII, Section 1981 and 1983 demotion (race) First Amendment claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Although plaintiff obtained reversal of summary judgment on First Amendment claim (retaliation for speaking our against racial discrimination in discipline of elementary school students), summary judgment was affirmed on parallel claim that plaintiff suffered race discrimination by being demoted from school administration to teaching. Plaintiff presented genuine issue of material fact on prima facie burden, but despite evidence (credited on First Amendment claim) that the school board's reason was pretextual, such a finding would not necessarily allow inference of race discrimination, given alternative explanation (that plaintiff was fired for speaking out against disciplinary policies).

Hedin v. Thompson, 355 F.3d 746, 93 FEP 311 (4th Cir. 2004). Panel: MOTZ, Luttig, Duncan. Claims on Appeal: ADEA and Title VII promotion claim (reverse discrimination). Disposition Below: Dismissed under Fed.R.Civ.P. 12(b)(1) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff's claims barred by judicial "military exemption" and 42 U.S.C. §213(f), held to exclude commissioned officers in Public Health Service from coverage under anti-discrimination statutes.

Hill v. Lockheed Martin Logistics Mgt., Inc., 354 F.3d 277, 93 FEP 1 (4th Cir. 2004) (en banc). Panel: TRAXLER, Widiner, Wilkinson, Niemeyer, Luttig, Williams, Shedd [MICHAEL, Motz, King, Gregory, dissenting]. Claims on Appeal: Title VII and ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Individual to whom racial/age animus had been attributed was a safety inspector, a subordinate with no managerial authority over the plaintiff. Inspector allegedly singled the plaintiff out for violations because of race and age. These reports ultimately played a role in the plaintiff's termination, but the court refused to consider this level of involvement enough to trigger application of the discrimination statutes. Court holds that survive a motion for summary judgment, plaintiff must show that "subordinate employee possessed such authority as to be viewed as the one principally responsible for the decision or the actual decisionmaker for the employer."

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