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Employment Discrimination

Employment discrimination:  A Title VII retaliation claim must allege objectively deterrent action
In Cook v. Billington, 2011 U.S. Dist. Lexis 88284 (D.D.C. Aug. 9, 2011), the United States District Court for the District of Columbia emphasized that to successfully state a claim for retaliation under Title VII, an employee must allege that when he or she engaged in, or attempted to engage in, a protected activity, his or her employer responded in a materially adverse, or objectively deterrent, manner.

The Howard R.L. Cook & Tommy Shaw Foundation ("the Foundation") is a nonprofit organization comprised of employees of the Library of Congress ("the Library"). The Foundation's activities include assisting Library employees bring employment discrimination suits against the Library. The Foundation repeatedly requested formal recognition by the Library on the basis that such recognition would permit the Foundation to hold meetings at Library facilities and distribute materials to Library employees. The Library repeatedly denied the Foundation's requests.

Ultimately, the Foundation filed a lawsuit against the Library, alleging that the Library's failure to formally recognize the Foundation was a direct response to the Foundation's opposition to employment discrimination at the Library, and thus, constituted unlawful retaliation in violation of Title VII. The Foundation posited that the Library's refusal to recognize the Foundation constituted a materially adverse action because the Foundation's lack of formal recognition could potentially dissuade a Library worker from filing suit against the Library. The Library submitted a motion to dismiss the suit for failure to state a claim upon which relief could be granted, arguing that the denial of recognition did not constitute a materially adverse action because it did not prohibit the Foundation and its members from operating and associating.

Upon consideration of the Library's motion to dismiss, the U.S. District Court instructed that both parties had failed to properly apply the materially adverse standard as articulated by the Supreme Court in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). The court reminded that pursuant to this standard, the appropriate legal question is not whether a plaintiff subjectively found an action materially adverse, but rather, whether the action would dissuade the objective, reasonable worker from making or supporting a complaint. It further reminded that a materially adverse action includes not only employer conduct that bars an employee from making, or supporting, a charge of discrimination, but also conduct that could deter a reasonable employee from engaging in these activities. Applying the standard to the facts alleged, the court concluded that the Plaintiff had failed to state a claim upon which relief could be granted because the purported benefits of formal recognition by the Library (i.e., the ability to hold meetings on Library premises and distribute literature to Library employees), were simply not significant enough to deter a reasonable employee from complaining of discrimination for fear of jeopardizing his or her employment.

Posted by Mandy M. Wolfe, Esq. on 09/23/2011 at 02:17 PM
Employment DiscriminationPermalink

Employment discrimination action dismissed in favor of arbitration under employment agreement
In Ratliff v. Costar Realty Information, Inc., No. 11-0813 (D. Md. July 7, 2011), the U.S. District Court for the District of Maryland granted a motion to compel arbitration of an employment discrimination action. At the time she was hired, the plaintiff signed an employment agreement with Costar, which included an arbitration clause. The arbitration clause expressly included that obligation to arbitrate employment disputes concerning claims for discrimination or harassment.

Nine months after she was hired, the plaintiff was terminated. He later filed suit, alleging racial discrimination and retaliation in violation of federal and state laws. After removing the action to federal court, Costar filed an answer and then three days later, filed its motion to compel arbitration.

The plaintiff opposed the motion to compel arbitration on the grounds that (1) the arbitration agreement was illusory; (2) the arbitration agreement was unsconsionable; and (3) Costar waived its right to arbitrate due to delay in demanding arbitration. The district court rejected all three arguments.

The district court ruled that the arbitration agreement was not illusory, notwithstanding that the employee handbook stated that the employer had the right to change any of its guidelines, policies, practices, working conditions, or benefits at any time, because the arbitration agreement was a separate document from the employee handbook. The agreement to arbitrate was not a policy or benefit contained in the employee handbook. Further, the arbitration agreement contained mutual promises, so it was supported by consideration.

The court rejected the argument that the arbitration agreement was unconscionable, because the agreement did not deprive plaintiff of the right to raise any of the substantive claims she brought in her civil complaint. Further, not only did the arbitration agreement impose the same obligations on Costar, it provided that Costar would pay all costs of commencing arbitration and the remainder of the arbitration fees.

Finally, the court rejected the waiver argument, since Costar moved to arbitration just three days after it filed its answer.

Since all the issues presented in the lawsuit were arbitrable, the court dismissed the lawsuit, rather than stay the proceedings.

This opinion illustrates how an employer can draft an arbitration agreement for employment disputes that will pass muster with the courts.

Posted by David B. Stratton on 09/09/2011 at 06:04 PM
ArbitrationEmployment DiscriminationMarylandPermalink

In DCHRA case, Court affirms $1 compensatory damages and $42,677.50 in punitive damages
In Howard University v. Wilkins, Nos. 09-CV-318, 09-CV-319, and 09-CV-544 (D.C. June 30, 2011), the Court affirmed the plaintiff's verdict, in a District of Columbia Human Rights Act action for retaliation, of $1.00 in compensatory damages, and $42,677.50 in punitive damages. The plaintiff had alleged that Howard University had retaliated against her by terminating her employment because of her prior sexual harassment claim.

On appeal, Howard argued, among other things, that the size of the punitive damages award was constitutionally excessive, and that the trial court should have granted its motion for remittitur. The Court reviewed this issue under a de novo standard of review, yet still affirmed.

The jury had answered "yes" to a special interrogatory on the jury verdict form, which had asked, "Do you find by clear and convincing evidence that [Howard's] actions in terminating Ms. Wilkins were undertaken recklessly, maliciously, wantonly, and/or in reckless disregard to Ms. Wilkins' rights under the [DCHRA]?"

The D.C. Court of Appeals reasoned in part that although the Supreme Court has stated that few awards exceeding a single-digit ratio between punitive and compensatory damages will satisfy due process, the Supreme Court has repeatedly declined to impose a bright-line ratio which a puntive damages award cannot exceed. The D.C. Court of Appeals also cited to courts in other jurisdictions which followed the principle that greater ratios may comport with due process when reprehensible conduct results in only a small amount of economic damages.

The Court also considered that a punitive damages award must remain of sufficient size to achieve the twin purposes of punishment and deterrence. The Court observed that had the jury awarded $42,677.50 in compensatory damages, that amount would have seemed entirely reasonable. The Court also noted that if the jury's punitive damages award was reduced to an amount not significantly larger than nine times the actual damages, that would mean that Howard would receive a sanction of little more than ten dollars.

Therefore, the Court concluded that there is no need to disturb the jury's punitive damages award.

The Court also upheld the trial court's award of summary judgment to Howard based on qualified privilege. Interestingly, the plaintiff argued that Howard waived the affirmative defense of qualified privilege by failing to raise it in its answer. The Court of Appeals rejected that contention, pointing to a statement in Howard's motion for summary judgment which it deemed sufficient to raise the affirmative defense of privilege under Rule 8(c). On this point, Howard certainly dodged a bullet, because many courts in this region would probably find waiver of the affirmative defense under these circumstances.

Lastly, the Court found that the trial court did not abuse its discretion in determining that reinstatement of the plaintiff was inappropriate in this case. The trial court found that reinstatement was inappropriate because the plaintiff was on long-term disability at the time Howard retaliated against her, and that lingering animosity between plaintiff and Howard militated against ordering reinstatement.

Posted by David B. Stratton on 07/04/2011 at 05:44 PM
District of ColumbiaEmployment DiscriminationPermalink

Fourth Circuit affirms summary judgment on Title VII claims
In Bonds v. Leavitt, No. 09-2179 (4th Cir. Jan. 3, 2011) the Fourth Circuit affirmed the District Court's award of summary judgment to the defendant employer for three Title VII claims. (Note: the Court reversed the dismissal of the federal whistle blowing statute claims which are not addressed here.) The employment relationship appears to have been soured, in large part, by a dispute about the medical ethics of immortalizing cell lines taken from children who were subjects of a sickle cell study.

The employee attempted to assert a Title VII claim on the basis that she was retaliated against for opposing actions by the employer that allegedly infringed upon the rights of minority patients participating in a clinical trial. The Court ruled that even if the employee was attempting to prevent the employer from participating in allegedly discriminatory acts, the acts did not constitute unlawful employment practices. The Court stated that Title VII is not a general bad acts statute and affirmed summary judgment on the claim.

The employee also asserted a hostile work environment claim alleging that she was harassed. The claim was dismissed because the actions she alleged were harassing, such as her dismissal, were taken in response to performance issues and were not due to her race or gender. The Court upheld the dismissal.

Finally the Court affirmed the award of summary judgment on the Title VII claims because the Employee failed to demonstrate that the reasons for her dismissal were pretextual. The employee was not able to produce evidence to challenge the employer's non-discriminatory explanation for its decision to terminate her employment.

Posted by Sara A. Corle on 01/17/2011 at 11:43 PM
Employment DiscriminationPermalink

Fourth Circuit affirms award of summary judgment to defense in employment discrimination case
In Mascone v. American Physical Society, Inc., the Fourth Circuit affirmed the District Court's award of summary judgment to the defendant, and the District Court's denial of the plaintiff's motion for reconsideration.

The Court affirmed summary judgment on the wrongful termination claim, finding that the plaintiff failed to demonstrate that the employer used a forbidden consideration with respect to any employment practice. Further, she failed to show that the employer's proferred reasons for her dismissal were pretextual.

Further, the Court affirmed summary judgment on the plaintiff's pre-termination, gender-based disparate treatment claim. The plaintiff could not establish a prima facie case because she could not show that the other employee in question was similarly situated.

The Court rejected the plaintiff's mixed-motive claim under Title VII, because the plaintiff did not show that the protected trait actually motivated the employer's decision.

Finally, the Court affirmed the award of summary judgment on the plaintiff's retaliation claim. The plaintiff hired a firm to contact the employer pretending to be a potential employer. Plaintiff contended that she was given negative references in retaliation for engaging in protected activity. The Court found that plaintiff could not prove dissemination of false reference information that a prospective employer would view as material to its hiring decision.

Deborah Murrell Whelihan, Esq., of Jordan Coyne & Savits, LLP, represented the defendant in this matter.

Posted by David B. Stratton on 01/13/2011 at 04:15 PM
Employment DiscriminationMarylandPermalink