On May 18, 2010, Law360 reported on the latest news from Kennedy v. Virginia Polytechnic Institute and State University which we previously blogged about here and here.  The plaintiffs, a group of women working in the school’s development office, originally filed suit in November of 2008, claiming that they were paid less than equally qualified men who held the same fundraising jobs.  The plaintiffs have now filed a motion to certify a class action alleging that the school engaged in a pattern and practice of discrimination against female employees in the development office, paying females on average 15.2 percent less their male counterparts.  The motion seeks to certify a class of all female fundraisers hired between 2005 and 2009, approximately 25 individuals. 

The plaintiffs are represented by Mr. Nick Woodfield, a Principal at The Employment Law Group® law firm.  For more information about Mr. Woodfield and the firm’s Discrimination Law Practice, click here.

On March 26, 2010, Law360 reported on U.S. District Court for the Western District of Virginia Judge James C. Turk’s denial of the defendant’s motion to dismiss a putative class action alleging violations of the Equal Pay Act and Title VII.  The lawsuit, Kennedy et al. v. Virginia Polytechnic Institute and State University, claims that the school consistently discriminated against female employees and applicants and paid them less than their male counterparts. 

According to the complaint, Kennedy was offered a position with a salary $20,500 lower than the starting salary of the male she was replacing.  Explaining the difference in pay, the hiring manger told Kennedy, “you are a woman, and you’re not the head of your household.”  Her would-be predecessor “had a family to support and mouths to feed at home – that is why he was paid what he was paid.”  Further justifying her lower pay, Kennedy was told that, “‘hiring a woman can be a liability’ because ‘they could get pregnant’” and need time off.  A copy of the Memorandum Opinion is available here.

The plaintiffs are represented by Mr. Nick Woodfield, a Principal at The Employment Law Group® law firm.  For more information about Mr. Woodfield and the firm’s Discrimination Law Practice, click here.

On March 5, 2010, a jury in the United States District Court for the District of Columbia found Novartis Pharmaceuticals liable for retaliation in violation of the Family and Medical Leave Act (FMLA), awarding Mary Kate Breeden over $289,669 in back pay.  Under the FMLA’s liquidated damages provision, this amount is automatically doubled and entered as a partial judgment of $579,338.  The District Court has yet to decide the amount of front pay, attorney fees, and costs to award.

Kate Breeden worked as a pharmaceutical sales representative for Novartis.  After announcing that she was pregnant, Novartis cut her sales territory in half leaving her with fewer and smaller accounts.  When she objected to the change, her supervisor said it was temporary and that she would be made “whole.”  Upon returning from maternity leave, Ms. Breeden was informed that the changes were permanent.  Novartis later reorganized the sales territories again, at which time they consolidated her territory with another and eliminated her position.  Defending their actions, Novartis claimed that an outside consulting firm organized the realignment and did not take Ms. Breeden’s FMLA leave into account.  However, her maternity leave was mentioned in a Powerpoint presentation given by the consulting firm.

The jury found that Novartis retaliated against Ms. Breeden by cutting her sales territory when she announced that she was going to take leave or later when Novartis refused to make her “whole” after she returned to work, ultimately hurting her career and leading to her termination.  Ms. Breeden is represented by Adam Augustine Carter and R. Scott Oswald, Principals at The Employment Law Group® law firm.  For more information about Mr. Carter, Mr. Oswald and the firm’s Family and Medical Leave Act Discrimination Practice, click here.

On February 16, 2010, U.S. District Court for the District of Columbia Judge James Robertson allowed TELG client Mary Kate Breeden to proceed with her FMLA retaliation claim in Breeden v. Novartis Pharmaceuticals Corp.. Breeden worked as a pharmaceutical sales representative.  After announcing that she intended to take maternity leave, Novartis announced a restructuring of their sales territories reassigned Breeden to an area with lower sales.  After she objected, her manager said the change was temporary and that she would be “made whole.”  When she returned from leave, Breeden learned that the changes were permanent and was never “made whole.”  Novartis later reorganized the territories again, at which time they consolidated Breeden’s territory with another and terminated her position. 

Novartis claims that it would have taken the same actions regardless of Mrs. Breeden’s use of FMLA leave and sought summary judgment of her claims.  Judge Robertson granted the motion in part and dismissed Breeden’s discrimination claim.  However the Judge found that her employer’s decision not to make her “whole” could be seen as retaliatory.  The Judge held that “employees might reasonably fear that asserting their rights under the FMLA, as Breeden did, would result in diminished sales territories, with attendant risks of reduced opportunities for promotion and increased risk of termination.”  Further “Novartis’s eventual decision to terminate Breeden’s employment provides some ex post confirmation of the reasonableness of such fears.”

For more information about The Employment Law Group® law firm’s Family and Medical Leave Act Practice, click here.

On February 1, 2010, District of Columbia Superior Court Judge Erik Christian denied the defendants’ Motion to Dismiss in Altan v. IK Retail Group.  The defendants sought dismissal of Mr. Altan’s claims which include allegations of sexual orientation discrimination and retaliation.  The defendants argued that the court lacked subject matter jurisdiction, forum non conveniens, and that Mr. Altan had failed to state a claim upon which relief may be granted.

In siding with Mr. Altan, the court noted that the laws of the District and Maryland are substantially similar in this area and Maryland law grants venue both where the prohibited actions took place and the location where the decision was made to engage in the unlawful acts.  The court then proceeded to examine both public and private interest factors.  Observing that “the case involves a Defendant who is headquartered in the District of Columbia, and a substantial amount of the alleged discrimination against [the] Plaintiff originated in the District of Columbia,” the court found that it had the authority hear the matter and was unconvinced that there were any burdens sufficient to disturb Mr. Altan’s choice of forum.  

In analyzing defendants’ argument that Mr. Altan failed to state a valid claim, the court was clearly moved by the egregious facts alleged in Mr. Altan’s complaint, and found that it was certainly possible for Mr. Altan “to prove a set of facts which would entitle him to relief.”  A copy of the order is available here.

For more information on The Employment Law Group® law firm and its Sexual Orientation Discrimination Practice, click here.

On January 5, 2010, United States District Court Judge Bernice B. Donald denied, on all counts, defendant Hilton Hotels’ motion for summary judgment of state and federal claims of discrimination and retaliation, allowing Kumar v. Hilton Hotels Corp. to proceed to trial.  Mr. Manoj Kumar, an Indian native and former information technology department employee, alleges that he was denied a promotion due to alienage, retaliated against, and ultimately terminated in violation of Title VII of the Civil Rights Act, Section 1981, and the Tennessee Human Rights Act. 

Also included in Mr. Kumar’s complaint are allegations that he was told to start a business selling statues of a Hindu god and ridiculed over his accent.  After attempting to assert his rights, Mr. Kumar was retaliated against and ultimately terminated.  Hilton Hotels claims that the adverse employment actions suffered by Mr. Kumar were related to performance and in no way related to his national origin or alienage.  They also claim that continued poor performance and behavioral issues were to blame for his termination and not his engagement in the protected behavior of asserting his rights.  Finding that genuine issues of material fact exist surrounding all claims, Judge Donald appropriately denied the motion on all counts.  Importantly, Judge Donald also found direct evidence of alienage discrimination, prohibiting summary judgment from being granted.  A copy of the opinion is available here.  A jury trial is scheduled to begin January 19, 2010.

Mr. Kumar is represented by Adam Augustine Carter and R. Scott Oswald, Principals at The Employment Law Group® law firm.  For more information on the firm’s Discrimination Law Practice, click here.

On October 22, 2009, the Fourth Circuit Court of Appeals reversed a district court ruling granting summary judgment against TELG client Dean Inman.  Mr. Inman was the former Vice President of Technology at Klockner Pentaplast of America (KPA) based at their Charlottesville, Virginia location.  Klockner Pentaplast, KPA’s parent company is an international manufacturer perhaps best known for making rigid plastic films and blister packaging. 

Mr. Inman’s suit claims he was fired for being too old while the company underwent efforts to create a revitalized and younger appearance to lure potential buyers of the firm.  The appellate court issued a per curium decision holding that the trial court erred when it granted the motion since the facts alleged are sufficient to show that Mr. Inman was discriminated against on account of his age.  The case was argued by Adam Augustine Carter, a principal at The Employment Law Group® law firm, with R. Scott Oswald on the brief as well.  The AARP filed a brief as amicus curiae urging reversal in favor of Mr. Inman.  Dan Kohrman and Laurie McCann were on the brief for the AARP.

A copy of this opinion is available here.  For information on The Employment Law Group® law firm’s Age Discrimination Practice, click here.

On October 16, 2009, a magistrate judge for the Eastern District of Virginia denied a protective order filed by the defense.  The defendant in this case, Joseph Zengerle, was seeking to protect former employment records which go back over 20 years.

Mr. Zengerle and his employer, George Mason University, are being sued for sexual harassment, retaliation, assault and battery, and pay discrimination based on sex.  The plaintiff, Kyndra Rotunda, contends that Mr. Zengerle was fired by three previous employers, something the defendant denies.  The plaintiff is seeking information regarding the credibility of Mr. Zengerle and to see if he has any past incidences of sexual harassment.  This favorable ruling was covered by The Blog of Legal Times.  You can read their coverage here.

Mrs. Rotunda is represented by solo practitioner Rick Seymour with The Employment Law Group® law firm serving as local counsel.  For information about The Employment Law Group® law firm’s Discrimination Law Practice, click here.

Scott Oswald, a Principal of The Employment Law Group® law firm spoke at a D.C. Bar CLE event titled, “Changing Currents in Employment Law:  Recent Developments Update.”  The program, which took place on June 18, 2009, provided an overview of the new developments in employment law, including key issues that affect employers and employees during the current economic climate.  Mr. Oswald provided a summary of the ADA Amendments Act of 2008 and highlighted its impact on the definition of “disability” under the Americans with Disabilities Act.  Examples of definitional amendments include:

• Redefining the meaning of the term “substantially limits”;
• Amending the “regarded as” prong of the disability definition; and
• Amending the list of activities that constitute “major life activities” to include “major bodily functions.”

To view the full presentation, click here.

In an article titled, “More Bias Charges Filed in FYO8 Than Ever:  EEOC,” Law360 reports on the unprecedented increase of workplace discrimination charges filed with the Equal Employment Opportunity Commission (EEOC) in fiscal year 2008.   According to the article, the EEOC has reported a 15% increase in discrimination charges filed with the EEOC compared to fiscal year 2007.  The EEOC attributes the upsurge in filings, which totaled 95,402, to a number of factors, including demographic shifts in the work force, heightened awareness of the law, and the distressed economy.  Although the EEOC has reported that it has not seen an increase of this magnitude for many years, employment lawyers like Jason Zuckerman, a Principal at The Employment Law Group® law firm, are not surprised by the numbers.  According to Zuckerman, the EEOC’s numbers were consistent with what he observed in his practice.  His recommendation to the EEOC – more resources—“Having more resources for intake, for investigation and for prosecution would go a long way in helping [the EEOC] combat both discrimination and retaliation.”

The Employment Law Group® law firm routinely represents employees who face discriminatory practices in the workplace.  To learn more about The Employment Law Group® law firm’s Discrimination Practice, click here.