On June 29, 2010, the Supreme Court granted certiorari to decide whether the anti-retaliation provision of Title VII forbids an employer from “inflicting reprisals on a third party, such as a spouse, family member, or fiancé, closely associated with the employee” who engages in protected conduct, and “if so, may that prohibition be enforced in a civil action brought by the third party victim?”

In Thompson v. North American Stainless, No. 09-291, Thompson’s fiancé, now wife, filed an EEOC complaint alleging that her supervisors discriminated against her based on her gender.  Approximately three weeks after learning of the complaint, North American Stainless fired Thompson.  Thompson sued alleging that his employer violated the anti-retaliation provision of Title VII.  The district court granted summary judgment which the Sixth Circuit affirmed en banc, holding that: 1) Thompson was not a member of a protected class; and 2) Title VII does not create a cause of action for third-parties that suffer retaliation without personally engaging in protected activity.  The case docket is available here.

Title VII prohibits an employer from discriminating against an employee or job applicant based upon that individual’s sex, race, color, national origin, or religion.  Title VII also prohibits an employer from retaliating against an employee or applicant who speaks out against unlawful discrimination.  To learn more about The Employment Law Group® law firm’s Discrimination Law 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 November 12, 2009, the United States District Court for the District of Columbia issued an opinion reinforcing the notion that “the Supreme Court favors an increasingly broad interpretation of statutes containing anti-retaliation provisions.”  In the case, Mansifield v. Billington, a plaintiff filed a motion for relief upon reconsideration of a previously dismissed retaliation claim brought under the Equal Pay Act. 

The plaintiff delivered a letter to her employer alleging that she was being paid less than her male counterparts.  About two weeks later, she was told her position was being eliminated.  She filed a complaint alleging gender discrimination under Title VII and retaliation under the EPA.  Her retaliation claim was dismissed in June 2006 and her Title VII claim in September 2008.  In October 2009, she filed her motion on the basis that evolving federal case law and recent Supreme Court decisions support her position.  The Court granted the motion, citing the “changing trend in the interpretation of federal laws prohibiting retaliation in the work place.”  The Court also acknowledged that retaliation is another form of intentional discrimination.

For information on The Employment Law Group® law firm’s Equal Pay Act Practice, click here.

On November 21, 2009, the Genetic Information Non-Discrimination Act of 2008 (P.L. No. 113-233) also known as GINA will take effect.  Title II of the Act prohibits employers, employment agencies, and other employment related entities from discriminating against an employee or applicant due to genetic information.  Some of the prohibited acts include failing or refusing to hire, or to refer for hiring, an individual due to genetic information.  Covered entities are also prohibited from discriminating with respect to “compensation, term, conditions, or privileges of employment…because of genetic information with respect to the employee.” 

The Act restricts the ways in which an employer may go about obtaining genetic information from an individual and their family.  With a few narrow exceptions, employers and other covered entities are prohibited from requesting, requiring, or otherwise obtaining genetic information about an employee or their family.  This includes an employee’s or applicant’s family medical history.  The Act also mandates certain privacy restrictions regarding the sharing of genetic information, similar to the restrictions contained in the Health Insurance Portability and Accountability Act (HIPPA).

Employment rights under the Act are to be enforced by the Equal Employment Opportunity Commission (EEOC).  The EEOC has mandated that employers display new posters with disclosures about this law where other Equal Employment Opportunity posters are required.  As with most federal employment laws, enforcement of employee rights under this Act can be complex and may require that an individual first file an administrative complaint. 

For information on The Employment Law Group® law firm’s Discrimination Law Practice, click here.

On November 3, 2009, the 5th Circuit Court of Appeals held that a Sarbanes-Oxley Act (SOX) claim can be precluded by a failed Title VII discrimination suit.  The per curium decision came in Thanedar v. Time Warner, Inc..  To determine whether the SOX claim was barred, the Court used a transactional test and found that “the two claims rest on ‘the same nucleus of operative facts.’”  Accordingly, the preclusive effect of the prior Title VII judgment “extends to all rights the original plaintiff had ‘with respect to all or any part of the transaction, or series of connected transactions, out of which the [original] action arose.’”

For information on The Employment Law Group® law firm’s Sarbanes-Oxley Practice, click here.

On November 3, 2009, a bill entitled the Emergency Influenza Containment Act (H.R. 3991)  was introduced by U.S. Rep. George Miller (D-CA) and referred to the House Committee on Education and Labor.  The bill provides up to five days paid leave for employees sent home by their employer due to a contagious illness.  The purpose is to “ensure that American workers are able to follow, without financial harm, the recommendations of their employer and public health authorities to stay home when they have symptoms of a contagious disease” that may put other at risk.

The bill provides up to five days paid leave per year to employees that are instructed or advised to miss work by an employer who believes the employee has symptoms of a contagious illness or has been in close contact with an individual with symptoms of a contagious illness.  The Act states that an employer that violates its provisions will be considered to be in violation of the Fair Labor Standard Act’s minimum wage provision and subject to prosecution.  The Act also prohibits retaliation and discrimination against any employee who follows their employer’s direction to miss work or seeks enforcement of his or her rights under the Act.

Excluded from the Act are employers with 15 or fewer employees and employers that provide at least five days of sick leave per year.  Additionally the bill contains a sunset provision and if passed, will expire two years after its effective date.  Hopefully this bill will aid in slowing the spread of the H1N1 virus, better known as the Swine Flu.

For information on The Employment Law Group® law firm’s Non Payment of Wages Practice, click here.

On October 9, 2009, the California Court of Appeals issued a decision in Nazir v. United Airlines, Inc. In a case which cautions defendants against over-burdening a plaintiff in the employment context, the Court reviewed “what well may be the most oppressive motion ever presented to a superior court.”  In this opinion, the Court took on the growing problem of abuse of the summary judgment procedure, particularly in employment litigation, “especially by deep pocket defendants,” seeking “to overwhelm less well funded defendants.”

Defendants filed an astounding 1,056 page motion for summary judgment, an 1,150 page further reply, and hundreds of evidentiary objections to plaintiff’s response.  Regarding the numerous objections made by the defendants, the Court asked, “Can this be serious?  Can counsel see themselves rising at trial with those objections while plaintiff is testifying before a jury?”  Given the quality of the objections, the Court reasoned that apparently the defendants “assign[ed] the most junior lawyer to ‘do the objections,’” and suggested that “[p]erhaps a wiser practice would be to have the most experienced lawyer, presumably with a better understanding of the law of evidence, deal with the objections.”

The motion was harshly criticized by the Court both for its length and frivolity.  The Court reversed the trial court’s granting of the defendants’ motion and awarded costs to the plaintiff.

For information on The Employment Law Group® Law Firm’s Employment Discrimination Law 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.