“But-For This,” “But-For That” -- Multiple “But-For” Causes Possible In Title VII Retaliation Claim

Garrett Wozniak
Garrett Wozniak
12/26/2013
The Second Circuit Court of Appeals delivered Zann Kwan an early Christmas present earlier this month when it concluded that her former employer was not entitled to summary judgment on her retaliation claim.  Zann Kwan v. Andalex Grp. LLC, No. 12-2493 (2d Cir. Dec. 16, 2013).  From April 2007 until September 2008 Zann Kwan worked as the Vice President of Acquisitions for The Andalex Group, a small family-owned real estate management company based...
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Employee Who Was Repeatedly Sniffed by Co-Workers and Fired For Swatting a Fly May Bring Retaliation Claim

Kollman & Saucier
Kollman & Saucier
11/26/2013
Accusations of coworkers repeatedly “sniffing and hovering.”  An employee terminated allegedly because she slammed a door and “swatted a fly harder than necessary.”  Sounds like a great place to work, doesn’t it?  This is the alleged work environment in a recent lawsuit decided by the United States Court of Appeals for the Fifth Circuit. Royal v. CCC&R Tres Arboles, LLC,  No. 12-11022 (5th Cir. Nov. 21, 2013). Tonia Royal worked as...
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Supreme Court Holds That “But-For” Standard Applies In Title VII Retaliation Cases

Darrell VanDeusen
Darrell VanDeusen
06/25/2013
In one of the biggest employment cases this year, in a 5-4 decision the Supreme Court  held that the mixed-motive theory under employment discrimination laws cannot be used in retaliation claims. Univ. of Texas Sw. Med. Ctr. v. Nassar, 2013 U.S. LEXIS 4704 (June 24, 2013).   In Nassar, the Court addressed the federal circuit split that has developed following its 2009 decision in Gross v. FBL Financial Servs. Inc., 557 U.S. 168 (2009). A little...
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10th Circuit Affirms SOX Whistleblower Ruling

Eric Paltell
Eric Paltell
06/08/2013
On June 4, 2013, the United States Court of Appeals for the 10th Circuit affirmed a ruling by the United States Department of Labor's Administrative  Review Board and held that Lockheed Martin violated the Sarbanes-Oxley Act (“SOX”) by constructively discharging an employee after she complained about an executive who allegedly had sexual affairs with soldiers she met through the company's pen-pal program.  Lockheed Martin Corp. v. ARB, 10th Cir...
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Maryland Judge Dismisses Discrimination and Retaliation Claims

Eric Paltell
Eric Paltell
05/06/2013
On May 1, 2013, Maryland’s newest federal judge, George Levi Russell, III, dismissed a lawsuit filed by a former employee of a kidney dialysis clinic near Baltimore.  In Ezeh v. Bio-Med. Applications of Md., No. 11-3411 (D. Md. 2013), Judge Russell granted summary judgment to the employer and dismissed plaintiff’s claims of retaliation and race and national origin discrimination. The plaintiff, Perpetua Ezeh, is of Nigerian descent and worked...
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No Employer Liability For Sexual Harassment If Employee Doesn’t Complain About Sex-Based Conduct

A federal appeals court recently held that an employer was not liable for sexual harassment to an employee who complained only about harassment, not sex-based harassment.  Medina-Rivera v. MVM Inc., No. 11-2419 (1st Cir. April 10, 2013). In 2008, Estrella Medina-Rivera worked as a part-time detention officer for MVM, Inc., a security company in Puerto Rico.  In October 2008, Medina complained to her supervisor that an unnamed federal agent with...
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Employer’s Consistent Explanation for Discharging Employee Defeats Discrimination Claims

In Anderson v. Discovery Communications, 8:08-cv-02424, 2013 WL 1364345 (4th Cir. Apr. 5, 2013), the Fourth Circuit affirmed a decision from the United States District Court for the District of Maryland granting summary judgment to Discovery and a cadre of individual defendants on claims under the Americans with Disabilities Act (ADA), Montgomery County Human Rights Act (MCHRA), and Family and Medical Leave Act (FMLA). Though unremarkable in and of...
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Former Virginia Tech Employees’ Title VII and Equal Pay Act Claims Remain Viable

Garrett Wozniak
Garrett Wozniak
03/06/2013
The Fourth Circuit recently issued an opinion addressing employment discrimination allegations raised by three former female employees of Virginia Tech University.  In Maron v. Virginia Polytechnic Institute and State University, No. 12-1146 (4th Cir. Jan. 31, 2013) (unpublished), the plaintiffs claimed that Virginia Tech violated the Equal Pay Act (EPA) when the University paid female employees less than males employees performing the same work. ...
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Liquidated Damages In FLSA Retaliation Claims Are Not Mandatory

Darrell VanDeusen
Darrell VanDeusen
02/18/2013
Is it a requirement to award liquidated damages in a wage and hour retaliation case?  The question has been raised before and rejected.  It has now been rejected again.  This time, in Moore v. Appliance Direct, Inc., 2013 U.S. App. LEXIS 3047 (11th Cir. Feb. 13, 2013), the Eleventh Circuit held that the plain language of the Fair Labor Standards Act (FLSA) makes the award of liquidated damages discretionary and agreed with the Sixth and Eighth...
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Employer Not Liable Under FMLA for Terminating Employee for Falsifying Reports

Randi Klein Hyatt
Randi Klein Hyatt
01/15/2013
A former FedEx mail courier sued the global delivery service company after being terminated for falsifying delivery records following her return from leave under the Family and Medical Leave Act.  Kimberly Laing, a twenty-one year employee, claimed FedEx terminated her in retaliation for taking FMLA leave and failed to restore her to an equivalent position after she came back.  The Fourth Circuit Court of Appeals unanimously affirmed summary...
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