Category Archives: Fourth Circuit

Back from the USSR: FMLA Retaliation, 4th Circuit Decision in Dotson v Pfizer

Retal­i­a­tion law is one of the most devel­op­ing (and dan­ger­ous) areas of employ­ment law. I recent­ly spoke at the West Vir­ginia Employ­ment Lawyers Association’s annu­al con­fer­ence on retal­i­a­tion law, and I want­ed to go back and dis­cuss an impor­tant Fourth Cir­cuit deci­sion on the Fam­i­ly and Med­ical Leave Act of 1993, 29 U.S.C. § 2601 et seq.

Dot­son v. Pfiz­er: Adop­tion and the FMLA

The deci­sion is Dot­son v. Pfiz­er Inc., 558 F.3d 284 (2009), and involved alle­ga­tions of retal­i­a­tion stem­ming from leave tak­en for an inter­na­tion­al adop­tion from Rus­sia.

The jury award­ed $1,876 in dam­ages on the FMLA inter­fer­ence claim and $331,429.25 on FMLA retal­i­a­tion claim. The judge then award­ed $333,305.25 in statu­to­ry liq­ui­dat­ed dam­ages, $375,000 in attor­neys’ fees, and $14,264.88 in court costs. Both sides appealed. The Fourth Cir­cuit reject­ed all aspects of the employer’s appeal, but found the tri­al court made a mis­take in refus­ing to award the plain­tiff pre-judg­ment inter­est. Con­tin­ue read­ing Back from the USSR: FMLA Retal­i­a­tion, 4th Cir­cuit Deci­sion in Dot­son v Pfiz­er

Fourth Circuit rules that pension contribution rules may be age biased

The Fourth Cir­cuit Court of Appeals, in an unpub­lished opin­ion, addressed whether an employer’s pen­sion con­tri­bu­tion rules may con­sti­tute age dis­crim­i­na­tion under the Age Dis­crim­i­na­tion in Employ­ment Act of 1967, in Equal Employ­ment Oppor­tu­ni­ty Com­mis­sion v. Bal­ti­more Coun­ty, –F.3d. — (4th Cir. 2010). The unan­i­mous opin­ion was writ­ten by Judge Den­nis Shed, and was joined by Judge Roger Gre­go­ry and Arther L. Alar­con (Senior Judge on Ninth Cir­cuit, sit­ting by des­ig­na­tion).

Can you be sexually harassed behind your back?

It might be obvi­ous, but it seems a bit dif­fi­cult to win on a claim for sex­u­al harass­ment where all of the harass­ment occurs behind your back (and by “behind your back”, I mean sit­u­a­tions where the harass­ing behav­ior occurs when the com­plain­ing employ­ee is not phys­i­cal­ly present to expe­ri­ence or hear what is hap­pen­ing).

The Fourth Cir­cuit Court of Appeals addressed this issue in Pueschel v. Peters, 577 F.3d 558 (4th Cir. 2009), in a unan­i­mous deci­sion writ­ten by Judge Roger Gre­go­ry in which Judges M. Blane Michael and Robert Bruce King joined.

The Fourth Cir­cuit didn’t have much dif­fi­cul­ty reach­ing the con­clu­sion that, for any claim alleg­ing a hos­tile work envi­ron­ment (includ­ing sex­u­al harass­ment), you can’t suc­ceed if all of the mis­con­duct about which you com­plain occurred at work when you were not at work.

Twen­ty Eight Years of Lit­i­ga­tion!!!

This case grows out of an incred­i­bly long his­to­ry of lit­i­ga­tion (includ­ing sev­er­al dif­fer­ent law­suits and appeals (some of which were suc­cess­ful)) filed by Ms. Pueschel against her employ­er, the Fed­er­al Avi­a­tion Admin­is­tra­tion (“FAA”). The lit­i­ga­tion start­ed in 1981 and end­ed with this Fourth Cir­cuit deci­sion in 2009 (I am not kid­ding, and I am not sure this deci­sion marks the end of all of her lit­i­ga­tion).

Con­tin­ue read­ing Can you be sex­u­al­ly harassed behind your back?

Was the boss “merely crude”, or was he sexually harassing her?

Sex­u­al harass­ment claims fre­quent­ly require judges and juries to dis­tin­guish between “mere­ly crude” behav­ior, which doesn’t vio­late the employee’s rights, and “sex­u­al harass­ment”, which does. The Fourth Cir­cuit Court of Appeals addressed that issue in EEOC v. Fair­brook Med­ical Clin­ic, PA, 609 F.3d 320 (4th Cir. 2010) (opin­ion at Fourth Circuit’s site), and didn’t have a lot of trou­ble con­clud­ing that the con­duct in issue could rea­son­ably be viewed by a jury as sex­u­al harass­ment, rul­ing in favor of the employ­ee. One of the key issues was whether the con­duct was “severe or per­va­sive” enough to con­sti­tute a “hos­tile work envi­ron­ment”.  The unan­i­mous opin­ion was writ­ten Judge J. Harvie Wilkin­son III, joined by Judges Andre M. Davis and C. Arlen Beam (from the Eighth Cir­cuit).

Doc­tor on Doc­tor Harass­ment at Fair­brook Med­ical Clin­ic

Stethoscope Dr. John Kessel was the own­er of Fair­brook Med­ical Clin­ic in South Car­oli­na, and was accused by a for­mer female doc­tor at the clin­ic, Dr. Deb­o­rah Waechter, of sex­u­al­ly harass­ing her. Dr. Kessel was Dr. Waechter’s super­vi­sor. Dr. Waechter worked for him for 3 years and quit, alleged­ly over a broad range of sex­u­al­ly explic­it state­ments made dur­ing most of those 3 years (I’ll dis­cuss the specifics below).

Dr. Waechter’s Law­suit

Dr. Waechter then filed a charge of dis­crim­i­na­tion with the EEOC, alleg­ing that Dr. Kessel’s behav­ior cre­at­ed a “hos­tile work envi­ron­ment”, and the EEOC then filed suit on behalf of Dr. Waechter against Dr. Kessel’s clin­ic under Title VII of the Civ­il Rights Act of 1964.

After dis­cov­ery was con­duct­ed. Fair­brook Med­ical Clin­ic filed a motion for sum­ma­ry judg­ment, and the fed­er­al tri­al judge grant­ed it. The tri­al judge rea­soned that the offen­sive con­duct was “not par­tic­u­lar­ly fre­quent,” most­ly involved “the type of crude jokes that do not run afoul of Title VII,” did not cause Dr. Waechter to miss work or feel “severe psy­cho­log­i­cal stress,” and did not include inap­pro­pri­ate touch­ing or phys­i­cal threats.

Con­tin­ue read­ing Was the boss “mere­ly crude”, or was he sex­u­al­ly harass­ing her?