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
The Fourth Circuit Court of Appeals, in an unpublished opinion, addressed whether an employer’s pension contribution rules may constitute age discrimination under the Age Discrimination in Employment Act of 1967,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).
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?
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
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?