Recently in Employment Law Category

In a disability discrimination action alleging that defendant transit authority's refusal to promote plaintiff was the consequence of discrimination and retaliation, summary judgment for defendant is affirmed where defendant came forward with a legitimate, nondiscriminatory and nonretaliatory reason for refusing to promote plaintiff to positions that required driving: to wit, the provision of a prior settlement agreement stating that "under no circumstance will plaintiff be permitted to operate an authority vehicle."

Read Kersey v. Wash. Metro. Area Trans. Auth., No. 08-7040

Appellate Information

Argued September 15, 2009

Decided November 10, 2009

Judges

Opinion by Judge Garland

Counsel

For Appellant:

Eric L. Siegel and Neil L. Henrichsen, Washington, DC

For Appellee:

Bruce P. Heppen, Carol B. O'Keeffe, Mark F. Sullivan, Deputy General Counsel, Washington Metropolitan Area Transit Authority, Washington, DC

In an employment discrimination action against the U.S. Capitol Police, dismissal of the complaint is affirmed in part where the Capitol Police's administrative appeal process is jurisdictional and thus equitable doctrines, such as vicarious exhaustion, do not apply to excuse compliance with it. However the ruling is reversed in part where: 1) neither the Congressional Accountability Act (CAA) nor the procedural rules of the Office of Compliance require in-person attendance by the employee at counseling or mediation; and 2) receipt of written notice of the end of mediation from the Office of Compliance triggered the CAA's 30 to 90-day period for electing whether to pursue judicial or administrative relief and demonstrated the employee's completion of counseling and mediation.

Read Blackmon-Malloy v. U.S. Capitol Police Bd., No. 07-5320

Appellate Information

Argued May 8, 2009

Decided July 31, 2009

Judges

Opinion by Judge Rogers

Counsel

For Appellants:

Lenore C. Garon, Gebhardt & Associates, LLP, Washington, DC

Joseph D. Gebhardt, Gebhardt & Associates, LLP, Washington, DC

For Appellee:

Harry B. Roback, Assistant U.S. Attorney, Washington, DC

Jeffrey A. Taylor, U.S. Attorney, Washington, DC

In an Americans with Disabilities Act action claiming that defendant refused to accommodate plaintiff's disability and then terminated his employment, summary judgment for defendant is affirmed where no reasonable jury could find that plaintiff was disabled when he was refused accommodation and discharged.

Read Lytes v. D.C. Water & Sewer Auth., No. 08-7002

Appellate Information

Argued February 10, 2009

Decided July 21, 2009

Judges

Opinion by Judge Ginsburg

Counsel

For Appellant:

Jeannine M. Kenney, Washington, DC

Steven H. Goldblatt, Georgetown University Law Center, Washington, DC

For Appellee:

Lesley A. Pate, Venable LLP, Washington DC

In the Secretary of Labor's petition for review of a Federal Mine Safety and Health Review Commission decision that the Secretary lacked jurisdiction to regulate a private road operated by respondents, the petition is granted where the Secretary reasonably concluded that the road fell within the definition of "mine" in the Federal Mine Safety and Health Act of 1977.

Read Sec'y. of Labor v. Nat'l. Cement Co. of Cal., No. 08-1312

Appellate Information

Argued May 12, 2009

Decided July 21, 2009

Judges

Opinion by Judge Griffith

Counsel

For Petitioner:

Robin A. Rosenbluth, Attorney, Mine Safety & Health Administration, Washington, DC

Carol A. De Deo, Deputy Solicitor, Mine Safety & Health Administration, Washington, DC

For Respondent:

Margaret Lopez, National Cement Company of California, Inc., Washington, DC

In a Title VII action alleging that Defendant racially discriminated against Plaintiff in placing her on probation, Plaintiff's appeal is dismissed, where there was no final judgment from which Plaintiff could have appealed at the time she filed a notice of appeal.

Read Robinson-Reeder v. Am. Coun. on Educ., No. 08-7028

Appellate Information

Argued May 11, 2009

Decided July 17, 2009

Judges

Opinion by Judge Garland

Counsel

For Appellant:

Christopher Cuneo, Howrey LLP, Washington DC

For Appellee:

Christine N. Kearns, Pillsbury Winthrop Shaw Pittman LLP, Washington, DC

In a sexual harassment action, summary judgment for Defendant is affirmed, where no reasonable jury could infer that Defendant retaliated against Plaintiff when it treated her as having taken leave without permission.

Read Taylor v. Solis, No. 07-5401

Appellate Information

Argued November 14, 2008

Decided July 10, 2009

Judges

Opinion by Judge Ginsburg

Counsel

For Appellant:

Richard L. Swick, Swick & Shapiro, P.C., Washington, DC

David H. Shapiro, Swick & Shapiro, P.C., Washington, DC

For Appellee:

Kenneth Adebonojo, Assistant U.S. Attorney, Washington, DC

In a petition for review of the NLRB's finding that Petitioner engaged in an unfair labor practice by failing to notify certain temporary employees that the terms and conditions of their employment would change, the petition is granted where the NLRB erred in concluding that Petitioner was a "perfectly clear" successor to a prior company and that Petitioner was not entitled to implement new terms and conditions of employment.

S&F Market St. Healthcare LLC v. NLRB, No. 07-1439

Appellate Information

Argued November 17, 2008

Decided June 30, 2009

Judges

Opinion by Judge Ginsburg

Counsel

For Petitioner:

John H. Douglas

For Respondent:

Amy H. Ginn, National Labor Relations Board, Washington, DC

Ronald E. Meisburg, General Counsel, National Labor Relations Board, Washington, DC

In an action to enjoin a union from requiring candidates for union office to password-protect their websites, summary judgment for Defendant is affirmed, where the restriction was not viewpoint-based and left open alternative methods of communication with the public, and thus it complied with Section 101(a)(2) of the Labor-Management Reporting and Disclosure Act.

Read Quigley v. Giblin, No. 08-7056

Appellate Information

Argued May 4, 2009

Decided June 23, 2009

Judges

Per Curiam.

Counsel

For Appellants:

Paul Alan Levy, Public Citizen Litigation Group, Washington, DC

For Appellees:

Leon Dayan, Bredhoff & Kaiser, P.L.L.C., Washington, DC

Robert M. Weinberg, Bredhoff & Kaiser, P.L.L.C., Washington, DC

Matthew H. Clash-Drexler, Bredhoff & Kaiser, P.L.L.C., Washington, DC

In a Title VII action for Defendant's allegedly racially discriminatory failure to promote Plaintiff, summary judgment for Defendant is affirmed, where Plaintiff failed to offer evidence supporting an inference that, absent discrimination, she would have been picked for the job.

Read Hendricks v. Geithner, No. 07-5392.

Appellate Information

Appeal from the United States District Court for the District of Columbia
(No. 03cv02239)
Filed June 19, 2009

Judges

Before: SENTELLE, Chief Judge, and GINSBURG and BROWN, Circuit Judges.
Opinion for the Court filed by Chief Judge SENTELLE.

Counsel

Molly E. Buie argued the cause for appellant. With her on the briefs was Robert C. Seldon.

Alan Burch, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jeffrey A. Taylor, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney. Andrea W. McBarnette, Assistant U.S. Attorney, entered an appearance.

In a Privacy Act action by a former Department of Interior employee claiming that Defendant failed to provide Plaintiff access to an appraisal of her job performance and failed to safeguard that appraisal, summary judgment for Defendant is affirmed in part, where Plaintiff did not point to any adverse agency determination she experienced because of Defendant's failure to maintain the appraisal; but reversed in part, where there was a genuine issue of material fact regarding whether Defendant intentionally destroyed the appraisal after Plaintiff requested access to it.

Read the full decision in Chambers v. Department of Interior, No. 08-5165.

Appellate Information:

Appeal from the United States District Court for the District of Columbia
(No. 1:05-cv-00380-JR)
Argued May 8, 2009
Decided June 16, 2009

Judges:

Before HENDERSON, TATEL and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge KAREN LECRAFT HENDERSON.

Counsel:

Paula Dinerstein argued the cause for the appellant.

Beverly M. Russell, Assistant United States Attorney, argued the cause for the appellee. Jeffrey A. Taylor, United States Attorney at the time the brief was filed, and R. Craig Lawrence, Assistant United States Attorney, were on brief.