Recently in Employment Law Category

Plaintiff's petition for review of a decision of the Benefits Review Board of the US Department of Labor, affirming an ALJ's decision that awarded hearing loss compensation to plaintiff under the Longshore and Harbor Workers' Compensation Act (LHWCA) based on an audiogram that did not comply with the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides), is granted and reversed because section 908(c)(13)(E) of the LHWCA mandates that hearing loss compensation be based on hearing loss determinations made in accordance with the AMA Guides. 

Read Green-Brown v. Sealand Servs. Inc., No. 08-1236

Appellate Information

Argued: September 22, 2009

Decided: October 29, 2009

Judges

Opinion by Judge Michael

Counsel

For Appellant: Gregory Edward Camden, Montagna, Klein, Camden, LLP

For Appellee:  Patrick Michael Brogan, Davey & Brogan PC.

In an action alleging interference with plaintiff's application for workers' compensation benefits, summary judgment for defendant is affirmed where: 1) plaintiff waived her Title VII claim by appealing her claim before the Merit Systems Protection Board to the Federal Circuit; and 2) plaintiff could not be subjected to a hostile work environment where all of the alleged conduct occurred after she left the workplace.

Read Pueschel v. Peters, No. 08-1351

Appellate Information

Argued: May 14, 2009

Decided: August 18, 2009

Judges

Opinion by Judge Gregory

Counsel

For Appellant:

George Michael Chuzi, Kalijarvi, Chuzi & Newman, PC, Washington, DC

For Appellee:

Lauren Anne Wetzler, Office of the United States Attorney, Alexandria, VA

In a petition for review of the Department of Labor's determination that petitioner's employer did not discharge him for complaining about violations of the Surface Transportation Assistance Act, the petition is denied where the inspection methods petitioner insisted on using for his employer's vehicles were not reasonably necessary.

Read Calhoun v. US Dep't of Labor, No. 07-2157

Appellate Information

Argued: March 26, 2009

Decided: August 11, 2009

Judges

Opinion by Judge Gregory

Counsel

For Petitioner:

Paul Otto Taylor, Truckers Justice Center, Burnsville, MI

For Respondent:

Lee Gary Grabel, United States Department of Labor, Washington, DC

In an appeal from the denial of plaintiffs' motion for class certification in an employment discrimination action, denial of the motion is vacated where: 1) plaintiffs presented compelling direct evidence of discrimination sufficient to meet the Fed. R. Civ. P. 23 commonality requirement; and 2) there was insufficient evidence that each of the employer's departments was so autonomous as to justify classifying them as separate environments.

Read Brown v. Nucor Corp., No. 08-1247

Appellate Information

Argued: January 27, 2009

Decided: August 7, 2009

Judges

Opinion by Judge Gregory

Counsel

For Appellants:

Robert L. Wiggins, Jr., Wiggins, Childs, Quinn & Pantazis, P.C., Birmingham, AL

For Appellees:

Earle Duncan Getchell, Jr., McGuireWoods, L.L.P., Richmond, VA

In a Title VII action by the EEOC claiming that defendant subjected an employee to a hostile work environment based on her gender and race, summary judgment for defendant is reversed where the evidence, viewed in the light most favorable to the EEOC, would allow a reasonable jury to conclude that the harassment was: 1) unwelcome; 2) based on plaintiff's gender or race; 3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive atmosphere; and 4) imputable to defendant.

Read EEOC v. Central Wholesalers, Inc., No. 08-1181

Appellate Information

Argued: March 27, 2009

Decided: July 21, 2009

Judges

Opinion by Judge Shedd

Counsel

For Appellant:

Daniel Travis Vail, U.S. Equal Employment Opportunity Commission, Washington, DC,

For Appellee:

Fred Saul Sommer, Shulman, Rogers, Gandal, Pordy & Ecker, PA, Rockville, MD

In a 42 U.S.C. section 1983 action based on the suspension of Plaintiff's practice privileges at Defendant hospital, the dismissal of the complaint is affirmed, where the hospital was not a state actor because the members of its board were not employees of or controlled by the county.

Read Philips v. Pitt Cty. Mem. Hosp., No. 07-1986

Appellate Information

Argued: October 29, 2008

Decided: July 13, 2009

Judges

Opinion by Judge Copenhaver

Counsel

For Appellant:

Karin Marshall Zaner, Kane, Russell, Coleman & Logan, Dallas, TX

For Appellees:

Charles David Creech, Harris, Creech, Ward & Blackerby, New Bern, NC

In an action by the NLRB seeking an injunction requiring Defendant to offer employment to persons it had refused to hire because of union affiliation, judgment for Plaintiff is affirmed where the District Court properly considered the balance of harms and other equitable factors in issuing the injunction.

Read Muffley v. Spartan Mining Co., No. 08-1973

Appellate Information

Argued: May 12, 2009

Decided: July 1, 2009

Judges

Opinion by Judge Motz

Counsel

For Appellant:

Forrest Hansbury Roles, Dinsmore & Shohl LLP, Charleston, WV

For Appellee:

Laura T. Vazquez, National Labor Relations Board, Washington, DC