Articles Posted in Title VII

According to the allegations of a complaint filed by Amy H. Tang, a professor of microbiology and molecular cell biology, against the Eastern Virginia Medical School (“EVMS”), EVMS misappropriated her trade secrets and discriminated against her due to her Chinese ethnicity. She sued the school for violations of both the Defend Trade Secrets Act and the Virginia Uniform Trade Secrets Act, plus a host of other claims. EVMS was successful in getting some of the claims dismissed, but the court ruled that Professor Tang had sufficiently alleged all the requisite elements of a trade secrets case to survive the school’s motion to dismiss.

Tang’s allegations were essentially as follows. EVMS employs Tang as a Professor of Cancer Biology. She had developed certain treatments related to the exploitation and use of ethylenediaminetetraacetic acid for anti-NFkB, anti-inflammatory, and antiseptic treatments, which she disclosed to EVMS in an invention disclosure. Tang claimed these treatments were entitled to trade secret protection considering she had taken measures to keep the information secret (including securing all data electronically and requiring staff to leave data locked within the lab facilities and password-protected computer systems) and that the information had independent economic value.

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As you may know from past posts, the U.S. Equal Employment Opportunity Commission (EEOC) enforces five federal laws that prohibit employment discrimination against applicants for federal employment, current federal employees, or former federal employees: Title VII of the Civil Rights Act of 1964, as amended (prohibiting discrimination on the basis of race, color, religion, sex, or national origin); the Equal Pay Act of 1963 (prohibiting agencies from paying different wages to men and women performing equal work in the same work place); the Age Discrimination in Employment Act of 1967, as amended (prohibiting discrimination against persons age 40 or older); Sections 501 and 505 of the Rehabilitation Act of 1973, as amended (prohibiting discrimination on the basis of disability); and Title II of the Genetic Information Nondiscrimination Act of 2008 (prohibiting discrimination based on genetic information).

But what if the individual discriminating against a federal employee is the head of the agency or division wielding vast influence not only in the employee’s division but the entire agency? What if the alleged discrimination is inflicted by the head of the EEO office? Federal employees may fear that the EEO office is not investigating thoroughly such claims of discrimination and/or is predisposed not to find that any discriminatory conduct occurred.
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On June 26, 2015, the Supreme Court of the United States (“SCOTUS”) decided the 5-4 landmark decision, Obergefell v. Hodges, No. 14-556 (June 26, 2015). What’s so important about this case, which has resulted in nationwide parades, rainbow lighting of the White House, and rainbow-tinted profile pictures on Facebook? And, more important to us here at BerlikLaw, what might the Obergefell ruling portend for the employment discrimination realm?

Well, I’ll tell you. Obergefell determined that the states could not ban same-sex marriage. Prior to June 26, 2015, thirty-six states permitted same-sex marriage, but the remaining states still prohibited it. Then, last Friday, in a sweeping act of federalism, SCOTUS determined that the states could not constitutionally prevent same-sex couples from legally marrying in any state. SCOTUS answered a “YES” to the pivotal constitutional question: do the Equal Protection and Due Process clauses of the Fourteenth Amendment require all states to perform same-sex marriages? Yes, yes, they do.
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Virginia employers take note: even one racial slur (or sexist comment) by one employee to another can subject you to legal liability under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-3(a).

Title VII protects employees against discrimination in the workplace if the discriminatory conduct is based on gender, race, color, disability, religion, or national origin. Harassment is unwelcome conduct based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. It is not harassment if your supervisor is mean or rude to you–unless said conduct is based on one of aforementioned discriminatory bases.
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A few days ago, SCOTUS (the Supreme Court of the United Sates) surprised us some by deciding not to hear appeals from several states that sought to prohibit same-sex marriage. However, the non-ruling has been hailed as a historical and momentous event changing an untold number of lives. What happened? Well, the Supreme Court “denied cert“–that is, it declined to review appellate decisions–from cases in Virginia, Utah, Indiana, and some other states, which had held that bans on same-sex marriage were unconstitutional. By refusing to hear the appeals, the court gave tacit approval of the lower courts’ decisions, making gay marriage legal in 11 more states. Legal gay marriage across the country is happening, people, as it’s now legal (or about to become legal) in 35 states, including the District of Columbia.

On October 7, hot on the heels SCOTUS’s denial of cert of 4th Circuit decisions allowing same-sex marriage in Virginia, the Virginia Commonwealth University in Richmond announced that it intended to broaden its discrimination policies to include gender identity and sexual orientation. These developments are interesting as they may be portentous as Virginia state law does not yet include gender identity and sexual orientation as protected classes, which enables employers to fire an employee for being gay.
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The U.S. Equal Employment Opportunity Commission (“EEOC”) recently released a comprehensive set of fiscal year 2013 data tables showing that it obtained the highest monetary recovery in agency history through its administrative process, increasing by $6.7 million to $372.1 million of the 93,727 charges received in fiscal year (“FY”) 2013.

There was actually a nearly 6% decrease in charges filed in FY 2013 from FY 2012. In total, 93,727 employees filed charges with the EEOC. Consistent with past years, retaliation was the most commonly cited basis (more than 35,500 charges) for discrimination charges and increased in FY 2013. The next most commonly charge was racial discrimination (more than 33,000 charges) followed by gender/sexual harassment/pregnancy discrimination (nearly 28,000 charges) and then disability discrimination (with almost 26,000 charges). EEOC’s data showed more than 3,000 charges were found to be “reasonable cause,” where the evidence gained in the investigation rendered a conclusion that discrimination occurred. The data also demonstrated that the EEOC successfully conciliated 1,437 charges (approximately 40%). A “successful conciliation” is described by EEOC as one that results in substantial relief to the employee citing discrimination and all others adversely affected by discrimination.
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Res judicata” is Latin for “the thing has been judged.” It basically means that once you sue someone and obtain a result–win or lose–the matter is over and you can’t sue the same person again for the same harm. It’s like the civil equivalent of double jeopardy. The doctrine is designed to conserve judicial resources, deter multiple lawsuits, and promote reliance on judicial decisions. A party claiming that a suit is barred by res judicata must establish: (1) a previous final judgment on the merits; (2) an identity of the cause of action in both suits; and (3) an identity of parties or their privies in the two suits.

A recent example is provided by Nathan v. Takeda, in which the United States Court of Appeals for the Fourth Circuit affirmed the district court’s dismissal of a defamation claim based on res judicata grounds.

In an earlier case, Noah Nathan sued his employer, Takeda Pharmaceuticals America, for discrimination and retaliation under Title VII. After proceeding to judgment in that case, he filed a second suit, this time including several Takeda employees as defendants and changing his legal theory to defamation, conspiracy, and negligent supervision and retention. Nathan admitted the existence of a prior final judgment on the merits, but argued that his second case should have been allowed to proceed because the causes of action were different and different parties were involved.

Bettina Jordan works for the United States Postal Service. In 2012, she filed two separate actions against the Postmaster General, Patrick Donahoe, alleging discrimination under Title VII and the Rehabilitation Act. In February of 2012, Jordan suffered a physical injury on the job and accepted a limited duty assignment. She has collected workers’ compensation benefits since the injury. She did not appreciate, however, the manner in which the USPS handled her workers’ compensation reimbursement, so she filed a third lawsuit, alleging retaliation, defamation, and intentional infliction of emotional distress. All three cases were filed in the Richmond Division of the Eastern District of Virginia.

USPS employees seeking workers’ compensation must submit periodic documentation to the Office of Workers’ Compensation Programs (“OWCP”) showing their continued eligibility for benefits. Jordan was entitled to compensation based on a four-hour work day due to her limited duty assignment, but because of an administrative error, USPS had been compensating her for an eight-hour work day through July 2012. In August of 2012, an OWCP claims manager changed Jordan’s claim forms to accurately reflect the number of work hours and, upon finding backdated and inconsistent medical notes Jordan had submitted, undertook a reevaluation of Jordan’s claim in September 2012. The claims manager wrote to Jordan questioning her submissions and asking for clarification. She also sent the letter to a Department of Labor Claims Examiner and the USPS Manager of Health and Resource Management.

Jordan did not appreciate being asked these questions. She sued, claiming that the way in which USPS handled her workers’ compensation reimbursement was in retaliation for her discrimination claims. She also contended that the claim manager’s letters defamed her and that they intentionally inflicted emotional distress. The USPS, through Mr. Donahoe, moved for summary judgment. The court granted the motion.

A former employee of the Arlington County Sheriff’s Office failed to produce sufficient evidence of race discrimination to survive summary judgment. Such was the determination of Judge O’Grady of the Eastern District of Virginia, who entered summary judgment in favor of Arlington Sheriff Beth Arthur.

The case had been brought by former Inmate Services Counsel Robert Currie. Currie, an African-American male, alleged that he was racially discriminated against in 2009, when: (1) a watermelon was left on his desk by an African-American co-worker; (2) a Caucasian deputy made the statement “[t]here goes the neighborhood” on several occasions when Currie approached him; and (3) a Latino supply assistant referred to Currie as “boy” when addressing him.

Currie filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), claiming that he was discriminated against and was placed on probation in 2009 in retaliation for the fact that his lawyer had written to the Sherriff’s Office after the watermelon incident. The EEOC issued a Notice of Right to Sue in 2011. Two months later, Currie was watermelon.jpgterminated by Sheriff Arthur, allegedly as a result of an investigation that found that Currie violated policy, made false statements, treated an inmate unprofessionally, and retaliated against inmates.

A Lincoln-Mercury dealer in the Virginia Beach area has settled a lawsuit filed earlier this year by a former employee who claimed that she was subjected to a campaign of sexual harassment by the dealership’s general manager.

On March 4, 2011, Carla Mercado, who worked as a car saleswoman until she was fired in March 2009, sued Lynnhaven Lincoln-Mercury Inc. for sexual harassment, discrimination and retaliation, asserting that Juan Lewis, the general manager, repeatedly groped her and made unwanted sexual advances and suggestions. On October 21, 2011, U.S. District Judge Raymond A. Jackson denied Lynnhaven’s motion for summary judgment and its partial motion to dismiss the complaint. Faced with having a jury decide the merits of Ms. Mercado’s claims, the parties mutually decided to settle the case on the courthouse steps, the day the trial was scheduled to begin.

According to the complaint, Lewis repeatedly made remarks of a sexual nature to Mercado on the job and asked her to have oral sex with him. On one occasion, according to the complaint, he told her that the only way she would get a promotion is if she performed that sexual act on him. At one time, the complaint reads, he forcibly kissed her. These comments and actions,Dance or Fight.jpg the complaint says, “were an integral part of Juan Lewis’s custom, business practice, and course of dealing with certain women at Lincoln-Mercury, while fulfilling his role as General Manager at the dealership.”

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