The 6^th Circuit Court of Appeals and the U.S. Supreme Court have issued several decisions in the past several month that may be of interest to the federal practitioner:  Here are some brief summaries and links to recent opinions.

United States Supreme Court

Dart Cherokee Basin Operating Company, LLC v. Owens, No. 13-719 [Decided 12.15.2014]

Holding: A defendant’s notice of removal of a case to federal court need only include a plausible allegation that the amount in controversy exceeds the jurisdictional threshold; it does not need to contain evidentiary submissions.

Warger v. Shauers, No. 13-517 [Decided 12.8.2014]

Holding: Federal Rule of Evidence 606(b) precludes a party seeking a new trial from using one juror’s affidavit of another juror’s statements during deliberations to demonstrate the other juror’s dishonesty during voir dire.

Gelboim v. Bank of America Corporation, No. 13-1174 [Decided 01.21.2015]

Holding: When a court dismisses the only claim in a case that has been consolidated with other actions for pretrial proceedings in multidistrict litigation, the court’s order is a final and appealable order, even if claims remained in other actions included in the MDL.

U.S. v. Wong, No. 13-1074 [Decided 04.22.2015]

Holding: The time limits of the Federal Tort Claims Act for presentation of claims to the appropriate federal agency for administrative review are subject to equitable tolling.

Sixth Circuit Court of Appeals

Rudlaff v. Gillispie, No. 14-1712 [Decided 07.01.2015]

Holding:  On summary judgement, when video footage depicts all of the disputed facts, the court views the facts in the light depicted by the video tape and not the light most favorable to the non-moving party.

Ondo v. City of Cleveland, No. 14-3527 [Decided 08.03.2015]

Holding:  Court may strike entire affidavit or declaration filed to support or oppose a Motion for Summary where the affidavit purports to be made upon “personal knowledge and belief.”  The court must differentiate between knowledge and belief for each averment in the affidavit. If the court cannot differentiate between the two, then the court must strike the affidavit in its entirety.

United States District Court for the Western District of Tennessee

• Edward Stanton III, the U.S. Attorney for the Western District of Tennessee, has been nominated by President Obama to become a U.S. District Judge to succeed the retiring Judge Samuel H. "Hardy" Mays, who is taking senior status.  On September 30, 2015, Stanton appeared before the Senate Judiciary Committee as it reviews his qualifications for the position.

United States District Court for the Middle District of Tennessee

• The Senate Judiciary Committee has voted to approve the nomination of Waverly Crenshaw as a U.S. District Judge for the Middle District of Tennessee.  Waverly will replace U.S. District Judge William Joseph Haynes Jr., who moved to senior status in December.
• The United States District Court for the Middle District of Tennessee announced that Barbara D. Holmes, will serve as magistrate judge.  Holmes replaced Magistrate Judge Juliet Griffin, who retired effective July 31.  Holmes’s investiture was held October 6, 2015.

United States District Court for the Eastern District of Tennessee

• The Senate Judiciary Committee has voted to approve Travis McDonough as a U.S. district judge for the Eastern District of Tennessee.  McDonough will take the place of Judge Curtis Collier, who is moving to senior status.  Judge Sandy Mattice will become senior judge.
• Clifton Corker was appointed May 1 as a federal magistrate judge for the U.S. District Court, Eastern District of Tennessee.

Here are some helpful links to the local rules of the various federal courts:

6^th Circuit Court of Appeals

Eastern District of Tennessee

Middle District of Tennessee

Western District of Tennessee

Help us keep CLE innovative, fun, challenging, and creative by playing the Supreme Court Fantasy Challenge.

The Supreme Court Fantasy Challenge Game is a creative and innovative way for attorneys to learn and earn CLE credits while having fun and competing with other lawyers. During the course of the game, you will analyze lower court rulings, read attorney briefs, listen to oral arguments and then vote on how you think the court — or each individual justice — will rule.

Here are is a preview of one of the cases before the court.

American Heritage Apartments, Inc. v. The Hamilton County Water and Wastewater Treatment Authority

Description:  The plaintiff, American Heritage Apartments, Inc. ("American Heritage";), commenced this lawsuit to protest a monthly flat charge in the amount of $8.00 per unit imposed by the defendant, The Hamilton County Water and Wastewater Authority ("the County WWTA"), on all of its sewer customers. The charge was instituted to fund a program designed to repair and refurbish private service laterals, defined as pieces of pipe that connect private property to the sewer lines.

Watch for new cases and play before the court renders the opinion to earn your points!

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Click here to register today for the webcast featuring a panel of United States Magistrate Judges who will be discussing discovery disputes that can occur under the Federal Rules of Civil Procedure, how discovery disputes can be avoided, and how discovery disputes are resolved. The Program will also address Protective Orders in federal litigation and the considerations for their issuance.

Important notices regarding changes to the liquor-by-the-drink and sales tax returns have posted to the Department of Revenue’s website. You can read the notices by clicking on the following topics:  liquor-by-the-drink and sales tax returns.

The Department of Revenue has updated its electronic filing requirements. You can read the updated requirements here: http://www.tn.gov/revenue/article/electronic-filing-requirements.

By Bruce E. Buchanan*

Recently, the Tennessee Department of Labor and Workplace Development (TDLWD) has substantially increased their inquiries/investigations under the Tennessee Lawful Employment Act (TLEA). It is unclear why this has occurred.

Requirements of Tennessee Lawful Employment Act

First, let me remind you of the requirements set forth in the TLEA. For employers with six or more employees, one must participate in E-Verify or copy and maintain one of 11 documents – such as driver’s license, permanent resident card, U.S. Passport, Employment Authorization Document (EAD), birth certificate, naturalization certificate, and a few other obscure documents. Additionally, the TLEA requires an employer to retain one (1) of the 11 documents for non-employees (“any individual, other than an employee, paid directly by the employer in exchange for the individual’s labor or services.”)

A company does not utilize E-Verify, it must retain one (1) of the 11. If an employer receives a Request for Information under TLEA, one must provide one of 11 designated documents or a copy of a case verification report from E-Verify, if one is using E-Verify, of those employees hired after January 1, 2013. An employer should not supply I-9 forms to the TDLWD.

This law is totally distinct from federal law, which is enforced by Immigration and Customs Enforcement, and requires an employer to complete an I-9 form for every employee that is hired. Under federal law, an employer is not required to copy and maintain any documents except if one utilizes E-Verify, one must copy and maintain a List A document - U.S. Passport, U.S. passport card, Permanent Resident card, or EAD.

How do TLEA Inquiries arise?

It appears these TLEA inquiries arise under one of four situations. First, a complaint is filed with the TDLWD alleging a violation of TLEA. Second, TDLWD initiates a Request for Information under the TLEA while in process of conducting an investigation on another matter that an individual/worker has filed a complaint under the Wage Regulations Act or similar law.

Third, TDLWD initiates an initial inspection under the Child Labor Act, which provides the right to enter premises to check for any violations without a complaint. After conducting a short inspection looking for child labor at the employer’s premises, the TDLWD issues a Request for Information under the TLEA. This appears to stretch the limits of the TLEA’s language that the TDLWD must initiate a TLEA inquiry while conducting another inquiry/investigation/inspection.[i] If the inspection under the child labor law only lasts 10 to 15 minutes, does that give the TDLWD right to inquire under TLEA?

Fourth, the TDLWD initiates a Request for Information under the TLEA without any underlying inquiry/investigation on another statute. This appears to be in direct violation of the TLEA.

Takeaway

Employment lawyers representing employers in Tennessee should be aware of this growing trend at the TDLWD. Although your clients may be fully abiding by the TLEA, it may be a good idea to remind them of this recent law and increased enforcement. It can particularly confusing for employers who do not use E-Verify and previously did not retain any underlying document(s) listed on the I-9 form.

By Stephen M. Darden*

In August 2015, the National Labor Relations Board (Board or NLRB) unanimously declined to assert jurisdiction over the scholarship football players at Northwestern University because allowing the players to unionize “would not promote stability in labor relations.”  Northwestern University, 362 NLRB No. 167 (2015).

As I previously discussed in the July 2014 issue of TBA’s Labor & Employment Law Section Newsletter, the scholarship football players at Northwestern had filed an election petition with the Board on January 28, 2014 on whether to unionize.  On March 26, 2014, the NLRB’s Regional Director for the Chicago office issued a Decision and Direction of Election (DD&E) in which it was concluded that scholarship football players at Northwestern were “statutory employees” of the University who could choose to unionize and exercise other rights under the law. The Regional Director had been swayed by players who testified that they had missed academic commitments due to football activities, but that they had never missed football practices or games because of academic matters.  Also, with the evidence suggesting that as many as 50-60 hours were spent per week on football activities, he found that players devoted more hours than “many undisputed full-time employees."

Thereafter, the University appealed this decision to the five-member Board. In declining to assert jurisdiction, the NLRB, in a sense, punted on fourth down by declining to rule on the primary issue of whether the scholarship players were “employees.” 

Taking a macro approach, the Board noted that Northwestern was the only private university that competed among the 14 teams in the Big Ten Conference and that of the 125 institutions that compete in the top division of college football, only 17 are private schools.  Accordingly, the NLRB ruling has much to do with the fact that the NLRB lacks jurisdiction over the vast majority of universities that field college football teams, since they are state-run institutions.  Since so many state universities, such as Tennessee, compete in the same division as private institutions, such as Vanderbilt, the NLRB reasoned that, because of “the nature of sports leagues” and the “control” they exercise, it was best not to assert jurisdiction.  By choosing not to decide the case on its merits, which could have led to a decision to count the ballots and follow the results, the NLRB instead has left the conditions under which college athletes in the NCAA Bowl Subdivision (FBS) compete, are educated, and rewarded largely in the hands of the NCAA.

Even if a majority of voters had expressed a preference for Union representation, it is not clear what items would have been negotiated.  In the typical bargaining relationship, an employer cannot make unilateral changes to wages, hours, and terms and conditions of employment without first bargaining over such issues with the Union that represents its employees.  While the Union, the College Athletes Players Association (“CAPA”), had indicated it would not seek pay, things like graduate school tuition, future medical care and other benefits were clearly of interest.  The CAPA’s mission is to help players gain bargaining rights regarding items beyond the benefits currently allowed by the NCAA, and it receives financial support from the United Steelworkers (USW).

The ruling was counter to the Board’s recent tendency to enlarge the reach of the National Labor Relations Act to groups that prior rulings had excluded from coverage, and was likely CAPA’s best opportunity to represent athletes through the processes of the NLRB. But even if the “employee” question had been decided in favor of the scholarship athletes, the odds-makers had installed rejection of the union as the favorite based upon many player comments that suggested a majority of those who voted in the secret ballot election had decided against union representation.  We will never know the outcome, because the Board’s ruling is not appealable and the ballots are destroyed. 

When you read this article, toe will have already met pigskin and the 2015 college football season will be well underway.  The vast revenue stream created by television contracts and the new 4-team playoff format has never been more robust and there will continue to be calls for compensation of college athletes.  While that debate will continue to occur around the proverbial water cooler, a change to the current system will not occur through the NLRB.  At least, not at the present time.

_________________________

*Steve Darden practices law with the Tri-Cities firm of Hunter, Smith & Davis, LLP and is Chair of the firm’s Labor and Employment section. Steve may be reached at www.hsdlaw.com or (423) 283-6303.

By Fred Bissinger and Ashley Griffith*

i.  Introduction

On April 22, 2015, the Sixth Circuit Court of Appeals, in EEOC v. New Breed Logistics, 783 F.3d 1057 (6th Cir. 2015),  upheld a jury verdict for four employees for over $1.5 million in compensatory, punitive and other monetary damages for sexual harassment pursuant to the opposition clause of Title VII of the Civil Rights Act of 1964. Although the Sixth Circuit’s decision was not entirely surprising given the testimony established at trial, the decision provides insight as to what constitutes protected activity pursuant to the opposition clause in Title VII.[i]

iI.  Relevant Facts

The EEOC filed suit pursuant to Title VII for sexual harassment and retaliation against New Breed Logistics (“New Breed”), alleging James Calhoun, a New Breed supervisor, sexually harassed three women employees, Jacquelyn Hines, Capricius Pearson, and Tiffany Pete and retaliated against them after they objected to his sexual advances. In addition, the EEOC alleged that Calhoun retaliated against Christopher Partee, who verbally opposed Calhoun’s sexual harassment of the three women employees.

New Breed is a logistics company with a warehouse in Memphis, Tennessee. At the time of trial, approximately 80% of the workforce in the Memphis location was temporary employees hired through Select Staffing. Temporary employees were not given a copy of the employee handbook that contained the company’s sexual harassment policy. New Breed contended, however, that these issues were discussed with temporary employees during their orientation.

At trial, Hines, Pearson and Pete testified that Calhoun made sexual comments to them and/or made physical sexual advances toward them. All three women testified that at some point, they told Calhoun to stop his behavior. With respect to Partee, he told Calhoun to “calm down on making them comments because I don’t believe them women are liking that.”

Eventually, all four employees were terminated, and it was demonstrated that Calhoun was directly or indirectly involved in the termination decisions. For example, with respect to Hines’s termination, she was tardy for her shift on several occasions. Calhoun, however, told her not to clock in when she was late because he would clock her in manually so the system would not reflect that she was tardy. On the day she complained to Calhoun about his harassment, Select Staffing contacted her to warn her about her attendance issues. A week later, she was terminated for attendance problems. At trial, it was established that Calhoun had terminated her.

With respect to Pete and Pearson’s employment, Pete had placed an anonymous call to New Breed’s complaint line regarding Calhoun’s sexual harassment towards female employees. The Senior Human Resource Manager discussed the matter with Calhoun for approximately 30 minutes and determined that there was no misconduct. Pete and Pearson were subsequently transferred at some unspecified time away from Calhoun’s department, and they were eventually terminated by their new supervisor. At trial, however, Calhoun took credit for their termination and there was evidence that their new supervisor was influenced by Calhoun.

Finally, with respect to Partee’s dismissal, Pete identified him as a witness on the complaint hotline. The Senior Human Resource Manager contacted Partee for an interview. On the same day of the interview, Partee learned that he was being terminated because Calhoun reported that Partee had been clocking in early or staying late without authorization. The company approved Partee’s termination based on Calhoun’s information.

III.  The Sixth Circuit's Decision

In New Breed’s appeal of the jury’s decision, the Sixth Circuit first addressed whether New Breed was entitled to a new trial as to the retaliation verdict.  New Breed argued the evidence did not support the jury’s retaliation verdict because three employees, Hines, Pearson, and Partee, failed to engage in protected activity. In addition, New Breed argued that the relevant decision makers were unaware of any protected activity.  Finally, New Breed averred that any protected activity was not the but-for cause of the adverse employment action. The Sixth Circuit disagreed.

With respect to whether Hines, Pearson, or Partee engaged in protected activity, New Breed argued that simply telling the wrongdoer to stop does not constitute protected activity. The Sixth Circuit recognized that it had not previously considered this issue. Ultimately, the Sixth Circuit agreed with the EEOC’s argument— telling the wrongdoer to stop constitutes protected activity pursuant to the language of the opposition clause of Title VII’s anti-retaliation provision.

The Sixth Circuit highlighted the language of the opposition clause: “[I]t shall be an unlawful employment practice for an employer to discriminate against any . . . employee[] . . .  because [the employee] opposed any practice made an unlawful employment practice.” The Court continued that in other cases, it has held that “[t]he opposition clause protects not only the filing of formal discrimination charges with the EEOC, but also complaints to management and less formal protests of discriminatory employment practices.”[ii]  In addition, the Sixth Circuit noted that it has given “great deference” to the EEOC’s interpretation of “opposing” conduct.

Accordingly, the Sixth Circuit concluded:

[A] demand that a supervisor cease his/her harassing conduct constitutes protected activity covered by Title VII. Sexual harassment is without question an “unlawful employment practice.” If an employee demands that his/her supervisor stop engaging in this unlawful practice—i.e., resists or confronts the supervisor’s unlawful harassment—the opposition clause’s broad language confers protection to this conduct. Importantly, the language of the opposition clause does not specify to whom protected activity must be directed. . . . Therefore, it would be unfair to read into the provision a requirement that a complainant only engages in protected activity when s/he opposes the harassment to a particular official designated by the employer.[iii]

With respect to whether the decision makers had knowledge of the protected activity, the Sixth Circuit dismissed New Breed’s argument quite readily. First, it noted that with respect to Hines, she complained directly to Calhoun about his misconduct and was subsequently terminated by him. Accordingly, Calhoun had knowledge of Hines’s protected activity.

With respect to Pete and Pearson, the Sixth Circuit ruled that the jury had competent evidence to conclude that Calhoun influenced their terminations. In addition, the Court reasoned that New Breed would be held liable under the “cat’s paw” theory of liability—that is, when another individual and not the actual decision maker “is the driving force behind the employment action.”[iv] The evidence produced at trial was sufficient to conclude that Calhoun was the driving force behind the employees’ termination.

Finally, with respect to the but-for causation element, the Sixth Circuit again rejected New Breed’s argument – in this case, that the evidence failed to establish that the protected activity was the but-for cause of the adverse employment actions taken against the employees. The Sixth Circuit highlighted the proximity in time between the employees’ protected activity and their subsequent termination. In addition, the Court noted that the evidence was sufficient to establish that the decision to terminate each employee was pretextual.

New Breed averred that the Faragher/Ellerth defense was applicable in this case; however, the Sixth Circuit stated that since Calhoun’s conduct resulted in the employees’ termination (a tangible employment action), this affirmative defense was not applicable.

IV.  The Takeaways

The Sixth Circuit held, as a matter of first impression in its Circuit, that an employee telling the harassing supervisor to stop constitutes protected activity under the opposition clause of Title VII.  One could argue that the Sixth Circuit’s decision may complicate the ways in which companies handle harassment complaints. Attorneys should advise their clients, however, that such complications can be minimized by resorting to the basics:

1)             Training. Companies should provide mandatory training for all managers and supervisors with respect to what constitutes discrimination, harassment and retaliation, and the consequences of not effectively handling complaints.

2)             Written Policies.  Companies should distribute written policies on discrimination, harassment and retaliation to all of their employees. The policy should set forth the company’s EEO (Equal Employment Opportunity) statement and explain the reporting mechanisms for misconduct. Companies should ensure that employees have someone else to report to in case the harasser is the supervisor. The instant case is an obvious example of why this is important.

3)             Investigation.  Companies need to take all complaints seriously. Again, the New Breed Logistics case serves as an example of why a thorough investigation is necessary. At the very least, investigations should consist of interviewing other employees and not simply relying on the alleged wrongdoer’s version of the story and/or his/her recommendations.