Murphy v. Internal Revenue Service, ___ F.3d ___ (DC Cir 08/22/2006)
A DOL administrative law judge awarded Murphy damages from her employer on a
whistleblower claim. The ALJ specified that part of the award was for
"emotional distress or mental anguish," and part was for "injury
to professional reputation." Murphy paid taxes on the award, and then sued
IRS seeking a tax refund.
Internal Revenue Code § 104(a)(2): "gross income [under IRC § 61] does
not include ... the amount of any damages (other than punitive damages) received
(whether by suit or agreement and whether as lump sums or as periodic payments)
on account of personal physical injuries or physical sickness" and
"emotional distress shall not be treated as a physical injury or physical
holding: The compensation was not "received on account of personal
physical injuries," and therefore § 104 does not permit Murphy to exclude
her award from income.
Amendment: "The Congress shall have power to lay and collect taxes on
incomes, from whatever source derived, without apportionment among the several
States, and without regard to any census or enumeration."
holding: § 104, as applied to Murphy, is unconstitutional.
The DC Circuit used a two-part
- Under the 16th amendment, Congress has the power to tax
only "gain[s]" or "accessions to wealth." Commissioner
v. Glenshaw Glass, 348 US 426 (1955). The money Murphy received was
neither a "gain" nor an "accession to wealth."
Key quote: "[T]he damages were awarded to make Murphy
emotionally and reputationally 'whole' and not to compensate her for lost wages
or taxable earnings of any kind. The emotional well-being and good reputation
she enjoyed before they were diminished by her former employer were not taxable
as income. Under this analysis, therefore, the compensation she received in lieu
of what she lost cannot be considered income ...."
"original understanding" of the framers of the 16th amendment was
that they "would not have understood compensation for a personal injury
- including a nonphysical injury - to be income."
Burlington Northern v. White, 126 S.Ct. 2405 (06/22/2006)
A jury found that White's employer retaliated against her for complaining about
sex discrimination. There were two acts of retaliation under Title VII § 704:
was working as a fork lift operator, and the employer moved her to a job as
a standard track laborer. Both assignments were within her job description.
the employer suspended White without pay for 37 days. After she filed a
grievance, the employer reinstated her and gave her full back pay. The
reinstatement followed from procedures in the collective bargaining
"It shall be an unlawful employment practice for an employer
to fail or refuse to hire or
to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's race, color,
religion, sex, or national origin;"
to discriminate against any of his
employees or applicants for employment ... because he has opposed any
practice made an unlawful employment practice by this subchapter, or
because he has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this
Both employer actions were prohibited retaliatory actions under § 704.
quote: "We conclude that the anti-retaliation provision does not
confine the actions and harms it forbids to those that are related to employment
or occur at the workplace. We also conclude that the provision covers those (and
only those) employer actions that would have been materially adverse to a
reasonable employee or job applicant. In the present context that means that the
employer's actions must be harmful to the point that they could well dissuade a
reasonable worker from making or supporting a charge of discrimination."
retaliatory action need not cause financial loss.
retaliatory action need not occur at the workplace.
v. Gonzales, 438 F.3d 1211 (DC Cir
2006) (FBI retaliation against employee "took the form of the FBI's
refusal, contrary to policy, to investigate death threats a federal prisoner
made against [the agent] and his wife"); Berry v. Stevinson
Chevrolet, 74 F.3d 980 (10th Cir 1996) (finding actionable retaliation where
employer filed false criminal charges against former employee who complained
actions must be "materially adverse" - "harmful to the point
that they could well dissuade a reasonable worker from making or supporting
a charge of discrimination."
anti-retaliation provision seeks to prevent employer interference with
'unfettered access' to Title VII's remedial mechanisms. Robinson v. Shell
Oil Co., 519 U. S. 337, 346 (1997). It does so by prohibiting employer
actions that are likely 'to deter victims of discrimination from complaining to
the EEOC,' the courts, and their employers. Ibid. And normally petty
slights, minor annoyances, and simple lack of good manners will not create such
action is viewed from the perspective of the reasonable employee.
schedule change in an employee's work schedule may make little difference to
many workers, but may matter enormously to a young mother with school age
children. Cf., e.g., Washington
v. Illinois Dept. of
Revenue, 420 F. 3d 658, 662 (7th Cir 2005) (finding flex-time schedule
critical to employee with disabled child)."
supervisor's refusal to invite an employee to lunch is normally trivial, a
nonactionable petty slight. But to retaliate by excluding an employee from a
weekly training lunch that contributes significantly to the employee's
professional advancement might well deter a reasonable employee from complaining
cases: Moore v. City of Philadelphia,
___ F.3d ___ (3rd Cir 08/30/2006) (discipline allegedly more sever than normal;
threat, assault, transfer; pattern of harassment); Kessler
v. Westchester County Department of Social Services, ___ F.3d ___
(2nd Cir 08/23/2006) (transfer with reduced responsibilities raised factual
issue on whether the change was "materially adverse"); Randolph
v. Ohio Dept. of Youth Services, 453 F.3d 724 (6th Cir 07/13/2006) (administrative leave,
then discharge, then reinstatement with less than full back pay).
Garcetti v. Ceballos, 126 S.Ct. 1951 (05/30/2006) (5-4)
Ceballos, a supervising deputy district attorney, concluded that a search
warrant affidavit made serious misrepresentations. He relayed his findings to
his supervisors and followed up with a disposition memorandum recommending
dismissal. His supervisors nevertheless proceeded with the prosecution. At a
hearing on a defense motion to challenge the warrant, Ceballos recounted his
observations about the affidavit, but the trial court rejected the challenge.
Claiming that his supervisors then retaliated against him for his memo in
violation of the First and Fourteenth Amendments, Ceballos filed a 42 USC §
When public employees make statements pursuant to their official duties, they
are not speaking as citizens for First Amendment purposes, and the Constitution
does not insulate their communications from employer discipline.
quote: "The controlling factor in Ceballos' case is that his
expressions were made pursuant to his duties." "We hold that when
public employees make statements pursuant to their official duties, the
employees are not speaking as citizens for First Amendment purposes, and the
Constitution does not insulate their communications from employer
cases: Reuland v. Hynes, ___ F.3d
___ (2d Cir 08/21/2006) (assistant DA's false statement to newspaper was
protected); Fuerst v. Clarke, 454 F.3d
770 (7th Cir 07/27/2006) (deputy sheriff was speaking in his capacity as a union
representative rather than as a deputy sheriff); Hill v. Borough of Kutztown, 455 F.3d 225 (3rd Cir 07/26/2006)
(borough manager's complaints to borough council regarding the mayor: some
unprotected, some cannot be determined on a 12(b)(6) motion); Bailey
v. Dept of Elementary & Secondary Educ, 451 F.3d 514 (8th Cir
06/23/2006) (consultant (contractor) complained to supervisor and Commissioner;
speech primarily concerned consultant's own
interests and "as an employee concerned with being paid for his
time"); Mills v. City of Evansville,
452 F.3d 646 (7th Cir 06/20/2006) (police sergeant's statement to managers that
the police chief's staffing plan would not work was unprotected).
Ledbetter v. Goodyear Tire & Rubber (Pending - US Supreme Court)
Docket No. 05-1074.
Oral argument scheduled for __________.
Decision below: Ledbetter
v. Goodyear Tire & Rubber, 421 F.3d 1169 (11th Cir 08/23/2005)
Ledbetter claimed that, because of her sex, her employer paid her a smaller
salary than it paid male co-workers. Her periodic paychecks were based on annual
salary reviews. A jury awarded damages to Ledbetter based on a series of salary
decisions going back 19 years. The 11th Circuit reversed and ordered that
Ledbetter's complaint be dismissed.
Title VII § 706(e)(1): "A charge under this section shall be filed within
one hundred and eighty days after the alleged unlawful employment practice
- 11th Circuit: The claim was time barred because Ledbetter could not prove
intentional discrimination in either (1) the one decision during the
limitations period or (2) the last decision preceding the limitation
quote - 11th Circuit: "We conclude that in the search for an improperly
motivated, affirmative decision directly affecting an employee's pay, the
employee may reach outside the limitations period created by her EEOC charge no
further than the last such decision immediately preceding the start of the
limitations period. We do not hold that an employee may reach back even that
far; what we hold is that she may reach no further."
statement of the issue in the Supreme Court: "Whether and under what
circumstances a plaintiff may bring an action under Title VII of the Civil
Rights Act of 1964 alleging illegal pay discrimination when the disparate pay is
received during the statutory limitations period, but is the result of
intentionally discriminatory pay decisions that occurred outside the limitations
Arbaugh v. Y&H Corp, 126 S.Ct. 1235 (02/22/2006)
Arbaugh sued her former employer under Title VII and related state law claims. A
jury returned a verdict in her favor. After the trial court entered judgment on
that verdict, Y&H moved to dismiss the entire action for want of federal
subject-matter jurisdiction, asserting, for the first time, that it had fewer
than 15 employees on its payroll and therefore was not amenable to suit under
Title VII § 701(b): "The term 'employer' means a person engaged in an
industry affecting commerce who has fifteen or more employees ...."
Title VII's numerical threshold does not circumscribe federal-court
subject-matter jurisdiction. Instead, the employee-numerosity requirement
relates to the substantive adequacy of Arbaugh's Title VII claim, and therefore
could not be raised defensively late in the lawsuit, i.e., after Y&H
had failed to assert the objection prior to the close of trial on the merits.
cases: The same result under other statutes: Minard
v. ITC Deltacom, 447 F.3d 352 (5th
Cir 04/18/2006) (FMLA); Cobb v.
Contract Transport, 452 F.3d 543 (6th Cir 06/28/2006) (FMLA); Fernandez
v. Centerplate/NBSE, 441 F.3d 1006 (DC Cir 03/24/2006) (FLSA).
Ash v. Tyson Foods, 126 S.Ct. 1195 (02/21/2006)
Two African-American superintendents were denied promotions. There was evidence
that the plant manager (the decisionmaker) referred to each of the employees as
"boy." The 11th Circuit held that use of "boy" alone
(without adding "white" or "black") was not evidence of
racial animus. The employees submitted evidence that their qualifications
were better than the two whites that were promoted, but the 11th Circuit
rejected this as evidence of pretext.
"Boy," standing alone, may or may not evidence racial animus.
"Although it is true the disputed word will not always be evidence of
racial animus, it does not follow that the term, standing alone, is always
benign. The speaker's meaning may depend on various factors including context,
inflection, tone of voice, local custom, and historical usage. Insofar as the
Court of Appeals held that modifiers or qualifications are necessary in all
instances to render the disputed term probative of bias, the court's decision is
cases: Ash v. Tyson Foods
(11th Cir 08/02/2006)
(unpublished) (adhering to original decision); Canady
v. Wal-Mart Stores, 440 F.3d 1031 (8th Cir 03/17/2006) (2-1) (evidence did
not support finding of harassment; "slave driver" was used to describe
manger's reputation; employee did not complain about manager saying "what's
up my nigga" and manager apologized).
(2): The following 11th Circuit
formula is error: "Pretext can be established through comparing
qualifications only when 'the disparity in qualifications is so apparent as
virtually to jump off the page and slap you in the face.'"
quote: "The visual image of
words jumping off the page to slap you (presumably a court) in the face is
unhelpful and imprecise as an elaboration of the standard for inferring pretext
from superior qualifications."
cases: Ash v. Tyson Foods (11th Cir 08/02/2006)
(unpublished) (adhering to original decision); Brooks v. County Commission, 446 F.3d 1160 (11th Cir 04/18/2006)
("disparities in qualifications must be of such weight and significance
that no reasonable person, in the exercise of impartial judgment, could have
chosen the candidate selected over the plaintiff for the job in question,"
following Cooper v. Southern
F.3d 695 (11th Cir 2004)); Mlynczak v.
Bodman, 442 F.3d 1050 (7th Cir 04/04/2006) ("essentially the same
as" the Cooper standard); Bender
v. Hecht Dept Stores, 455 F.3d 612 (6th Cir 08/01/2006) (qualifications
evidence must be combined with other evidence of discrimination).
Circuit: Price v. Federal Express,
283 F.3d 715 (5th Cir 2002)
(qualifications must "leap from the record and cry out to all who would
listen that [the plaintiff] was vastly - or even clearly - more qualified for
the subject job.")
Mississippi Power & Light, 442 F.3d 313 (5th Cir 03/02/2006)
Facts: The union demonstrated that the employer had an employment
practice that had a disproportionate impact on African-Americans. The practice
was the method of setting cutoff scores for a validated standardized test. The
employer demonstrated that its practice was both "job related" and
"consistent with business necessity." Neither party made a showing
that there was, or was not, an alternative selection device that would have a
lesser racial impact and also serve the employer's legitimate interest.
Statute: Title VII § 703(k)(A) [CRA of 1991]: "An
unlawful employment practice based on disparate impact is established ... only
complaining party demonstrates that a respondent uses a particular employment
practice that causes a disparate impact on the basis of race, color, religion,
sex, or national origin and the respondent fails to demonstrate that the
challenged practice is job related for the position in question and consistent
with business necessity; or
complaining party makes the demonstration described in subparagraph (C) with
respect to an alternative employment practice and the respondent refuses to
adopt such alternative employment practice."
Held: The burden of proof (persuasion) is on the plaintiff.
Related cases: Two placed the burden on the plaintiff: Lanning
v. Southeastern Penn Trans Auth, 181 F.3d 478 (3rd Cir 1999); Fitzpatrick
v. City of Atlanta, 2 F.3d 1112 (11th Cir 1993). One placed the burden on
the employer: Bradley v. Pizzaco of
Nebraska, 7 F.3d 795 (8th Cir 1993).
Mohawk Industries, Inc v. Williams, 126 S.Ct. 2016 (06/05/2006)
Hourly employees and former employees alleged that the employer's widespread and
knowing employment and harboring of illegal workers allowed the employer to
depress wages for its legal hourly employees and to discourage workers
compensation claims - all in violation of the federal RICO statute. The trial
court denied the employer's motion to dismiss; the 11th Circuit affirmed.
in the Supreme Court: Plaintiffs alleged that the employer (a corporation)
was part of a separate RICO "enterprise" made up of a combination of
the employer plus recruiting agencies, with a common purpose of hiring and
harboring illegal workers. The key issue during the Supreme Court arguments was
whether a corporation can be part of a RICO "association-in-fact"
separate "enterprise." (The 11th Circuit concluded that the
"enterprise" is the association-in-fact between the employer and the
The Supreme Court sidestepped the issue that consumed most of the briefs and
oral argument. The decision:
CURIAM. The writ of certiorari limited to Question 1 presented by the petition,
granted at 546 U. S. ___ (2005), is dismissed as improvidently granted. The
petition for a writ of certiorari is granted. The judgment is vacated, and the
case is remanded to the United States Court of Appeals for the Eleventh Circuit
for further consideration in light of Anza v. Ideal Steel Supply Corp
[126 S.Ct. 1991 (06/05/2006)]."
In the Anza case the Supreme
Court's focus was on whether the plaintiff had properly alleged that the
defendant's RICO violation was the proximate cause of the plaintiff's injury,
which requires "some direct relation between the injury asserted and the
injurious conduct alleged." Plaintiff and defendant were competitors. Claim #1 was that defendant filed false tax returns by mail
(violating RICO) to conceal its failure to charge tax to cash customers,
allowing it to reduce prices, which caused plaintiff to lose sales. Held:
No proximate cause. Claim #2 was that
defendant used illegal income to open a new store, which caused loss of
business. Held: Remanded on proximate cause issue.
Sereboff v. Mid Atlantic Medical Services, 126 S.Ct. 1869
The Sereboffs were injured in a traffic accident, and their ERISA plan paid
their medical expenses of about $75,000. Later, the Sereboffs recovered about
$750,000 in a settlement from a third party. The ERISA plan had an "Acts of
Third Parties" provision which requires a beneficiary who is injured as a
result of an act or omission of a third party to reimburse the plan for benefits
it pays on account of those injuries, if the beneficiary recovers for those
injuries from the third party. The plan sued under ERISA § 502(a)(3), seeking
to collect from the Sereboffs' tort recovery the medical expenses it had paid on
the Sereboffs' behalf. The Sereboffs agreed to set aside from their tort
recovery a sum equal to the amount the plan claimed, and preserve this sum in an
investment account pending the outcome of the suit.
A fiduciary may bring a civil action under § 502(a)(3)(B) "to obtain …
appropriate equitable relief … to enforce … the terms of the plan."
The plan's suit properly sought "equitable relief" under § 502(a)(3).
The Court distinguished Great-West
Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002), which
involved a provision in an ERISA plan similar to the "Acts of Third
Parties" provision in the Sereboffs' plan. Relying on such a provision,
Great-West sought equitable restitution of benefits it had paid when Knudson
recovered in tort from a third party. In considering whether § 502(a)(3)(b)
authorized such relief, the Court asked whether the restitutionary remedy
Great-West sought would have been equitable in "the days of the divided
bench." The Court found that it would not have been equitable, because the
funds Great-West sought were not in Knudson's possession but had been placed in
a trust under California law. In contrast, in the Sereboff case the plan
sought identifiable funds within the Sereboffs' possession and control - that
part of the tort settlement due to the plan and set aside in the investment
cases: Moore v. CapitalCare, ___
F.3d ___ (DC Cir 08/29/2006) (plan can recover even though beneficiary was not
fully made whole); Popowski v. Parrott,
___ F.3d ___ (11th Cir 08/24/2006) (two separate cases in which plans sought
reimbursement; Case #1 sought
equitable relief because the participant agreed to a lien on identifiable funds;
Case #2 did not seek equitable relief
because the plan sought relief from the beneficiary's general assets); Coan
v. Kaufman, ___ F.3d ___ (2nd Cir 07/21/2006) (plan participant's suit
against trustees alleging breach of fiduciary duty did not seek equitable
relief); Dillard's Inc v. Liberty Life Assurance, ___ F.3d ___ (8th Cir
07/19/2006) (reimbursement claim for overpayments resulting from payment of
social security benefits sought equitable relief); LaRue v.
DeWolff, Boberg & Assoc, 450 F.3d 570 (4th Cir
06/19/2006) (401(k) plan participant's § 1132(a)(3) suit against plan
administrator alleging failure to follow investment instructions was not seeking
Retail Industry Leaders Association v. Fielder, 435 F.Supp.2d 481
(District of Maryland 07/19/2006).
statute: Maryland Fair Share Health Care Fund Act requires that a for-profit
employer with 10,000 or more employees in the state that "does not spend up
to 8% of the total wages paid to employees in the State on health insurance
costs shall pay to the Secretary an amount equal to the difference between what
the employer spends for health insurance costs and an amount equal to 8% of the
total wages paid to employees in the State." The Act defines "health
insurance costs" as "the amount paid by an employer to provide health
care or health insurance to employees in the State to the extent the costs may
be deductible by an employer under federal tax law."
§ 514(a) preempts "any and all State laws insofar as they may now or
hereafter relate to any employee benefit plan" covered by ERISA.
The Maryland statute "has a connection with an ERISA plan and is preempted
on that ground."
quote: "In determining whether a statute has a 'connection with' an
ERISA plan, a court must look to (1) 'the objectives of the ERISA statute as a
guide to the scope of the state law that Congress understood would survive'; and
(2) 'the nature of the effect of the state law on ERISA plans.' Egelhoff v. Egelhoff, 532 U.S. 141, 147 (2001). In regard to the
first factor, the main objective of ERISA's preemption clause is 'to avoid a
multiplicity of regulation in order to permit the nationally uniform
administration of employee benefit plans.' * * * As to the second factor of the
'connection with' test, the intended effect of the Act is to force Wal-Mart to
increase its contribution to its health benefit plan, which is an ERISA plan,
and the actual effect of the Act will be to coerce Wal-Mart into doing so.
Therefore, this factor is fully satisfied."
v. Gannon University, ___ F.3d ___ (3rd Cir 09/06/2006) (on rehearing)
During a restructuring, a Catholic university demoted Petruska from her position
as chaplain. Her suit alleged (1) demotion because of her sex and in retaliation
for her opposition to sexual harassment in violation of Title VII, (2) civil
conspiracy, (3) negligent supervision and retention, (4) fraudulent
misrepresentation, and (5) breach of contract.
The ministerial exception requires dismissal of the claims of Title VII
discrimination and retaliation, civil conspiracy, and negligent supervision and
retention. It does not require dismissal of the claims of fraudulent
misrepresentation or breach of contract.
General rule: The ministerial exception, "a doctrine rooted in
the First Amendment," "applies to any claim, the resolution of which
would limit a religious institution's right to choose who will perform
particular spiritual functions."
Title VII: "Gannon's choice to restructure constituted a
decision about who would perform spiritual functions and about how those
functions would be divided. Accordingly, application of Title VII's
discrimination and retaliation provisions to Gannon's decision to restructure
would violate the Free Exercise Clause."
Civil conspiracy and negligent supervision: "Because the First
Amendment protects Gannon's right to restructure - regardless of its reason for
doing so - we cannot consider whether the act was unlawful or tortious, and,
therefore, these claims must be dismissed."
Fraudulent misrepresentation: "The resolution of Petruska's
fraudulent misrepresentation claim does not turn on the lawfulness of the
decision to restructure, but rather on the truth or falsity of the assurances
that she would be evaluated on her merits .... * * * The state's prohibition
against fraud does not infringe upon Gannon's freedom to select its ministers
Contract claim: "Application of state contract law does not
involve government-imposed limits on Gannon's right to select its ministers:
Unlike the duties under Title VII and state tort law, contractual obligations
are entirely voluntary."
now vacated, decision, 448
F.3d 615 (05/24/2006) (2-1) [in advance sheet; withdrawn from bound volume]
held: The district court could not dismiss any of these claims.
quote from vacated opinion:
adopt a carefully tailored version of the ministerial exception. Where otherwise
illegal discrimination is based on religious belief, religious doctrine, or the
internal regulations of a church, the First Amendment exempts religious
institutions from Title VII. In such cases, restricting a church's freedom to
select its ministers would violate the Free Exercise Clause by inhibiting the
church's ability to express its beliefs and put them into practice. Furthermore,
questions about religious matters would pervade litigation, entangling courts in
ecclesiastical matters and violating the Establishment Clause.
where a church discriminates for reasons unrelated to religion, we hold that the
Constitution does not foreclose Title VII suits. Employment discrimination
unconnected to religious belief, religious doctrine, or the internal regulations
of a church is simply the exercise of intolerance, not the free exercise of
religion that the Constitution protects. Furthermore, in adjudicating suits that
do not involve religious rationales for employment action, courts need not
consider questions of religious belief, religious doctrine, or internal church
regulation, a process that would violate the Establishment Clause by entangling
courts in religious affairs."
The traditional and majority
rule: The ministerial exception "deprives a federal court
of jurisdiction to hear a Title VII employment discrimination suit brought
against a church by a member of its clergy, even when the church's challenged
actions are not based on religious doctrine."
Combs v. Central Texas Annual
Conference, 173 F.3d 350 (5th Cir 1999), following McClure
v. Salvation Army, 460 F.2d 553 (5th Cir 1972).
v. Catholic Diocese, 442 F.3d 1036 (7th Cir 04/04/2006) followed the
traditional rule in an ADEA case involving
removal of a choir director.
v. Lyght, 438 F.3d 163 (2nd Cir 02/16/2006) (2-1), involving
forced retirement of a clergy member, avoided deciding the
ministerial exception issue, and held that the Religious Freedom Restoration Act
amended the ADEA. Remanded for reconsideration in light of the Religious Freedom
v. Calvin Presbyterian Church, 375 F.3d 951 (9th Cir 2004) (2-1), rehearing
denied with opinions, 397 F.3d 790 (2005), held that a church minister can state
a claim for sexual harassment, but the
ministerial exception requires dismissal of any claim involving discharge.
v. Heartland Presbytery, 342 F.Supp.2d 996 (D Kans 2004) held that a
church pastor can state a claim for sexual harassment and retaliation.
Amalgamated Transit Union v. Laidlaw Transit, 435 F.3d 1140 (9th Cir
01/26/2006), en banc rehearing denied with
448 F.3d 1092 (05/22/2006)
A union and employees filed a class action in state court alleging state law
claims, and the employer removed to federal court under the Class Action
Fairness Act (CAFA). The federal court denied plaintiffs' motion to remand to
state court, and plaintiffs appealed.
28 USC § 1453(c)(1): "... a court of appeals may accept an appeal from an
order of a district court granting or denying a motion to remand a class action
to the State court from which it was removed if application is made to the court
of appeals not less than 7 days after entry of the order."
Although § 1453(c)(1) provides that an application may be made "not
less" than 7 days after entry of the order, it should be read as requiring
that an application be made "not more" than 7 days after entry of the
"Federal Rule of Appellate Procedure [FRAP] 5 governs the initiation of
such appeals, and ... the petition for permission to take an appeal must be
filed not more than seven court days after the district court's order."
for rehearing en banc: Motion
denied. Six judges filed a dissent arguing
that a court has no business rewriting the statute merely because the way it was
actually written is "illogical."
cases agree: Morgan
v. Gay, __ F.3d __ (3rd Cir 10/16/2006); Patterson v. Dean Morris,
444 F.3d 365 (5th
filing 9 calendar days after the order is within the 7-day limit because
weekends and holidays are excluded); Miedema
v. Maytag Corp, 450 F.3d 1322 (11th Cir
06/05/2006); Pritchett v. Office Depot,
Inc., 420 F.3d 1090 (10th Cir 2005) ("not less" was a
IBP, Inc v. Alvarez, 126 S.Ct.
Employees working in meat-packing and chicken-cutting plants must wear special
protective clothing. They show up at the plant and wait (sometimes in line) to
put on the clothing. Then they walk to their individual workstations. At the end
of the shift they walk back to a locker room, perhaps do some waiting, and then
take off the protective clothing.
the Fair Labor Standards Act (FLSA) requires that
employees be paid wages for the time they spend putting on required protective
clothing and walking to their work stations from the place where they put on the
clothing. Employees also must be paid for the whole day, including time spent
waiting to take off the clothing, and the day ends when they take off the
protective clothing. However, there is no requirement that employees be paid for
time spent waiting to put on the first piece of protective clothing.
"We hold that any activity that is 'integral and indispensable' to a
'principal activity' is itself a 'principal activity' under § 4(a) of the
Portal-to-Portal Act. Moreover, during a continuous workday, any walking time
that occurs after the beginning of the employee's first principal activity and
before the end of the employee's last principal activity is excluded from the
scope of that provision, and as a result is covered by the FLSA."
Domino's Pizza v. McDonald, 126 S.Ct. 1246 (02/22/2006)
McDonald, a black man, was president and sole shareholder of JWM Investments,
Inc., which corporation entered into contracts with Domino's. McDonald claimed
that Domino's broke those contracts because of racial animus toward McDonald,
and sued under 42 USC § 1981.
42 USC § 1981: "All persons within the jurisdiction of the United States
shall have the same right in every State and Territory to make and enforce
contracts ... as is enjoyed by white citizens ...."
A plaintiff cannot state a § 1981 claim unless he has (or would have) rights
under the existing (or proposed) contract that he wishes "to make and