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June 20, 2005
False Claims Act retaliation claim statute of limitations
The US Supreme Court says the statute of limitations for False Claims Act retaliation claims is the most analogous state statute. Graham County Soil v. US ex rel Wilson (US Supreme Court 06/20/2005).
Wilson sued under the federal False Claims Act (FCA) claiming her employer retaliated against her for alerting federal officials to purported fraud and for cooperating with the ensuing investigation. The trial court dismissed the suit as untimely under the state's 3-year statute of limitations; the 4th Circuit reversed, applying the FCA's 6-year limitation period; the US Supreme Court reversed.
The US Supreme Court held: The appropriate statute of limitations in a False Claims Act retaliation case is the most closely analogous state statute, not the 6-year period stated in the FCA.
My view: (1) Typically state statutes of limitations will be shorter than six years. (2) Plaintiffs often join a retaliation claim with a qui tam action in the Government's name (hoping to collect a portion of the ill-gotten gains). The qui tam claim will governed by the federal six-years statute of limitations.
Posted June 20, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
June 02, 2005
EEOC notice not posted might toll tardy filing
Two former employees filed EEOC charges late, but still might be able to sue under Title VII if the employer did not post EEOC notices.
Title VII says EEOC charges must be filed within 300 days of the alleged unlawful practice. Title VII also requires employers to post a notice approved by the EEOC. The employees clearly filed after the 300 day period. However, the employees claimed the employer did not post the notice.
The 300 day filing period is subject to equitable tolling. The trial court thought that tolling takes place only when the employee is "actively misled" by the employer. Not so, said the 1st Circuit. Mercado v. The Ritz-Carlton (1st Cir 05/31/2005).
"An employer's violation of the EEOC posting requirement may provide a second basis for an extended filing period 'where the employee had no other actual or constructive knowledge of [the] complaint procedures.'"
The court listed a bunch of factual questions that the trial court will have to sort out: Did the employees have actual knowledge of their Title VII rights? Did they have constructive knowledge? Did the employer in fact post the notice? Did the employee handbook provide notice? Why did the employees wait 10 months to see a lawyer? Although the employees saw a lawyer before the 300 days ran (one day and ten days, respectively), why were EEOC charges not filed until 33 days later? Was the employer prejudiced by the delay? And when, exactly, did the 300 day period begin?
My view: (1) Employers should post the EEOC notices. (2) Employees should file with the EEOC in a timely manner.
From another blog: Michael Fox's Jottings By An Employer's Lawyer [here].
Posted June 02, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
May 04, 2005
Skimpy EEOC charge was good enough
Does an EEOC charge really have to state facts as to harassment in order to bring a Title VII suit? Maybe not, according to the 11th Circuit.
Freddy Green's pro se EEOC charge checked the box for race discrimination and gave one single date for both the "earliest" and "latest" dates. As for factual particulars he wrote:
I. I was employed from March 7, 1995 until my discharge January 2, 2001. I was terminated for violation of the attendance policy, but I have no written warnings for attendance. White males that have written warnings and have committed further violations were not terminated.II. Management stated I was discharged because of violation of the attendance policy.
III. I believe that I have been discriminated against because of my race (black) in violation of Title VII of the Civil Rights Act of 1964, as amended.
When Green sued for both racially discriminatory (a) discharge and (b) harassment, the trial court found enough evidence of both, but ruled that his EEOC charge was procedurally defective as to the harassment claim. Green won a jury verdict on the discharge claim, and appealed from the denial of the harassment claim.
The 11th Circuit ruled (2-1) that the harassment claim could go forward. Green v. Elixir Industries (11th Cir 04/29/2005). The court said Green's harassment and discharge claims were "inextricable intertwined," pointing to pre-discharge harassment facts that were introduced as evidence of the employer's motive for the discharge. The reasoning: if this evidence was "related to" the discharge claim, then it was "related to" the harassment claim.
In addition, the EEOC charge mentioned race discrimination, which racial harassment clearly is. The court also emphasized that one purpose of the EEOC charge is to put the employer on notice of the allegations, and the person who was responsible for the discharge was intimately familiar with the alleged harassing conduct.
The dissent said Green failed to allege facts sufficient to inform the EEOC that he was complaining of hostile work environment. "Green's EEOC charge does not allege a single fact that reasonably could have been expected to prompt the EEOC to investigate a charge of hostile work environment."
My view: This case takes the rules to the outer limit.
There really was nothing in the EEOC charge that would suggest to the EEOC that Green had a harassment claim. Indeed, the statement of a single date plus Green's emphasis on discharge would suggest that harassment was not an issue.
Therefore, if the purpose of an EEOC charge is to allow the EEOC to investigate and try to resolve claims without law suits, then the charge was woefully defective.
If, however, the purpose of the EEOC charge is to put the employer on notice, you could look at it two ways. One is what the majority said, which is that the employer's decision maker knew all the harassment facts and didn't need to be told. The other is that Green's failure to even hint at harassment meant that he was not making a harassment claim.
I don't expect to see other Circuits following this decision.
Posted May 04, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
April 14, 2005
Class Action Fairness Act does not apply . . .
. . . to pending state cases that are removed after the effective date of the Act.
A class action claiming violation of state law overtime requirements was pending in state court at the time the Class Action Fairness Act of 2005 went into effect on February 18, 2005.
The employer removed the case to federal court under the Act's provision that expanded the subject matter jurisdiction of federal courts to cover class actions in which at least one plaintiff class member is diverse in citizenship from the defendant and where the amount in controversy exceeds $5 million.
The federal district court remanded the case back to state court. The 10th Circuit agreed that federal courts have no jurisdiction. Pritchett v. Office Depot (10th Cir 04/11/2005).
Section 9 of the Act provides that "[t]he amendments made by this Act shall apply to any civil action commenced on or after the date of enactment of this Act."
Pritchett's case was filed in state court prior to the effective date of the Act, but the employer's petition for removal was filed after the effective date of the Act. The employer argued that Pritchett's case was "commenced" under Section 9 as of the date that it was removed to federal court. Pritchett argued that the case was "commenced" under Section 9 as of the date it was filed in state court. The court agreed with Pritchett, observing that "[t]raditionally, a cause of action is commenced when it is first brought in an appropriate court, which here was when it was brought in state court.... When a matter is removed to federal court, it is not traditionally viewed as recommenced, nor as a new cause of action."
My view: A strained argument by the employer. The court knows how to read a statute.
Posted April 14, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
March 09, 2005
Two tales of failure to exhaust administrative remedies
Today's Employment Law Memo from LawMemo.Com tells two tales of employees who went to court without exhausting their administrative remedies. In one case it was a failure to include all his claims in his EEOC charge, and in the other it was a failure to use the employer's internal remedies.
In Parisi v. Boeing (8th Cir 03/07/2005) The Boeing Company was selling its plant and laid off many employees, including Parisi, on January 12, 2001. Parisi filed an EEOC charge on July 23 alleging that Boeing violated the ADEA by laying him off and by refusing to rehire him (both took place January 12). OK, one refusal to rehire. When he sued in federal court, Parisi claimed Boeing had failed to rehire him not just once, but on 94 occasions - all later. One problem. Parisi never mentioned these 94 incidents in his EEOC charge. The 8th Circuit held that each failure to rehire was a separate incident that was not "reasonably related" to what was in his EEOC charge. Claims dismissed. Message to plaintiffs: Tell everything in the EEOC charge. File an amended charge or an additional charge if you need to.
Campbell v. Regents of University of California (California 03/07/2005) involved a university employee bringing a whistleblower suit under California statutes. The university was set up by the state constitution with "quasi-legislative powers." The court held that the university exercised those powers when it adopted a formal Policy that required that a whistleblower's complaint be filed under that Policy. The employee did not file a complaint under the Policy. The California Supreme Court wrote a lot of words, as usual, and unanimously concluded that the employee "should have exhausted the university administrative remedies before proceeding to court." Judgment for the university.
Posted March 09, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
