The U.S. Court of Appeals for the Fourth Circuit — already famous for not publishing many of its decisions — has continued the trend this year with very few published decisions. Several recent employment law decisions, however, are published decisions and warrant comment here. We also note a recent unpublished decision that might be of interest.
Gagliano v. Reliance Standard Life Ins. Co. (07-1901) (Nov. 18, 2008) (ERISA): The Court found violations of ERISA in administration of a disability insurance review but remanded the case to the plan administrator for a full review. The plan administrator issued a second determination letter denying benefits on a ground not raised in its first letter. The Court found that the second letter was an “initial” denial as to that ground, requiring the issuance of an ERISA appeals notice to the claimant. The plan administrator’s failure to give that notice was an ERISA violation. Following prior decisions, the Court held that the appropriate remedy was to remand the matter to the plan administrator for a full and fair review of the issue, the only exception being when the plan administrator’s denial of the claim was an abuse of discretion as a matter of law.
Ziskie v. Mineta (06-2060) (Nov. 14, 2008) (hostile work environment, sexual harassment): The Court reversed a grant of summary judgment in favor of the defendant-employer by the U.S. District Court for the Eastern District of Virginia because the District Court had refused to consider affidavits of co-workers filed by the plaintiff regarding conduct not witnessed by the plaintiff. The Court found that the blanket exclusion of the affidavits was in error — rather, the fact that the plaintiff did not witness the specific incidents in the affidavits might go to the weight to be accorded the affidavits by the District Court.
The Court also discussed how the facts might be viewed on remand with respect to the elements of the plaintiff’s sexual harassment claim. It used almost a full page to comment on the plaintiff’s four-day work weeks: “For reasons unrelated to sex, this behavior was unlikely to endear Ziskie to her colleagues,” and her habit of taking notes in her diary of virtually everything that happened to her: “Co-workers might also not take warmly to the fact that Ziskie was meticulously recording in her diary every conceivably offensive comment they made and every instance in which they did not help her as much as she thought was appropriate. Her fellow workers might well resent her openly examining the log files to determine when they arrives at and left work.” The Court went on to direct the District Court that “on remand Ziskie must demonstrate under the standards set forth in [the opinion] that a reasonable jury could see the hostility as a product of gender animus rather than the kind of personality conflict that pervades many a workplace.”
Lightner v. City of Wilmington (07-1442) (Nov. 3, 2008) (Title VII pretext issues): The Court affirmed the dismissal of plaintiff’s Title VII race and gender discrimination claims for failure to show pretext. The seminal paragraph of the Court’s opinion is as follows:
“Plaintiff’s claim founders on its own terms. By the Plaintiff’s own repeated admission, the real reason for his suspension was to cover up department wrongdoing. This is not race or gender discrimination and therefore is not actionable under Title VII. . . . In offering this explanation as to the real reason for his employer’s action, the plaintiff has undone his case.” The opinion does not look kindly on the plaintiff’s efforts to turn Title VII into a whistleblower statute.
Technology Partners, Inc. v. Hart (08-1651) (Nov. 4, 2008) (unpublished) (NC noncompete agreement): The Court affirmed the denial of a preliminary injunction based on a noncompete agreement and trade secrets claim under North Carolina law and the Blackwelder preliminary injunction analysis.