This document summarizes several recent developments in employment law across various areas: 1) It discusses recent court rulings on whether law firm shareholders are considered employees under discrimination statutes, the appropriate causation standard for ADA claims, and whether the paycheck accrual rule applies to §1983 cases. 2) It also summarizes recent cases related to burden of proof standards for FMLA interference claims, the scope of bankruptcy anti-discrimination statutes, and whether a new EEOC charge is required for retaliation occurring after an initial filing. 3) Additionally, the document analyzes issues like what constitutes actionable retaliation by a lawyer, the right to a jury trial under the WARN Act, and standards for

1. CUTTING-EDGE
EMPLOYMENT LAW ISSUES
by
Robert B. Fitzpatrick, Esq.
Robert B. Fitzpatrick, PLLC
Universal Building South
1825 Connecticut Avenue, N.W.
Suite 640
Washington, D.C. 20009-5728
(202) 588-5300
(202) 588-5023 (fax)
fitzpatrick.law@verizon.net (e-mail)
http://www.robertbfitzpatrick.com (website)

2. DISCLAIMER OF ALL LIABILITY
AND RESPONSIBILITY
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IS INTENDED TO ASSIST READERS AS A LEARNING AID; IT DOES NOT
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ADVICE. IT IS NOT WRITTEN (NOR IS IT INTENDED TO BE USED) FOR
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THE AUTHOR AND ANY READER. DUE TO THE RAPIDLY CHANGING
NATURE OF THE LAW, INFORMATION CONTAINED IN THIS PAPER MAY
BECOME OUTDATED. IN NO EVENT WILL THE AUTHOR BE LIABLE FOR
ANY DIRECT, INDIRECT, CONSEQUENTIAL, OR OTHER DAMAGES
RESULTING FROM AND/OR RELATED TO THE USE OF THIS MATERIAL.

3. Law Firm Shareholder Not an
Employee
• Kirleis v. Dickie, McCamey & Chilcote, P.C., 2010 U.S.
App. LEXIS 14530 (3d Cir. 2010) Kirleis v. Dickie,
McCamey & Chilcote, P.C., 2010 U.S. App. LEXIS
14530 (3d Cir. 2010) (applying the Clackamas
Gastroenterology factors, the Court found that the
plaintiff-class A shareholder/director was not “a mere
employee,” relying on the fact that she had the ability to
participate in the lawfirm‟s governance, the right not to
be terminated without a three fourth‟s vote of the Board
for cause, and an entitlement to a percentage of the
firm‟s profits, losses, and liabilities.
• See also Solon v. Kaplan, 398 F.3d 629, 633 (7th Cir. 2005);
Schmidt v. Ottawa Med. Ctr., C.P., 322 F.3d 461, 467-68 (7th Cir.
2003))

4. ADA-Motivating Factor Test for
Causation
• Lewis v. Humboldt Acquisition Corp., Inc.,634 F.3d
879 (6th Cir. 2011), vacated by, reh’g granted en
banc, 2011 U.S. App. LEXIS 11941 (6th Cir. June
2, 2011) (current law of 6th Circuit is that plaintiff
must prove that his disability was the “sole reason”
for the adverse employment action.)
– See also Fitzgerald v. Carr Corp. of Am., 403 F.3d
1134, 1144 (10th Cir. 2005)
• Eight circuits apply a “motivating factor” (or a
“substantial cause”) test. Pinkerton v. Spellings,
529 F.3d 513, 518-19 & n.30 (5th Cir. 2008)
(collecting cases)

5. Paycheck Accrual Rule Applies
in 1983 Cases
• District Court, applying Supreme Court‟s
rejection of paycheck accrual rule in
Ledbetter, finds plaintiffs‟ claims untimely
• In Groesch v. Springfield, Ill., 635 F.3d
1020, 1026 (7th Cir. 2011), the 7th Circuit
reversed, holding “that there is no
principled reason for applying the
paycheck accrual theory to claims arising
under Title VII, but not to those under 42
U.S.C. 1983

6. FMLA-Burden of Proof on
Interference Claim
• Sanders v. Newport, Or., 2011 U.S. App. LEXIS
5263 (9th Cir. Mar. 17, 2011) (holding, in
agreement with 8th, 10th and 11th Circuits, that
employer carries the burden of proof when
defending against denial of reinstatement by
asserting a legitimate reason not to reinstate)
• Thornberry v. Mcgehee Desha County Hospital,
403 F.3d 972, 979 (8th Cir. 2005); Smith v. Diffee
Ford-Lincoln-Mercury, Inc. 298 F.3d 955, 963 (10th
Cir. 2002); Strickland v. Waterworks & Sewer
Board of Birmingham, 239 F.3d 1199, 1208 (11th
Cir. 2001)

7. Bankruptcy Discrimination
Statute
• 11 U.S.C. 525(a) applies to government
employers and (b) applies to private employers
• Myers v. TooJay’s Mgmt. Corp., 640 F.3d 1278
(11th Cir. 2011) (holding that 525(b) does not
prohibit private employers from denying
employment to persons because of their status as
a bankruptcy debtor); In re Burnett, 635 F.3d 169
(5th Cir. 2011) (same); Rea v. Federated
Investors, 627 F.3d 937 (3d Cir. 2010), petition for
cert. filed (April 14, 2011), Docket No. 10-1507
(same)

8. Title VII Retaliation Claims:
Application of Gross
• Smith v. Xerox Corp., 602 F.3d 320 (5th
Cir. 2010) (majority holds that Gross but-
for causation rule does not apply to Title
VII retaliation cases over a vigorous
dissent by Judge Jolly.)

9. Burlington Northern Retaliation Test
Satisfied by Aggregation of Events
• Johnson v. The Advertiser Co., No. 2:09-
CV-924-MEF, 2011 U.S. Dist. LEXIS
33236 (M.D. Ala. Mar 28, 2011)
• Wideman v. Wal-Mart Stores, Inc., 141
F.3d 1453, 1456 (11th Cir. 1998);
Leatherwood v. Anna’s Linens Co., 384
Fed. Appx. 853 (11th Cir. 2010)

10. Where Employer Articulates Multiple
Legitimate Reasons For Adverse Action,
Must Plaintiff Present Sufficient Evidence
That All of Those Reasons are Pretextual?
• Phillips v. Aaron Rents, Inc., 262 Fed.
Appx. 202, 208 (11th Cir. 2008) (“if an
employer articulates multiple legitimate
reasons for the adverse action, the plaintiff
must present sufficient evidence that all of
those reasons are pretextual.”)
– Accord Ash v. Tyson Foods, Inc., 392 Fed.
Appx. 817, 825 (11th Cir. 2010); Suchite v.
Kleppin, 2011 U.S. Dist. LEXIS 48211 (S.D.
Fla. May 5, 2011)

11. Retaliation After Initial Filing with
EEOC: Is a New Charge Required?
• Martinez v. Potter, 347 F.3d 1208 (10th Cir.
2003); Noland v. Albuquerque, 2011 U.S.
Dist. LEXIS 43974 (D.N.M. Apr. 2, 2011)
(subsequent filing required)
• Swearnigen-El v. Cook Cnty. Sheriff’s Dept.,
602 F.3d 852, 864 n.9 (7th Cir. 2010);
Edlebeck v. Trondent Dev. Corp., 2011 U.S.
Dist. LEXIS 24711 (N.D. Ill. Mar. 8, 2011)
(subsequent filing not required)

12. Can the Conduct of a Lawyer be
Actionable Retaliation?
• Suchite v. Kleppin, No. 10-21166, 2011
U.S. Dist. LEXIS 48211 (S.D. Fla. May 5,
2011) (requesting, in open court, that a
judge refer a plaintiff for criminal
investigation and possible prosecution or
deportation out of retaliatory animus may
be unlawful).

13. WARN Act: Right to Jury Trial?
• Bledsoe v. Emery Worldwide
Airlines, Inc., 635 F.3d 836 (6th Cir.
2011), reh’g denied by Bledsoe v. Emery
Worldwide Airlines, 2011 U.S. App. LEXIS
5008 (6th Cir. Mar. 9, 2011), petition for cert
filed (June 7, 2011), Docket No. 10-1497 (no
right to jury trial)
• Bentley v. Arlee Home Fashions, Inc., 861 F.
Supp. 65 (E.D. Ark. 1994) (right to jury trial)

14. Combined Class and Collective
Actions Approved
• Ervin v. OS Restaurant Servs., Inc., 632 F.3d 971, 973
(7th Cir. 2011) (Court holds that there is “no categorical
rule against certifying a Rule 23(b)(3) state-law class
action in a proceeding that also includes a collective
action brought under the FLSA.”)
• Wang v. Chinese Daily News, Inc., 623 F.3d 743, 753-
55, 760-62 (9th Cir. 2010); Lindsay v. GEICO, 448 F.3d
416, 420-25 (D.C. Cir. 2006)
• De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 307-
12 (3rd Cir. 2003) (holding that the District Court
presiding over an FLSA collective action should not
have exercised supplemental jurisdiction over parallel
state-law claims)

15. Selection of Class Counsel: Court
Takes Race and Gender into Account
• In re: Gildan Activewear Inc. Sec. Litig., 2010 U.S.
Dist. LEXIS 140619 (S.D.N.Y. Sept. 20, 2010)
(ordering Co-Lead Counsel to “make every effort
to assign to this matter at least one minority lawyer
and one woman lawyer with requisite
experience…”)
• In re: JP Morgan Chase Cash Balance Litigation,
242 F.R.D. 265, 277 (S.D.N.Y. 2007) (finding that
Co-lead counsel met the Court‟s diversity
requirement that “at least one minority lawyer and
one woman lawyer with requisite experience at the
firm be assigned to this matter.”)

16. Foreign Corrupt Practices Act:
“Foreign Official”
• U.S. v. Carson, No. 8:09-cr-00077-JVS-1 (C.D.Cal. May 18,
2011)(denial of motion to dismiss) (holding that, “whether
employees of state-owned companies could be „foreign
officials‟ within the meaning of the FCPA turns on whether
state-owned companies” are considered instrumentalities.
Business entities may be instrumentalities under the FCPA,
depending on the outcome of a fact-based inquiry.)
• U.S. v. Lindsey Mfg. Co., No. CR10-01031-AHM, 2011 U.S.
Dist. LEXIS 43895 (C.D. Cal. Apr. 20, 2011) (a.k.a. U.S. v.
Aguilar) (electrical utility company wholly owned by Mexican
government may be an “instrumentality” of a foreign
government within meaning of FCPA and officers of same
may be “foreign officials” within meaning of FCPA)

17. Attorneys‟ Fees: Application of
Buckhannon
• Singer Mgmt. Consultants, Inc. v. Milgram,
No. 09-2238, 2011 U.S. App. LEXIS 12106
(3rd Cir. June 15, 2011)(en banc) (over an
elegant dissent by Judge Aldisert, as well as
another dissent, the majority held that
“[b]ecause no enforceable judgment on the
merits issued in this case and the State‟s
actions that mooted the case were voluntary,
Buckhannon tells us that [the plaintiff who
obtained a TRO] was not a prevailing party.”)

18. Attorneys‟ Fees: Application of
Buckhannon Continued
• Nat’l Rifle Ass’n of Am., Inc. v. Chicago, Nos. 10-3957,
10-3965 & 11-1016, 2011 U.S. App. LEXIS 11055 (7th
Cir. June 2, 2011) (after the Supreme Court‟s Second
Amendment Heller decision, Chicago repealed its
ordinance banning operable handguns in the home,
and plaintiffs requested an award of attorney‟s fees.
The lower court concluded that plaintiffs were not
“prevailing parties,” relying on Buckhannon. The Court
of Appeals reversed in a brief opinion, stating: “If a
favorable decision of the Supreme Court does not
count as „the necessary judicial imprimatur‟ on the
plaintiffs‟ position…, what would?” (citation omitted))

19. Employment Application Shortens
Statute of Limitations
• Dunn v. Gordon Food Servs., Inc., No.
3:10-CV-00335-R, 2011 U.S. Dist. LEXIS
13387 (W.D. Ky. Feb 10, 2011) (Court,
collecting cases for the same proposition,
held that the federal and state courts have
repeatedly upheld a predetermined
limitations period for bringing legal action
against an employer contained in an
employment application so long as the
limitations period is reasonable.)

20. Summary Judgment
• Pye v. Nu Aire, Inc., 641 F.3d 1011 (8th Cir. 2011)
(internal quotations and citations omitted) (“There is
no „discrimination case exception‟ to the application
of summary judgment, which is a useful pretrial tool
to determine whether any case, including one
alleging discrimination, merits a trial. Although
employment discrimination cases are „often fact
intensive and dependant on nuance in the
workplace, they are not immune from summary
judgment.‟ If there is no dispute of material fact and
reasonable fact finders could not find in favor of the
nonmoving party, summary judgment is
appropriate.”)

21. Summary Judgment: New Factual
Allegations in Opposition
• Martinez v. Potter, 347 F.3d 1208, 1211 (10th Cir.
2003) (employee‟s allegations in response to
employer‟s summary judgment motion could not
proceed because they were not like or reasonably
related to his complaint)
• Viernow v. Euripides Dev. Corp. 157 F.3d
785, 790 n.9 (10th Cir. 1998) (“Issues raised for the
first time in a plaintiff‟s response to a motion for
summary judgment may be considered a request
to amend the complaint, pursuant to Fed. R. Civ.
P. 15.”)

22. Oral Notice of Right to Sue
• DeTata v. Rollprint, 632 F.3d 962 (7th Cir. 2011)
(Court, based upon the particular facts before it,
rejected the defense argument that plaintiff‟s
receipt of oral notification of its right to sue started
the 90-day time period to sue. The Court
recognized that there might be circumstances
where oral notice can suffice to start the 90-day
period.
– See, e.g. Ebbert v. Daimler Chrysler Corp., 319 F.3d
103, 116 (3rd Cir. 2003); Kerr v. McDonald’s Corp.,
427 F.3d 947, 948-53 (11th Cir. 2005); Ball v. Abbott
Advertising, Inc., 864 F.2d 419 (6th cir. 1988))

23. False Syllogism
• Ochei v. The Mary Manning Walsh
Nursing Home Co., Inc., No. 10 Civ. 2548
(CM)(RLE), 2011 U.S. Dist. LEXIS 20542
(S.D.N.Y. Mar. 1, 2011)
• Zucker v. Five Towns Coll., No. 09-CV-
4884 (JS)(AKT), 2010 U.S. Dist. LEXIS
85441 (E.D.N.Y. Aug. 18, 2010)

24. Iqbal and Twombly Plausibility
Standard Rejected by State Supreme
Court
• McCurry v. Chevy Chase, 233 P.3d 861
(Wash. 2010)(en banc) (the Washington
State Supreme Court, sitting en banc,
unanimously rejected the Iqbal and
Twombly plausibility standard)

25. Computer Fraud and Abuse Act
• Oil States Skagit Smatco, LLC v. Dupre, 2010 U.S.
Dist. LEXIS 126660 (E.D. La. Dec. 1, 2010)
(dismissing CFAA claim, because plaintiff did not
establish “loss” where economic losses were caused
by misappropriation of proprietary information rather
than interruption of service, and data restoration costs
did not meet jurisdictional threshold.)
• Dedalus Found. v. Banach, 2009 U.S. Dist. LEXIS
98606 (S.D.N.Y. Oct 16, 2009) (holding that employer
sufficiently stated claim without alleging
“transmission,” because employee‟s “„irretrievabl[e]
wiping‟ and „destruction‟ of files from her employer‟s
computer involved more than merely hit[ting] the
delete button.”)

26. Computer Fraud and Abuse Act
Continued
• Lee v. PMSI, Inc., 2011 U.S. Dist. LEXIS
52828 (M.D.Fla. May 6, 2011) (Court held
that counterclaim asserting a CFAA violation
based on plaintiff‟s “excessive internet usage”
failed to allege damage to defendant‟s
computer system and thus failed to state a
claim. The counterclaim‟s second CFAA
claim based on the allegation that plaintiff
“visit[ed] personal websites such as
Facebook and monitor[ed] and [sent]
personal e-mail through her Verizon webmail
account” likewise failed to state a claim.)

27. USERRA: Hostile Work
Environment Claim Rejected
• Carder v. Continental Airlines, 636 F.3d
172 (5th Cir. 2011), petition for cert. filed
(June 17, 2011), Docket No. 10-1546
(USERRA does not create a cause of
action for hostile work environment )

28. Loss of Consortium Rejected in
Title VII
• Barker v. Halliburton, No. 10-20638, 2011
U.S. App. LEXIS 12696 (5th Cir. June 23,
2011) (“an individual‟s right to recover
under Title VII cannot support a spouse‟s
loss of consortium claim.”)

29. One Biased Member of Seven
Member Panel Deprives Employee of
Due Process
• Sullivan v. Elsmere, No. 467, 2011 Del.
LEXIS 307 (Del. June 17, 2011) (holding
that the plaintiff‟s unrebutted testimony
that a panelist was biased, and the panel‟s
failure to disqualify the allegedly biased
panelist, deprived the employee of due
process)

30. EEOC’s Refusal to Identify the
Charging Party
• EEOC o/b/o Serrano, et al v. Cintas Corp.,
No. 04-40132, 2010 U.S. Dist. LEXIS
18130 (E.D. Mich. Mar. 2, 2010)
• EEOC v. CRST Van Expedited, Inc., 257
F.R.D. 513 (N.D. Iowa 2008)

31. EEOC Sanctioned for Failure to
Conciliate: Sanction is Dismissal
with Prejudice
• EEOC v. Bloomberg L.P., No. 07 Civ.
8383 (LAP), 2010 U.S. Dist. LEXIS 92511
(S.D.N.Y. Aug 31, 2010), summary
judgment granted in part and denied in
part by EEOC v. Bloomberg L.P., 751 F.
Supp. 2d 628 (S.D.N.Y. 2010)

32. Third Circuit Fines EEOC on a
“Fishing Expedition”
• EEOC v. Kronos, Inc., 620 F.3d 287 (3d
Cir. 2010)

33. Proposed Expert Testimony by
Sociologist on Gender Stereotyping
is Excluded
• EEOC v. Wal-Mart Stores, Inc., No. 6:01-
CV-339-KKC, 2010 U.S. Dist. LEXIS
13192 (E.D. Ky. Feb. 16, 2010)

34. Pregnancy Discrimination
Encompasses Fertility Treatment
• Govori v. Goat Fifty, L.L.C., No. 10 Civ.
8982 (DLC), 2011 U.S. Dist. LEXIS 33708
(S.D.N.Y. Mar. 30, 2011) (recognizing a
claim for sex-based discrimination under
Title VII where the plaintiff was terminated
after announcing her plans to undergo in
vitro fertilization.)

35. Application of Gross to Two
Unlawful Reasons
• Cross v. Clough, No. 04-1253 (RMC),
2010 U.S. Dist. LEXIS 22415 (D.D.C. Mar.
2010).

36. Application of Gross to
Federal Sector ADEA
• Ford v. Mabus, 629 F.3d 198 (D.C. Cir.
2010).

37. Application of Gross in Title
VII Retaliation Cases
• Hayes v. Sebelius, 762 F.Supp.2d 90
(D.D.C. 2011).

38. Retaliation: Does Accusing a Former
Employee of Stealing Trade Secrets
Constitute Retaliation?
• Hertz v. Luzanec Am., Inc., No. 04-cv-
01961-LTB-CBS, 2010 U.S. Dist. LEXIS
125351 (D. Colo. Nov. 29, 2010).

39. Constructive Discharge: Is
Deliberateness/Intent an Element Necessary
to Establish Constructive Discharge?
• Lisdahl v. Mayo Found., 633 F.3d 712 (8th
Cir. 2011).
• Trierweiler v. Wells Fargo Bank, 639 F.3d
456 (8th Cir. 2011).
• Miller v. Praxair, Inc., 408 Fed. Appx. 408
(2d Cir. 2010), cert. denied 2011 U.S.
LEXIS 4890 (June 27, 2011).
• Whitten v. Fred’s, Inc., 601 F.3d 231 (4th
Cir. 2010).

40. Offer of Judgment (Rule 68)
• Lima v. Newark Police Dept., 2011 U.S. App.
LEXIS 14741 (3rd Cir. July 19th, 2011)
• (Rule 68 offers of judgment necessarily
include “costs and attorneys fees either
explicitly or implicitly. When the costs are
stated explicitly… the offeror is not subjec to
any additional liability. When, however, the
offer of judgment is silent as to fees and
costs, they must be fixed by the court after
the offer of judgment is accepted.”)

41. Medical Marijauna and the ADA
• Roe v. Teletech Customer Care Mgmt.,
LLC, 2011 WASH. LEXIS 393 (June 9,
2011)
• Casias v. Wal-Mart Stores, Inc., 764
F.Supp.2d 914 (W.D. Mich. Feb. 11, 2011)

42. Do the Time Limitations of 706(e)(1)
Apply to Pattern or Practice Suits
Under 707?
• EEOC v. Kaplan Higher Educ. Corp., 2011
U.S. Dist. LEXIS 50035 (N.D. Ohio May 10,
2011) (Holding that time limitations apply to
707).
• EEOC v. L.A. Weight Loss, 509 F.Supp. 2d
527 (D.Md. 2007) (Holding time limitations do
not apply to 707); EEOC v. Sterling
Jewelers, Inc., 2010 U.S. Dist. LEXIS 649
(W.D.N.Y. Jan 6, 2010) (same).

43. 1985 and 1986 Conspiracy
Claims Against D.C.
• Bowie v. Maddox, 2011 U.S. App. LEXIS
12472 (D.C. Cir. 2011) (the Court
permitted plaintiff‟s section 1985(2) and
1986 conspiracy claims, based upon an
alleged conspiracy to prevent him from
testifying in support of a former FBI
colleague who had initiated a class action
on behalf of African-American agents, to
go forward.)

44. Abercrombie “Look Policy” Must
Accommodate Muslim Employee
Wearing Head Scarf
• EEOC v. Abercrombie & Fitch Stores, Inc.,
2011 U.S. Dist. LEXIS 77181 (M.D.Okla.
2011) (the District Court found an
Abercrombie Kids store liable for religious
discrimination because the store did not
hire a Muslim applicant who wore a head
scarf during a job interview)

45. Must a New Charge Be Filed When
Retaliation Occurs After Filing With
EEOC?
• Edlebeck v. Trondent Dev. Corp., 2011
U.S. Dist. LEXIS 24711 (N.D.Ill. Mar.
8, 2011) (holding no new charge need be
filed);
– Accord Swearnigen-El v. Cook Cnty. Sheriff’s
Dept., 602 F.3d 852, 864 n.9 (7th Cir. 2010)

46. Faragher/Ellerth Defense is Case-
Specific, Fact-Intensive Analysis Best
Left to Jury
• Aponte-Rivera v. DHL Solutions, Inc.,
2011 U.S. App. LEXIS 10507 (1st Cir. May
25, 2011) (the Court held that the
Faragher/Ellerth affirmative defense
should normally be decided by the jury.)

47. FLSA Preemption
• Walker v. Serv. Corp. Int’l, 2011 U.S. Dist.
LEXIS 39856 (W.D.Va. April 12, 2011)
(holding that employees may not bring
“state law wage claims where the state law
or contract upon which they rely is merely
as generous as the FLSA,” but that the
FLSA does not preempt claims based on
state laws or contracts that are more
generous that the FLSA.)

48. Customer Preference Not
Justification for Discrimination
• Chaney v. Plainfield Healthcare Ctr., 612
F.3d 908 (7th Cir. July 20, 2010) (the Court
held that anti-discrimination laws trump
patient preference regarding the race of
healthcare providers.)

49. Retaliation: Knowledge Requirement
Not Satisfied by General Corporate
Knowledge
• Henry v. Wyeth Pharmaceuticals, Inc., 616
F.3d 134 (2d Cir. Aug. 4, 2010) (the Court
reaffirmed its holding in Gordon v. N.Y.
City Board of Ed. 232 F.3d 111, 116 (2d
Cir. 2000) that general corporate
knowledge that the plaintiff has engaged in
a protected activity does not satisfy the
knowledge requirement.)

50. “Due Process” for Accused in
Harassment Cases
• “To push employers to immediate and draconian actions is to
dispense with any semblance of due process – to require
disciplining the accused upon mere accusation… no entity –
public or private – should be denied the leeway to sort out
right from wrong.”
– EEOC v. Xerxes Corp., 639 F.3d 658 (4th Cir. 2011), Wilkinson,
J. Concurring
• “I am still asking myself how so many editorialists, so many
great consciences, and, by the way, so many feminists could
take it as a given that the word of this woman – of whom we
knew only what filtered through the incomplete language of
justice – was necessarily infallible.”
– Bernard-Henri Levy, “5 Lessons of the DSK Affair”, The Daily
Beast, July 2, 2011