An update of key employment law developments in 2014 in the District of Columbia, Maryland, and Virginia written by veteran employment lawyer Robert B. Fitzpatrick, principal of Robert B. Fitzpatrick, PLLC.
2. THE INFORMATION CONTAINED HEREIN IS BASED UPON SOURCES BELIEVED TO BE
ACCURATE AND RELIABLE – INCLUDING SECONDARY SOURCES. DILIGENT EFFORT WAS
MADE TO ENSURE THE ACCURACY OF THESE MATERIALS, BUT THE AUTHOR ASSUMES
NO RESPONSIBILITY FOR ANY READER’S RELIANCE ON THEM AND ENCOURAGES
READERS TO VERIFY ALL ITEMS BY REVIEWING PRIMARY SOURCES WHERE APPROPRIATE
AND BY USING TRADITIONAL LEGAL RESEARCH TECHNIQUES TO ENSURE THAT THE
INFORMATION HAS NOT BEEN AFFECTED OR CHANGED BY RECENT DEVELOPMENTS.
THIS PAPER IS PRESENTED AS AN INFORMATIONAL SOURCE ONLY. IT IS INTENDED TO
ASSIST READERS AS A LEARNING AID; IT DOES NOT CONSTITUTE LEGAL, ACCOUNTING,
OR OTHER PROFESSIONAL ADVICE. IT IS NOT WRITTEN (NOR IS IT INTENDED TO BE
USED) FOR PURPOSES OF ASSISTING CLIENTS, NOR TO PROMOTE, MARKET, OR
RECOMMEND ANY TRANSACTION OR MATTER ADDRESSED; AND, GIVEN THE PURPOSE
OF THE PAPER, IT MAY OMIT DISCUSSION OF EXCEPTIONS, QUALIFICATIONS, OR
OTHER RELEVANT INFORMATION THAT MAY AFFECT ITS UTILITY IN ANY LEGAL
SITUATION. THIS PAPER DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP
BETWEEN 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OF THE LAW, INFORMATION CONTAINED IN THIS PAPER MAY BECOME OUTDATED.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
3. Robert (“Bob”) Brian Fitzpatrick is the principal in the law firm of Robert B. Fitzpatrick PLLC in Washington, D.C. where he
represents clients in employment law matters. Mr. Fitzpatrick has concentrated his practice in employment law disputes
for almost fifty years. He has represented clients in individual and class actions. He has represented clients in
employment discrimination, workplace harassment, retaliation, age discrimination, FMLA, ADA, whistleblower, wrongful
termination, non-compete, trade secrets, Computer Fraud and Abuse Act, and wage and hour claims, among others. He
counsels numerous executive clients regarding employment agreements and compensation issues. He has negotiated
literally thousands of severance agreements. He has represented clients in practically every industry and profession,
including government employees, employees in the hospitality industry, the high tech/computer, government
contractors, transportation, entertainment, sports, financial services, trade associations, academia, and others. He is
also a frequent speaker on employment law topics, and has written countless articles on employment law, a few of which
can be found on his website (http://www.robertbfitzpatrick.com/publishedarticles.html) and his blog, Fitzpatrick on
Employment Law (http://robertfitzpatrick.blogspot.com/). In addition to his law practice, he teaches mythology and
Shakespeare to elementary school students.
Prior to entering private practice, Mr. Fitzpatrick served as a staff attorney in the Jackson, Mississippi office of the
Lawyers’ Committee for Civil Rights Under Law in the late 1960’s; as a staff attorney in the Office of General Counsel of
the Equal Employment Opportunity Commission in the early 1970’s; and with the Washington Research Project (now the
Children’s Defense Fund – see http://www.childrensdefense.org/about-us/our-history/) training minority attorneys in
the Deep South to litigate employment discrimination cases. He has been in private practice in Washington, D.C. since
1970, having been born in Washington, D.C., and raised in neighboring Chevy Chase, Maryland. He attended
Georgetown Preparatory School in North Bethesda, and received his undergraduate and law degrees from the George
Washington University. He is the father of three and a grandfather of two. He is an avid hiker and kayaker. He is a Fellow
of the College of Labor & Employment Lawyers, having been inducted as a Fellow at the first annual induction ceremony
in 1996. He has been listed as one of The Best Lawyers in America® for at least 25 continuous years.
He is admitted to practice in all courts of the District of Columbia (Superior Court, D.C. Court of Appeals, and the Federal
District Court of the District of Columbia), the Federal District Court for Maryland, the Federal District Court for the
Northern District of Mississippi, the Supreme Court of the United States, the Federal Circuit, the Court of Federal Claims,
and the United States Courts of Appeals for the District of Columbia as well as the Fourth and Sixth Circuits.
4. In Hentosh v. Old Dominion Univ., 767 F.3d
413 (4th Cir. 2014) the Court found that
where a Professor had brought a Title VII case
against a public university alleging
discrimination and retaliation, the lower court
had subject matter jurisdiction to consider
the retaliation claim, but not the related
discrimination claim which it held to be
Duncan, Wynn, J.J., Childs, J. (sitting by
designation). Childs, J. wrote for the panel.
5. In Upshaw v. Consumer Prod. Safety Comm’n,
No. PWG-12-3130, 2014 U.S. Dist. LEXIS
64787 (D. Md. May 12, 2014), Judge Grimm
found that the time-limit for exhaustion of
administrative remedies was tolled.
6. In Taylor v. Peninsula Reg'l Med. Ctr., 3 F.
Supp. 3d 462 (D. Md. 2014) the Court
recognized that an intake questionnaire could
be considered a charge. Here, the EEOC had
lost the intake questionnaire, and the plaintiff
did not have a copy. After the date on which
plaintiff alleged he had submitted a charge to
EEOC it had sent a notice of filing of charge to
the defendant indicating that, during the
investigative process, a perfected charge would
be forwarded to the defendant.
7. In Schlottman v. Perez, 739 F.3d 21 (D.C. Cir. Jan. 3, 2014)
the Court addressed the application of the Savings Clause 5
U.S.C. § 7702(f) which holds that "[i]n any case in which an
employee is required to file any action...under this section
and the employee files the action...with an agency other than
the agency with which the action...is to be filed, the employee
shall be treated as having timely filed the action...as of the
date it is filed with the proper agency."
Here, Plaintiff timely filed with the wrong agency, but
untimely, according to the rules of the proper agency. The
Court found that the Savings Clause did not salvage Plaintiff's
claim as the Court found the Savings Clause measures
timeliness with respect to the deadlines for filing with the
Tatel, J., Williams, Randolph, S.J.J. Tatel, J. wrote for the
8. In Howard v. Pritzker, No. 12-5370, 2015
U.S. App. LEXIS 77 (D.C. Cir. Jan. 6, 2015),
the Court held that the six year limitations
period of 28 U.S.C.S. § 2401(a) did not
apply to discrimination claims filed by
federal employees under Title VII.
Rogers, Brown, J.J., Edwards, S.J. Rogers, J.
wrote for the panel.
9. In Niskey v. Johnson, No. 13-1269, 2014 U.S. Dist. LEXIS 137061
(D.D.C. Sept. 29, 2014), reconsideration denied, 2014 U.S. Dist.
LEXIS 149493 (D.D.C. Oct. 22, 2014), the Court, without taking a
position, alluded to the fact that some courts have held that
separate retaliation claims need not be exhausted if the scope of
the original investigation would have revealed them anyway,
citing Hairston v. Tapalla, 664 F. Supp. 2d 106, 115 (D.D.C.
2009) (collecting cases). The Court further stated that the
Hairston rationale applies only after a formal charge is filed, not
after a mere meeting with an EEO counselor, but citing as
contrary authority Pierce v. Mansfield, 530 F. Supp. 2d 146, 154
n.8 (D.D.C. 2008) which explained that “[t]he plaintiff…need not
exhaust his administrative remedies to bring a retaliation claim”
where the failure to exhaust stemmed from an untimely EEO
10. In Niskey v. Johnson, No. 13-1269, 2014 U.S. Dist. LEXIS
137061 (D.D.C. Sept. 29, 2014), reconsideration denied,
2014 U.S. Dist. LEXIS 149493 (D.D.C. Oct. 22, 2014), the
Court rejected Plaintiff’s argument that a letter to the
department’s General Counsel for labor and employment
was an adequate substitute for the first exhaustion
requirement because the requirement of initiating contact
with a Counselor is satisfied when an employee initiates
contact with an agency official logically connected with the
EEO process and exhibits an intent to begin the EEO
process. Johnson v. Peake, 634 F. Supp. 2d 27, 31 (D.D.C.
2009), reconsideration denied, Johnson v. Shinseki, 2011
U.S. Dist. LEXIS 105520 (D.D.C. Sept. 19, 2011).
11. In Wright v. Kent Cnty. Dept. of Soc. Servs.,
No. ELH-12-3593, 2014 U.S. Dist. LEXIS 9351
(D. Md. Jan. 24, 2014) the court found that a
failure to promote claim which plaintiff
argued arose from discriminatory conduct
alleged in her EEOC charge (e.g. poor
performance reviews) was not exhausted and
could not be pursued.
12. In WhosHere, Inc. v. Orun, No. 1:13-cv-
00526, 2014 U.S. Dist. LEXIS 22084 (E.D. Va.
Feb. 20, 2014) the Court granted plaintiff
permission to serve process on the defendant
located in Turkey by e-mail and via two social
networking sites - Facebook and LinkedIn.
13. In Barot v. Embassy of Zambia, 11 F. Supp. 3d
24 (D.D.C. 2014), reconsideration denied, 11
F. Supp. 3d 33, 2014 U.S. Dist. LEXIS 74930
(D.D.C. June 2, 2014) the Court, in dismissing
the complaint against the embassy, reiterated
the requirement of strict adherence to the
service of process rules for service on an
embassy under Section 1608 of the Foreign
Sovereign Immunities Act.
A. Jackson, J.
14. In Budik v. Ashley, No. 12-1949, 2014 U.S.
Dist. LEXIS 51083 (D.D.C. April 14, 2014),
aff’d, No. 14-5102, 2014 U.S. App. LEXIS
21460 (D.C. Cir. Nov. 12, 2014) the Court
refused to consider affidavits attached to
plaintiff’s memo in opposition as “[i]t is a
well-established principle of law in this
Circuit that [the plaintiffs] may not amend
[their] complaint by making new allegations
in [the] opposition brief.”
15. In District of Columbia v. Bamidele, 103 A.3d
516 (D.C. 2014), the Court held that the
plaintiffs gave adequate notice of their claims
in accordance with D.C. Code § 12-309.
Further, the Court held that the “off duty”
police officers did not act within the scope of
Fisher, Mcleese, J.J., Reid, S.J. Fisher, J. wrote
for the panel. Reid, S.J. concurred in part,
dissented in part.
16. In Williams v. Johnson, No. 12-7074, 2015
U.S. App. LEXIS 690 (D.C. Cir. Jan. 16, 2015),
the Court found that the repeal of the § 12-
309 notice requirement as to D.C. WPA claims
Kavanaugh, J., Ginsburg, Edwards, S.J.J.
Ginsburg, S.J. wrote for the panel.
17. The Human Rights Amendments Act of 2014, Bill
No. 20-803, was enacted by the City Council
December 2, 2014. The bill was transmitted to
the Mayor on January 12, 2015, whose response
is due by January 27, 2015. This legislation
clarifies that the municipal notice requirement
does not apply to claims under the D.C. Human
Rights Act against D.C. government agencies. In
light of the D.C. Circuit’s decision in Williams v.
Johnson, No. 12-7074, 2015 U.S. App. LEXIS 690
(D.C. Cir. Jan. 16, 2015) the issue of retroactivity
may be resolved in favor of employees.
18. In Morgan v. City of Rockville, No. 13-1394,
2014 U.S. Dist. LEXIS 151828 (D. Md. Oct. 28,
2014) the Court in an employment
discrimination case, denied the plaintiff’s
motion to compel the employer to produce an
investigative report prepared by an outside
19. In In re Kellogg, Brown & Root, Inc., 756 F.3d
754 (D.C. Cir. June 27, 2014), the D.C. Circuit
issued a writ of mandamus effectively
reversing United States ex rel. Barko v.
Halliburton Co., No. 1:05-cv-1276, 2014 U.S.
Dist. LEXIS 36490 (D.D.C. March 11, 2014)
(Gwin, J.), petition for writ of certiorari filed
November 25, 2014.
Griffith, Kavanaugh, Srinivasan, J.J.
Kavanaugh, J. wrote for the panel.
20. In Burke v. Doe, 91 A.3d 1031 (D.C. 2014), the D.C. Court of
Appeals addressed the D.C. Anti-SLAPP Act for the first time. The
plaintiff, an attorney, filed a subpoena seeking the identifying
information of an anonymous speaker who had posted information
about her on Wikipedia. The anonymous speaker filed a motion to
quash, which the D.C. Superior Court denied. The anonymous
speaker appealed. The Court of Appeals held that denial of a special
motion to quash under the statute may be immediately appealed to
the Court of Appeals. The Court ultimately held that the Superior
Court incorrectly denied the special motion to quash, as the speech
in question established a prima facie showing of protection under
the statute, which the attorney, a limited-purpose public figure,
could not rebut via a showing of sufficient likelihood of success on
her underlying claim of defamation.
Easterly, J., Schwelb, Farrell, S.J.J. Easterly, J. wrote for the panel.
21. C4ADS v. Kaalbye, No. 14-2273 (D.C. Super. Ct.)
(not yet decided). The instant dispute between the
parties centers around information which the
Center for Advanced Defense Studies (C4ADS)
published about Kaalbye Shipping International’s
purported wrongdoing with regards to its shipment
of military equipment, as well as its safety and
business practices. Kaalbye brought a claim for
defamation, which C4ADS is seeking to dismiss
under the D.C. Anti-SLAPP statute.
22. In Forras v. Rauf, No. 12-00282, 2014 U.S. Dist. LEXIS 53960
(D.D.C. April 18, 2014), the plaintiffs sued for defamation, false
light, assault, and intentional infliction of emotional distress
against defendants seeking to construct an Islamic community
center near Ground Zero in New York City. The court held that
statements by the defendants in their motion to dismiss, which,
among other things, called the lead plaintiff a bigot and his
attorney a “publicity hound”, were protected by the judicial
proceedings privilege. The Court also held that the defendants
were entitled to dismissal under the D.C. Anti-SLAPP Act, as the
defendants were acting in furtherance of the right of advocacy on
issues of public interest, and the plaintiffs failed to demonstrate
a likelihood of success on his claims.
23. In Boley v. Atl. Monthly Group, 950 F. Supp. 2d 249 (D.D.C.
2013), a Liberian official sued a writer for defamation, in
connection with magazine articles written about the official’s
arrest, investigation, and charging. The Court held (a) that
the D.C. Anti-SLAPP Act’s special motion to dismiss
provisions applied in federal proceedings where jurisdiction is
based on diversity; (b) that the statements were protected by
the fair report privilege; (c) the writer’s characterization of the
official as “evil” was protected by the First Amendment as
imaginative expression and hyperbole; and (d) the official was
a limited purpose public figure, and there was no indication
that a statement calling him a “warlord” was false or made
with actual malice.
24. In Abbas v. Foreign Policy Group, 975 F. Supp. 2d 1 (D.D.C. 2013),
an author of a magazine article wrote about whether the sons of the
Palestinian president had enriched themselves at the expense of
Palestinians and U.S. taxpayers. A Palestinian business owner sued
the writer for defamation. The court granted the defendant’s motion
to dismiss under the D.C. Anti-SLAPP Act, on the grounds that (a)
the subject matter of the article was fundamentally a matter of
public interest; (b) the business owner failed to show likelihood of
prevailing on the merits of his claim, because the questions posed
by the article were opinions and protected by the First Amendment;
and (c) the article’s statements about the Palestinian president did
not concern the plaintiff, and were not actionable by him.
Argued before the D.C. Circuit on October 20, 2014. See Abbas v.
Foreign Policy Group, LLC, No. 13-7171 (D.C. Cir. 2014).
25. In Song Fi, Inc. v. Google, Inc., No. 14-1283,
2014 U.S. Dist. LEXIS 153436 (D.D.C. October
29, 2014) the Court enforced the forum
selection clause set forth in YouTube.com’s
Terms of Service.
26. In Sharp v. Wash. Hosp. Ctr. Corp., 2013 CA
006216, 2014 D.C. Super. LEXIS 10 (D.C.
Super. Ct. Jan. 29, 2014) the Court permitted
informal ex-parte communications between
plaintiff’s treating physicians and defense
counsel, and to divulge health information
relevant to the plaintiff’s alleged injuries that
would otherwise be protected by the
physician-patient privilege and/or HIPAA.
27. In United States ex rel. Barko v. Halliburton Co., No. 1:05-
cv-1276, 2014 U.S. Dist. LEXIS 162680 (D.D.C. Nov. 20,
2014) the Court held that litigation hold notices sent by
the CEO to “large groups of employees.” The Court found
that “[the notices] can fairly be said to merely describe
KBR’s document retention practices, rather than relate any
attorney preparations for litigation” and “[t]his is simply
not the type of [attorney work product] that is intended to
be protected by the privilege…where companies have a
duty to preserve electronic documents.” The Court held
that “[a]n attorney cannot complain that his preparations
for trial have been unfairly affected by his opponent
receiving information about document retention practices
to which he is entitled.”
28. In Oguntoye v. Medstar Georgetown Univ. Hosp., No. 2013 CA
005054 B (D.C. Super. May 6, 2014) (unpub.) the Court found
that a alleging discrimination and defamation could not gain
discovery regarding written and oral statements made by her
former employer to a potential employer because those
statements were protected by the “Peer Review” privilege in D.C.
Code § 44-801 et seq. While noting that plaintiff “has a right to
the minutes and reports of a peer review body…for the limited
purpose of adjudicating the appropriateness of an adverse
action” the court nevertheless denied discovery because
“[p]laintiff seeks this evidence for the broader purposes of
adjudicating her claims of defamation…and race discrimination
under the D.C. Human Rights Act.”
Contact me at email@example.com if you want a copy of
this unpublished decision.
29. In Hosch v. BAE Sys. Information Solutions, Inc.,
No. 1:13-cv-00825, 2014 U.S. Dist. LEXIS 57398
(E.D. Va. April 24, 2014), the Court found that
plaintiff, after he decided to sue the employer,
engaged in the willful and intentional spoliation
of evidence, leading to dismissal with prejudice.
This decision adopted the sanctions proposed by
Magistrate Judge Buchanan in Hosch v. BAE Sys.
Information Solutions, Inc., No. 1:13-cv-825,
2014 U.S. Dist. LEXIS 57574 (E.D. Va. Jan. 22,
30. In Ward v. McDonald, 762 F.3d 24 (D.C. Cir. 2014) the
majority found that the plaintiff could not maintain a
suit for disability discrimination after determining
that she had resigned and failed to provide her
employer with information it had requested as part
off the interactive process. The dissent split sharply,
criticizing the employer for “needlessly prolonging”
the interactive process with irrelevant inquiries, and
finding that plaintiff had no obligation to tolerate
further delays, especially in light of the fact that
further delay “was literally endangering her life.”
Henderson, Millett, J.J., Randolph, S.J. Henderson, J.
wrote for the panel. Millett, J., dissented.
31. In Solomon v. Vilsack, 763 F.3d 1 (D.C. Cir.
2014) the Court also noted that the plaintiff,
who had taken a disability-related retirement,
was not prevented from pursuing a disability
discrimination claim because her retirement
application “never stated that she would have
been unable to work if she had been afforded
the accommodations she sought.”
Henderson, Millett, J.J., Ginsburg, S.J. Millett,
J. wrote for the panel.
32. In Summers v. Altarum Inst., 740 F.3d 325
(4th Cir. 2014) the Fourth Circuit held that
Congress intended to cover temporary
disabilities under the ADA, thus permitting
the plaintiff, who had been injured while
exiting a commuter train on the way to work,
to proceed with his ADA case.
Motz, Agee, Diaz, J.J. Motz, J. wrote for the
33. In Solomon v. Vilsack, 763 F.3d 1 (D.C. Cir.
2014) the Court rejected defendant’s
argument that a flexible work schedule was
not, as a matter of law, a reasonable
Henderson, Millett, J.J., Ginsburg, S.J. Millett,
J. wrote for the panel.
34. In Bellofatto v. Red Robin Int'l, Inc., No. 7:14-
cv-00167, 2014 U.S. Dist. LEXIS 177341 (W.D.
Va. Dec. 24, 2014) the Court found that a
restaurant server with type one diabetes had
properly alleged failure to accommodate and
retaliation claims under the ADA where she had
alleged that the restaurant failed to keep its
commitment to allow her to take short breaks
to eat or drink something to regulate her
blood-sugar levels. She alleged that such
breaks were frequently denied and that when
she complained to HR, her hours were reduced.
35. In Hancock v. Wash. Hosp. Ctr., 13 F. Supp. 3d 1 (D.D.C. 2014), the
plaintiff, a medical assistant, alleged that Washington Hospital
Center (WHC) failed to accommodate her disabling nerve conditions.
The Court held that she was not entitled to judgment as a matter of
law, as she was medically restricted from performing triage, and
therefore a reasonably jury could find that she is not a qualified
individual and that the requested accommodation of no triage was
unreasonable. The parties stipulated that triage was an essential
function of the job. But, the plaintiff argued that WHC had “waived”
the essential function argument by allowing her to work on modified
duty with no triage responsibilities for a period of time. The Court
disagreed, reasoning that an employer temporarily allowing an
employee to not perform an essential job function does not
irrevocably waive that issue forever.
36. In EEOC v. Howard Univ., No. 12-1186, 2014 U.S. Dist. LEXIS
138036 (D.D.C. Sept. 30, 2014) the Court addressed a claim
by the defense that a job applicant for a security guard
position was unable, due to dialysis treatments, to work a
flexible three-shift schedule which, it claimed, was an
essential function. Here, the written vacancy announcement
stated that a "minimum requirement" was than an applicant
"be able to work nights, weekends, and holidays" as well as
rotating day and evening shifts, as assigned. When the
applicant stated during an interview that he received dialysis
treatment every Monday, Wednesday and Friday before noon,
the employer abruptly concluded the job interview. Judge
Jackson addressed whether the employer had met its burden
to establish an essential function, and whether the record
reflected, in a summary judgment context, that the job
applicant was unable to perform the essential function. Upon
analysis, Judge Jackson denied summary judgment.
A. Jackson, J.
37. In McNair v. District of Columbia, 11 F. Supp.
3d 10 (D.D.C. 2014) the Court held that,
upon an employer’s receipt of a request for
accommodation “[t]he interactive process
begins” and “both the employer and the
employee have a duty to act in good faith” to
“identify the precise limitations resulting from
the disability and potential reasonable
accommodations which could overcome those
38. In Hill v. Associates for Renewal in Educ., Inc.,
No. 12-0823, 2014 U.S. Dist. LEXIS 137054
(D.D.C. Sept. 29, 2014) the Court, on cross-
motions for summary judgment, found that
whether plaintiff actually made a request for
an accommodation was a credibility question
that was not appropriate for decision on
39. In Cruz v. Maypa, 773 F.3d 138 (4th Cir. 2014) the
Court held that that the failure to post the required
FLSA notice tolled the statute of limitations. The
plaintiff was from the Philippines and spoke
Tagalog. The defense argued that posting of the
notice would have been futile because the poster
provided by the Wage and Hour division is not
available in Tagalog. In response, the Court stated
"Besides being offensive, this argument turned on a
factual issue which must be construed in Cruz's
favor...Cruz has not alleged that she speaks no
English, only that her English is limited.
Furthermore, this argument would lead to the
absurd result of affording fewer protections to
non-English speaking employees.“
Gregory, Agee, Keenan, J.J. Gregory, J. wrote for
40. In Martin v. Wood, 772 F.3d 192 (4th Cir.
Nov. 18, 2014), the Fourth Circuit dismissed,
on Eleventh Amendment grounds, an FLSA
suit brought by an employee against
supervisors in their individual capacities of a
state-operated hospital for allegedly
improperly refusing to authorize overtime for
hours worked in excess of a forty-hour week.
Niemeyer, Duncan, Thacker, J.J. Niemeyer, J.
wrote for the panel.
41. In Barton v. House of Raeford Farms, 745 F.3d 95
(4th Cir. 2014), the Court held that the plaintiff’s
claims under a state wage law were preempted by
the Labor Management Relations Act, because their
disputes about pay were essentially a disagreement
as to how to calculate their “hours worked” under a
collective bargaining agreement.
Niemeyer, King, Agee, J.J. Niemeyer, J. wrote for
the panel. King, J. concurred in part, dissented in
42. In Mock v. Fed. Home Loan Mortg. Corp., No. 1:13-cv-01292,
2014 U.S. Dist. LEXIS 97259 (E.D. Va. July 15, 2014), aff’d,
No. 14-1782, 2014 U.S. App. LEXIS 24569 (4th Cir. Dec. 30,
2014), the plaintiff, an Engineering Senior and Engineering
Tech Lead, claimed that he had been improperly and willfully
classified as exempt under the FLSA. The Court granted the
employer’s motion for summary judgment, on the bases that
the plaintiff is a highly compensated employee who performs
non-manual work, and that he also qualified for the
administrative employee and computer professional
exemptions under the FLSA.
43. In Hughes-Smith v. Crown Linen Serv., Inc.,
No. 1:13-cv-1048, 2014 U.S. Dist. LEXIS
28415 (E.D. Va. March 5, 2014) the Court
approved the employer's policy whereby it
rounded down employee time from one to
seven minutes and rounded up employee
time from eight to fourteen minutes. The
employer tracked hours in fifteen minute
44. In Dixon v. Prospect Mrtg., LLC, 11 F. Supp. 3d 605
(E.D. Va. 2014), plaintiff, a mortgage loan officer,
claimed that she had been misclassified as an
exempt employee under the FLSA. The court
granted the employer’s motion for summary
judgment, on the grounds that the plaintiff was
exempt under the “outside sales exemption”, which
applies to employees engaged “in the capacity of
45. In Martin v. U.S., 117 Fed. Cl. 611 (2014) the Court
addressed the Federal Government's partial
shutdown which lasted from October 1 through
October 16, 2013, resulting in a five-day delay in
paying some federal workers. The issue before the
Court was whether such a short delay in the
payment of wages could nonetheless give rise to an
FLSA claim for failure to timely pay non-exempt
employees. The Court, applying the Supreme
Court's "On Time" mandate found in Brooklyn
Savings Bank v. O'Neil, 324 U.S. 697, 707 (1945)
declined to adopt the government's proposed
"totality of the circumstances" test and instead held
that "timely payment was the usual rule."
46. In Abbey v. United States, 745 F.3d 1363
(Fed. Cir. 2014) the plaintiffs pursued an FLSA
claim in the Court of Federal Claims, invoking
the Court's jurisdiction under the Tucker Act.
Taranto, O’Malley, Wallach, J.J. Taranto, J.
wrote for the panel. O’Malley, J. concurred in
part, dissented in part.
47. In Lafleur v. Dollar Tree Stores, Inc., No. 2:12-cv-
00363, 2014 U.S. Dist. LEXIS 69886 (E.D. Va. May
20, 2014) the Court reaffirmed its denial of
defendant’s motion to decertify the collective
action which it had certified under the FLSA.
Among other reasons, the Court indicated that
the decision of the Fourth Circuit in Monahan v.
Cnty. of Chesterfield, 95 F.3d 1263 (4th Cir.
1996) was distinguishable because Monahan
does not deal with the similarly situated standard
for collective action certification.
R. Jackson, J.
48. In Marshall v. Safeway, Inc., 88 A.3d 735 (Md.
2014), the Court held that where an employer
made an unauthorized deduction to
employees’ pay, it was not paying all the
compensation that was due to the employees,
which constituted a violation of the Maryland
Wage Payment and Collection Law.
Wilner, J. (ret., specially assigned) wrote for
the Court. McDonald, J. concurred separately.
Adkins, J. concurred in part, dissented in part.
49. On September 19, 2014 the Mayor signed the
D.C. Wage Theft Prevention Act, B20-0671, which
is projected to go into effect, following
congressional review, on February 26, 2015.
Among its provisions, the Act requires employer
notices (and allows for tolling of the SoL in their
absence), permits class actions, amends the D.C.
Wage Payment & Collection law to cover white
collar, executive, and professional employees
previously excluded, and provides that fee
awards “shall” be made using adjusted Laffey
50. In Peters v. Early Healthcare Giver, Inc., 97 A.3d 621 (Md.
2014) the Court address enhanced damages where the
Employer failed to pay overtime, which the Court
characterized as "Wage Theft". First, the Court rejected the
employee's argument that there should be a presumption in
favor of granting enhanced damages. Next, the Court
addressed whether there was a basis for a legitimate, bona
fide, dispute, stating that an incorrect legal belief may form
the basis for a legitimate, bona fide, dispute. When asked to
establish guiding principals that the trial courts should follow
when exercising their discretion as to whether, and in what
amount, to award enhanced damages, the court's solution
was to simply say that "the trial courts are encouraged to
consider the remedial purpose of the MWPCL when deciding
whether to award enhanced damages to employees.” Finally,
the Court affirmed that the WPCL contemplates a maximum
award of three times the unpaid wage, not three times the
unpaid wage in addition to recovery the unpaid wages.
Adkins, J., wrote for the Court.
51. In Hamden v. Total Car Franchising Corp.,
548 Fed. Appx. 842 (4th Cir. 2013) the Court
held that contractual language, looking at the
contract as a whole, did not encompass the
"expiration" of the contract, that is, its natural
ending, and thus the non-compete provision
was not enforceable, whereas the non-
disclosure provision was applicable in
Niemeyer, Gregory, Floyd, J.J. Gregory, J.
wrote for the panel.
52. In Telogis, Inc. v. Insight Mobile Data, Inc., No. PWG-14-563,
2014 U.S. Dist. LEXIS 175270 (D. Md. Dec. 19, 2014), the
plaintiff and the lead defendant are competing companies.
The plaintiff claimed that the lead defendant targeted several
of the plaintiff’s employees who were privy to sensitive,
confidential, and proprietary information, and who were
subject to non-compete agreements. The plaintiff further
claimed that those former employees, with encouragement
from the lead defendant, violated their non-compete
agreements. The Court denied the defendants’ motion to
dismiss, on the grounds that the plaintff had stated plausible
claims for misappropriation, tortious interference with
contractual relations, and unfair competition.
53. In Atwood v. CertainTeed Corp., No. 1:13-cv-1006, 2014 U.S. Dist.
LEXIS 29183 (E.D. Va. March 5, 2014), aff’d No. 14-1407, 2014 U.S.
App. LEXIS 23134 (4th Cir. Dec. 9, 2014) (per curiam), the plaintiff, a
roofer, entered into a non-disclosure agreement with a
manufacturer of roofs and other building products, in connection
with a roofing concept that the plaintiff had developed. When the
company later applied for a patent which the plaintiff claimed was
based on his concept, and allegedly used the concept to use,
develop, and sell new roofing projects, the Plaintiff sued, claiming a
violation of the Virginia Uniform Trade Secrets Act. The Court
granted the defendants’ motion for summary judgment, on the
grounds that the concept had previously been disclosed, and thus
was not secret or confidential when disclosed to the company, and
not a protectable trade secret.
54. In Nicklas Assocs. v. Zimet, No. GJH-14-3777, 2014 U.S.
Dist. LEXIS 170071 (D. Md. Dec. 9, 2014) the plaintiff-
employer sued the defendant-employee for violating a
non-compete requiring that the employee not place
employees in creative and marketing communications.
The competitive activity was the employee’s decision to
update a LinkedIn profile to state that she was a “creative
recruiter”. Here, the Court dismissed the employer’s suit
because it found that it had failed to show that it had lost
any business as a result of the employee’s allegedly
competitive activity and, therefore, could not demonstrate
irreparable harm. The Court did not determine whether
updating a LinkedIn profile was competitive activity.
55. In LaPointe v. Sigma Tau Pharms., Inc., 2013 Md.
Cir. Ct. LEXIS 9 (Md. Cir. Ct. Sept. 11, 2013) the
Court found that, although the “unity of interest”
doctrine applies to prevent a parent corporation
from being sued for tortiously interfering in a
contract between a subsidiary and an employee,
that this privilege was “not absolute”. The
privilege did not apply where the parent acted
against the interests of its subsidiary, or
interfered using wrongful means. Here, a fact
issue on the latter of these prongs prevented
summary judgment in favor of the defendant.
56. In Endosurg Med., Inc. v. Endomaster Med., Inc., No. GJH-14-2827, 2014
U.S. Dist. LEXIS 175442 (D. Md. Dec. 19, 2014), one of the plaintiff
company’s employees resigned, started a competing business, and hired
several of the plaintiff’s employees. The company sued the competing
company and the former employees, asserting breach of contract, tortious
interference, and a number of other claims. The Court granted in part and
denied in part the defendants’ motion to dismiss, dismissing some claims
but allowing others to proceed. The breach of contract claim, based upon
purported violation of a confidentiality agreement through use of plaintiff’s
customer information, was dismissed. The court reasoned that “[c]ontacting
or advertising to a former employer’s customers, without more, fails to
demonstrate the use of confidential information,” that the pool of potential
clients in this particular context was well known, and that the evidence
demonstrated that the customers contacted were identified and reached
through independent means.
57. In Higbie v. U.S. No. 2014-5042, 2015 U.S. App. LEXIS 541
(Fed. Cir. Jan. 14, 2015) the Court addressed whether a claim
for breach of a confidentiality clause in an ADR agreement
was a "money-mandating" claim cognizable under the Tucker
Act and, if for more than $10,000.00, properly in the Court of
Federal Claims. The majority held that the confidentiality
clause at issue here could not give rise to a claim for
damages. Judge Taranto, dissenting, cited a litany of cases
holding that such clauses can give rise to claims for damages.
Reyna & Lourie, Taranto, J.J. Reyna, J. wrote for the panel.
Taranto, J. dissented.
58. In White v. Am. Inst. of CPAs, No. 2013 CA 002623 B
(D.C. Super. Ct. April 7, 2014) (unreported) the
employer and plaintiff's supervisor, now in retirement,
had entered into a confidentiality agreement which
penalized the former supervisor for speaking about
matters related to his termination from the defendant-
employer. When defendant-employer sought to enforce
the confidentiality clause to prevent the former
supervisor from testifying in plaintiff's age
discrimination and retaliation case, the Court enjoined
the employer from enforcing the confidentiality
agreement with the former supervisor in the event that
the former supervisor chose to speak with and provide
relevant information to counsel regarding plaintiff's
E-mail me at firstname.lastname@example.org for a copy of
this unreported opinion.
59. In Bereston v. United Health Servs., Inc., No. 2014
CA 000416 B (D.C. Super. Aug. 21, 2014)
(unpub.) the Court found that the plaintiff could
not maintain a cause of action for wrongful
termination when she attempted to bring the
defendant-employer into compliance with its
legal obligations because “none of [the
requirements] imposed a distinct legal obligation
on her to institute such changes.” (emphasis in
Contact me at email@example.com if you
want a copy of this unpublished decision.
60. In Freeman v. Dal-Tile Corp., 750 F.3d 413 (4th
Cir. 2014), the court denied the employer’s motion
for summary judgment in a Title VII and Section
1981 race and gender hostile work environment
case, because there was a triable issue of fact as to
whether the employee was repeatedly subjected to
unwelcome statements and conduct that created an
abusive atmosphere, of which the employer should
have known, but to which the employer failed to
Shedd, Traxler, Niemeyer, J.J. Shedd, J. wrote for
the panel. Niemeyer, J., concurred in part,
dissented in part.
61. In Boyer-Liberto v. Fontainebleau, 752 F.3d 350 (4th Cir.
2014) (petition for review en banc granted No. 13-1473,
2014 U.S. App. LEXIS 12711 (4th Cir. July 1, 2014)), the
Court held that a co-worker’s use of the epithet “Porch
Monkey” was not so severe or pervasive as to amount to a
racially hostile work environment. The Court also held,
adhering to Jordan v. Alternative Resources Corp., 458
F.3d 332 (4th Cir. 2006) that Plaintiff could not have
reasonably believed that Defendant’s conduct was
unlawful and thus the plaintiff did not engage in protected
activity, thus not fulfilling that element of a retaliation
claim. The latter issue is pending en banc.
Traxler, C.J., Niemeyer, Shedd, J.J. Niemeyer, J. wrote for
the panel. Shedd, J. concurred separately. Traxler, C.J.
concurred in part, dissented in part.
62. In Brooks v. Grundmann, 748 F.3d 1273 (D.C. Cir.
2014), the Court held that the employee failed to
establish a hostile work environment claim under
Title VII, because she was unable to show that her
supervisors’ actions were sufficiently severe or
pervasive. The Court held that selective
enforcement of a time and attendance policy did
not necessarily rise to a hostile work environment,
and the plaintiff’s performance reviews were not
Brown, Srinivasan, J.J., Wiliams, S.J. Brown, J. wrote
for the panel.
63. In District of Columbia v. DOL, Nos. 13-0730,
0737, 2014 U.S. Dist. LEXIS 43194 (D.D.C. March
31, 2014) the Court held that the Davis-Bacon
Act did not apply to a privately-funded
development of privately-maintained buildings to
be occupied by private citizens and businesses.
In so holding, the Court reversed the decision of
DOL’s Administrative Review Board (“ARB”).
A. Jackson, J.
George C. Leef, “Prevailing Wage Laws: Public
Interest or Special Interest Legislation?” Cato
Journal, Vol. 30, No. 1 (Winter 2010)
64. In Castro v. Fid. and Deposit Co. of Md., No. 13-818,
2014 U.S. Dist. LEXIS 50904 (D.D.C. 2014), the Court
held that the plaintiffs, laborers for a sub-
subcontractor, in the construction of a District of
Columbia building stated a claim under the Davis-
Bacon Act in an effort to collect against the prime
contractor’s construction bond, which was secured
pursuant to the District of Columbia’s “Little Miller”
Act. Defendant insurance companies, who had
guaranteed the bond as co-sureties, argued that the
plaintiffs were ineligible to sue on the bond and, in
any event, had failed to comply with the one-year
statute of limitations.
65. In McCaskill v. Gallaudet Univ., No. 13-1498, 2014 U.S. Dist.
LEXIS 50934 (D.D.C. April 14, 2014), the Court granted
Gallaudet’s motion to dismiss the plaintiff’s intentional
discrimination claim under the D.C. Human Rights Act. The
plaintiff had alleged that her employer, Gallaudet, had
discriminated against her because of her signing a Maryland
petition to place a constitutional amendment banning same
sex marriage on the ballot, and not based on her membership
in any group. The court ruled that the employee’s signing of
the petition was not protected activity under the Human
66. In United States ex rel. Badr v. Triple Canopy,
Inc., Nos. 13-2190, 2191, 2015 U.S. App. LEXIS
277 (4th Cir. Jan. 8, 2015) the Court reiterated
its acceptance of the implied certification
theory of FCA, finding that an allegation of
non-compliance with a requirement that
security guards in Iraq meet certain
marksmanship requirements, pled a FCA claim,
even though the task-order/contract did not
specifically condition payment on compliance
with that requirement.
Shedd, Agee, Wynne, J.J. Shedd, J. wrote for the
67. In United States ex rel. Folliard v. Gov't
Acquisitions, Inc. & Govplace, 764 F.3d 19
(D.C. Cir. 2014) the Court rejected an FCA
claim where the contractor relied on
assurances of its suppliers of compliance.
Kavanaugh, Wilkins, J.J., Silberman, S.J.
Wilkins, J. wrote for the panel.
68. In United States ex rel. Oberg v. Pa. Higher Educ. Assistance
Agency, 745 F.3d 131 (4th Cir. 2014), the relator claimed that
student loan corporations violated the FCA. The Court held
that the relator had alleged sufficient facts to demonstrate
that the Pennsylvania Higher Education Assistance Agency
was not a arm of the state, in part due to the fact that state
law expressly provided that obligations of that organization
would not be binding on the state.
Traxler, C.J., Motz, Keenan, J.J. Motz, J. wrote for the panel.
Traxler, C.J. concurred in part, dissented in part.
69. In Pitts v. Howard Univ., 13 F. Supp. 3d 14 (D.D.C. 2014) the
plaintiff, who had worked for Howard University in various
finance-related roles, claims that he had complained about
various tax and fraud issues, and that the university
transferred him to a lesser position with significantly
diminished responsibilities. The Court denied Howard’s
motion to dismiss, which had argued that the plaintiff had
not sufficiently pled either a protected activity nor an adverse
employment action under the FCA’s discrimination and
70. In United States ex rel. Saunders v. Unisys Corp.,
No.1:12-cv-00379, 2014 U.S. Dist. LEXIS 37830
(E.D. Va. March 21, 2014), the Court held that the
relator’s FCA claim was not barred by the public
disclosure bar, because the defendant contractor’s
reports to the DOD IG’s office were not made
public, and while they revealed improper time-
billing practices, they did not disclose instances of
71. In Jackson v. Nattrass, No. 3:13-cv-535, 2014 U.S. Dist. LEXIS
100567 (E.D. Va. June 25, 2014) , adopted by, objection
overruled by, summary judgment granted by, case dismissed
by, 2014 U.S. Dist. LEXIS 100491 (E.D. Va. July 22, 2014), the
Court granted summary judgment in favor of the employer.
The Court found that the plaintiff had not engaged in
protected activity, as her alleged opposition was based on a
single allegedly sexually explicit conversation in her
presence, and where the evidence did not establish that the
employee ever affirmatively complained about that
conversation to either the defendant or to the person who
allegedly made the inappropriate statement.
72. In Kearns v. Northrop Grumman Sys. Corp., No. ELH-11-
1736, 2014 U.S. Dist. LEXIS 70881 (D. Md. May 23, 2014), the
Court granted Northrop’s motion for summary judgment,
thus dismissing the plaintiff’s claims of age discrimination,
hostile work environment, and retaliation. The alleged
protected activity was based upon an email exchange in
which the plaintiff participated, and which discussed matters
relevant to the execution and direction of server log
monitoring, and when discussions about that topic had taken
place. The Court found that the plaintiff could not have had
an objectively reasonable belief that he was opposing
unlawful activity in that email exchange.
73. In Davis v. Billington, No. 10-00036, 2014 U.S. Dist. LEXIS
86271 (D.D.C. June 25, 2014), the plaintiff claimed that the
Librarian of Congress had violated his First and Fifth
Amendment constitutional rights, by terminating him in
connection with an opinion piece that he caused to be
published in the Wall Street Journal. In considering, and
granting in part and denying in part the defendants’ motion
to dismiss on jurisdictional grounds, the Court considered
jurisdictional questions, such as whether the Civil Service
Reform Act of 1978 precludes judicial review of the plaintiff’s
constitutional claims, and what damages the Court had
jurisdiction to award.
74. In Hardy v. Hamburg, No. 11-1739, 2014 U.S. Dist.
LEXIS 133274 (D.D.C. Sept. 23, 2014), the
plaintiff’s, current and former employees of the
FDA, claimed that the FDA and other government
agencies and officials had violated their First,
Fourth, and Fifth Amendment rights. On
consideration of the defendants’ motion to dismiss
for lack of subject matter jurisdiction, the court
dismissed all of the claims without prejudice, after
a consideration of whether the Civil Service Reform
Act of 1978 precluded the claims.
75. In Anthony v. Verizon Va., Inc., No. 130681,
758 S.E.2d 527 (Va. 2014), a divided Virginia
Supreme Court held that the lower court
erred In holding that the employees’ claims
were completely preempted by § 301 of the
Lemons, J. wrote for the panel. McClanahan,
J. concurred in part, dissented in part.
Powell, J., concurred in part, dissented in
76. In Shell v. Rock Creek Nursing Ctr., Inc., No. 12 CA 8632, 2014
D.C. Super. LEXIS 3 (D.C. Super. Ct. Feb. 6, 2014) the Superior
Court included that the Collateral Source Rule permits the
Plaintiff to seek damages for the full amount billed by the
hospital, including the amount written off by the hospital
“pursuant to the Medicare reimbursement formula.” The Court
explained that the collateral source rule permits the plaintiff to
seek damages for the full amount billed because “the Medicare
program is administered by the Federal Government and is
wholly independent of the defendants in this case.”
In so holding, the Court stated that it was not expressing any
view concerning the related evidentiary question of whether the
defendants will be permitted to challenge the fairness and
reasonableness of the initial bills through the presentation of
evidence of the actual amount accepted by the hospital as
payment in full.
77. In Providence Hosp., Inc. v. Willis, 103 A.3d
533 (D.C. 2014), a tort / negligence case
brought by a patient against a hospital, the
court rejected the plaintiff’s claim that the
judge’s refusal to give a “special
susceptibility” instruction was error, and that
the damages award was inadequate as a
result of that error.
Blackburne-Rigsby, Easterly, J.J., Farrell, S.J.
78. In Chucker v. Berger, [CITE] (Jan. 6/7 2015) (D.C.
2015), the Court rejected a challenge to Colston in
which the doctor-defendant requested the Court to
overrule it. A panel of the Court summarily affirmed,
and quite recently denied a petition for rehearing en
banc. The Colston argument is a rhetorical device
used by plaintiffs’ counsel in summation on the issue
of pain and suffering. In Colston, the Court held that
this argument was “not improper” – the argument
being as follows: “how much is a healthy eye worth?
You cannot restore his vision, but you can
compensate him for the loss. Is an eye worth five
hundred thousand? Eight hundred thousand? A
million? That is for you to say. That is for you to
79. In Taylor, the Court also stated that it does not
believe that Nassar significantly "impacted the
analysis where plaintiff asserted a causal
connection based on close temporal proximity
between the protected conduct and the adverse
employment act." In saying so, the Court
recognized that post-Nassar courts have not come
to agreement as to whether it factors into the
analysis only with regard to the prima facie case or
also with respect to pretext, citing a District of
Maryland decision stating that it was difficult to
understand how Nassar's heightened standard of
causation could apply at the pretext stage and an
Eastern District of New York decision stating that
temporal proximity alone was not sufficient at the
pretext stage after Nassar.
80. In Jernagin v. McHugh, 1:12-cv-1285, 2014 U.S.
Dist. LEXIS 20702 (E.D. Va. Feb. 18, 2014), a non-
jury trial, the Court considered whether alleged age
bias by a second-line supervisor was the but-for
cause of a first-line supervisor giving the plaintiff
employee a low performance rating. The Court
found that the plaintiff had failed to establish such
causation by a preponderance of the evidence.
81. In Battle v. Truland Sys. Corp., No. 12-106,
2014 U.S. Dist. LEXIS 35534 (D.D.C. March
19, 2014) the Court in footnote eight noted
that the D.C. courts have yet to address
whether the Nassar causation standard
applies in Section 1981 retaliation cases, and
the Court declined to resolve that issue in this
case because the plaintiff could not satisfy
even a “motivating factor” standard, much
less a “but-for” standard.
Kollar Cotelly, J.
82. In Love v. D.C. Office of Employee Appeals, 90
A.3d 412 (D.C. 2014) the Court held that the
discharged employees’ mere defense of their
conduct (the negligent screening of two prisoners
who escaped from the D.C. Jail) against a charge
of employee misconduct could not be equated
with a lack of remorse. Thus, the termination
was arbitrary & capricious because the D.C.
Government Agency misapplied Douglas-factor
ten: whether or not the employee lacked the
potential for rehabilitation.
Ferren, S.J., Glickman, Easterly, JJ. Ferren, S.J.
wrote for the panel.
83. In D.C. Metropolitan Police Dept. v. D.C. OEA, 88 A.3d 724 (D.C.
2014) the Court reversed the Superior Court’s affirmance of an
OEA order which had overturned Plaintiff’s termination from the
D.C. Police Department. In so doing, the Court held that OEA
had erredin vacating the termination on the ground that his
unpaid suspension was an authorized interim administrative
suspension rather than a final adverse action and thus
employee’s subsequent termination did not constitute “double
punishment”. Additionally, the Court held that OEA erred in its
Douglas-factor analysis, holding that termination was consistent
with the range of penalties permitted for being arrested with a
blood-alcohol content over three times the legal limit, serving
ten days in jail, and having one’s driver’s license suspended.
Pryor, Fisher, and Thompson, J.J. Pryor, J. wrote for the panel.
84. In Priests For Life v. United States HHS, No. 13-
5368, 2013 U.S. App. LEXIS 26035 (D.C. Cir. Dec.
31, 2013) (granting emergency motion for
injunction pending appeal); cert. denied 134 S.
Ct. 1785 (March 31, 2014).
Per Curiam: Henderson, Tatel, Brown, J.J. Tatel, J.
The Court later found that the plaintiff’s rights
had not been infringed. See Priests for Life v.
United States HHS, 772 F.3d 229 (D.C. Cir. 2014).
Pillard, Rogers, Wilkins, J.J. Pillard, J. wrote for
85. In Bland v. Roberts, 730 F.3d 368 (4th Cir. 2013),
a sheriff refused to reappoint one of his deputies
because the Deputy had “liked” his opponent on
Facebook. The Fourth Circuit found that the
Facebook “like” constituted “pure speech” and a
form of “symbolic expression” which was
protected under the First Amendment.
Traxler, C.J., Thacker, J., Hollander, J. (sitting by
designation). Traxler, C.J. wrote for the panel.
Hollander, J. concurred in part, dissented in part.
86. In Durham v. Jones, 737 F.3d 291 (4th Cir.
2013), a deputy sheriff alerted the press of
unlawful activity in the Sheriff’s office after
increasing pressure to alter an incident
report. The Fourth Circuit held that, under §
1983, the deputy had engaged in speech on a
matter of public concern, and that the Sheriff
was not entitled to qualified immunity in
firing the deputy for that conduct.
Motz, Gregory, Davis, J.J. Davis, J. wrote for
87. In Fonville v. District of Columbia, No. 1:02-cv-02353, 2014
U.S. Dist. LEXIS 51162 (D.D.C. April 14, 2014), the plaintiff, a
command member of the police chief’s staff, was demoted
after the police chief determined that the plaintiff’s conduct
was not consistent with the chief’s exepctations of a person
of the plaintiff’s position. The Court found that the plaintiff
had not shown falsehoold for the purposes of the plaintiff’s
reputation-plus due process claim under the Fifth
88. In Yelp, Inc. v. Hadeed Carpet Cleaing, Inc.,
752 S.E.2d 554 (Va. Ct. App. 2014), cert.
granted, No. 140242, 2014 Va. LEXIS 84 (Va.
May 29, 2014), the Virginia Court of Appeals
held that the trial court did not abuse its
discretion by enforcing a subpoena seeking
the identities of anonymous internet
communicators who left purported reviews of
Frank, Petty, J.J., Haley, S.J. Petty, J. wrote for
89. On July 14, 2014, the EEOC by a 3-2 vote,
issued new enforcement guidance under the
Pregnancy Discrimination Act updating its
Compliance Manual's guidance on the PDA.
The new guidance covers, among other
matters, workplace accommodation
requirements in pregnancy cases.
90. On March 6, 2014 EEOC issued the "Religious
Garb and Grooming in the Workplace: Rights
and Responsibilities" Guidance.
91. In Home Care Ass'n of Am. v. Weil, No. 14-cv-967,
2014 U.S. Dist. LEXIS 176307 (D.D.C. Dec. 22, 2014) the
Court addressed a DOL regulation of October 1, 2013
which removed the exemption third party providers of
home-care services have had for over forty years from
having to pay either minimum or overtime wages to
their employees who provide domestic companionship
services to seniors and individuals with disabilities or to
pay overtime wages to live-in domestic service
92. In Home Care Ass'n of Am. v. Weil, No. 14-
cv-967, 2015 U.S. Dist. LEXIS 4401 (D.D.C.
Jan. 14, 2015) the Court found that the
association had standing and had
successfully challenged DOL's narrowed
definition of "companionship services",
holding that DOL was attempting to do by
regulation what had to be done by legislation.
93. On July 21, 2014, in EO 13672 the
administration required the DOL, DOL to
update the rules that implement EO 11246,
requiring it to add gender identity and sexual
orientation to the categories that EO 11246
protects. On December 3, 2014, DOL issued
its final rule implementing EO 13672, which
should become effective on or about the first
week of March, 2015.
94. In Associated Builders & Contractors v. Shiu, No.
13-1806, 2014 U.S. Dist. LEXIS 37106 (D.D.C.
March 21, 2014), aff’d No. 2014 U.S. App. LEXIS
23358 (D.C. Cir. Dec. 12, 2014), the Court found
that the OFCCP’s rule implementing new
regulations under § 593 of the Rehabilitation Act
can go into effect on March 24, 2014.
These regulations require that government
contractors “take affirmative action to employ
and advance in employment qualified individuals
95. In Assoc. Builders & Contractors, Inc. v. Shiu, No.
13-1806, 2014 U.S. Dist. LEXIS 37106, (D.D.C.
March 21, 2014) the association unsuccessfully
challenged a final rule issued by DOL's OFCCP
called affirmative action and non-discrimination
obligations of contractors and subcontractors
regarding individuals with disabilities, 78 Fed.
Reg. 58,682 (Sept. 24, 2013).
96. In Braddock v. Perez, 584 Fed. Appx. 1 (D.C. 2014) aff’g
934 F. Supp. 2d 238 (D.D.C. 2013), the panel entered
judgment for DOL, finding that the appeal did not warrant
a published opinion. In this matter, three hospitals
disputed their classification as subcontractors by DOL’s
OFCCP, a classification which requires adherence to the
affirmative action requirements of VEVRAA, the
Rehabilitation Act, and E.O. No. 11246. The Court found
the matter to be moot, in large part because DOL had
announced a five-year moratorium on enforcement of
these requirements for subcontractors which were carrying
out the government’s Tricare program for military
personnel and their families.
Per Curiam before Kavanaugh, J. Edwards, and Ginsburg,
97. On December 17, 2014, the congressional review
period for the Fair Criminal Record Screening Act,
D.C. Bill 20-642, A20-0422 (2014) ended, at which
time the Act became an official law.
98. Effective January 1, 2015, Montgomery County
Bill 36-14 became effective. This act prohibits
private employers from making criminal
inquiries on the initial employment application.
The new law applies to employers with fifteen
or more full-time employees in the county.
The law covers applicants seeking paid
employment or vocational or educational
training regardless of compensation in the
county. Current employees seeking promotion
with an employer in the county also qualify as
99. Baltimore City Bill 13-0301 “banned the box”. The
legislation became effective on August 5, 2014.
100. On December 4, 2014, Prince George’s County
passed Bill No. CB-78-2014 and “banned the box”,
effective January 20, 2015.
101. Arlington County, while not exactly banning the
box, did remove it from its application for county
employment. This action of the County Executive
does not require board approval.
102. In the D.C. Human Rights Amendments Act,
Bill No. 20-803, the city council overruled the
so-called Armstrong Law.
103. The City Council is currently considering the
Human Rights Act Notice Requirement
Amendment Act, Bill No. 20-321.
104. Protecting Pregnant Workers Fairness Act of
2014, D.C. Act 20-458 (2014).
Projected Effective Date: January 21, 2015
Covers all employers, regardless of size.
Requires posting of notice, reasonable
105. The “Earned Sick and Safe Leave Amendment Act
of 2013”, B20-0480, L20-0089, was enacted on
January 2, 2014.
Effective as of February 22, 2014, but will not
“apply” until included in an approved budget
plan. This may not occur until 2017 or 2018.
Leave starts to accrue on date of hire, and may
be used after ninety days.
Appears to remove indefinite accrual of sick/safe
Private right of action, strengthens anti-
106. On October 1, 2014, the D.C. Fair Leave Act
of 2014, B20-0734, became effective. This
new law allows D.C. Government employees
to request up to eight weeks of paid leave for
the birth or adoption of a child or to care for
a parent, child, or spouse with a “serious
107. The Maryland Parental Leave Act, S.B. 737, H.B. 1026
(2014) was passed in March of f2014. The Act became
effective October 1, 2014.
It covers employers who employ at least 15 but not more
than 49 employees in Maryland.
Regional and national employers who employ 15 to 49
employees in Maryland, and more than 50 employees in
total, are covered by both the MPLA and the FMLA.
The MPLA provides six workweeks of unpaid parental leave
during the 12 months following birth or adoption.
Leave may be denied only to prevent “substantial and
grievous economic injury”.
It also allows substitution of paid leave and requires job
restoration in most circumstances.
108. In Williams v. Johnson, No. 12-7074, 2015
U.S. App. LEXIS 690 (D.C. Cir. Jan. 16, 2015),
the Court found that evidence that the city
"essentially locked [the employee] into a
position that did not allow for career
advancement is sufficient to support a finding
of constructive discharge."
109. In Wilson v. Cox, 753 F.3d 244 (D.C. Cir. 2014), the Court
reversed the lower court, finding that two statements constituted
direct evidence of age discrimination. Both statements were
made by the individual who had made the decision to terminate
the resident employee program. The first statement was that the
residents were there to “retire” rather than to work, and was
found by the Court to be indicative of an inaccurate and
discriminatory assumption that older residents would prefer not
to work. The second statement was that the supervisor assumed
that all older guards, as a class, were “sleepy”. This comment
also was found to reflect a discriminatory assumption about
older individuals. Finally, the Court held that, on remand, the
District Court should consider the employee’s due process claim.
Srinivasan, Kavanaugh, and Edwards, J.J. Srinivasan, J. wrote for
110. In Tatum v. RJR Pension Investment Committee, 761 F.3d
346 (4th Cir. 2014) the Court affirmed the District Court’s
holding that the employer had breached its fiduciary
duties of procedural prudence when it liquidated two
funds held by a retirement plan on an arbitrary timeline
without conducting a thorough investigation, and thereby
causing substantial loss to the plan. The Court went on to
establish that the breach did not cause loss to the plan
participants, and found that the District Court erred when
it applied the standard that a reasonably prudent fiduciary
“could have” made the same decision after performing a
proper investigation, holding that the correct standard was
to determine whether the fiduciary “would have” made the
same decision. Judge Wilkinson dissented.
Motz, Diaz, Wilkinson, J.J. Motz, J. wrote for the majority.
Wilkinson, J. dissented.
111. In Clark v. Feder, Semo, & Bard, P.C., No. 07-
470, 2014 U.S. Dist. LEXIS 99677 (D.D.C. July
23, 2014), the Court denied the defense
motion for an award of attorneys' fees,
finding that the plaintiff did not act in bad
faith in suing her former firm for unpaid
retirement benefits and further finding that
an award of fees would potentially deter other
ERISA plaintiffs from bringing claims for fear
of having to pay a large fee award if they
112. In Cherry v. Mayor & Baltimore City, 762 F.3d 366 (4th Cir. 2014)
plaintiffs, active and retired Baltimore police officers and
firefighters who participated in a public pension plan sponsored
by Baltimore City mounted constitutional challenges related to
the City’s decision to change the manner in which annual
increases to pension benefits are calculated, claiming that the
changes violated the employees’ rights under the Contract
Clause and the Takings Clause of the constitution. The Court
affirmed the District Court’s holding that the ordinance did not
impair the employees’ rights under the Contract Clause because
the ordinance did not prevent them from pursuing a state-law
breach of contract claim, nor did it immunize the city from its
obligation to pay damages should it be found in breach of
contract. In contrast, the Court remanded the Takings Clause
claim, directing the District Court to address the substance of
Keenan, Traxler, and Floyd, J.J. Keenan, J. wrote for the panel.
113. In Nyambal v. Int’l Monetary, 772 F.3d 277 (D.C.
Cir. 2014) the Court reversed the district court's
grant of jurisdictional discovery, finding that the
grant of discovery against an immune defendant
allowed the Court collateral review. The Court
declined to revisit and narrow the scope of the
International Organization's Immunity Act, 22
U.S.C. § 288 in its earlier opinion in Atkinson v.
Inter-Am. Dev. Bank, 156 F.3d 1335 (D.C. Cir.
1998), reiterating Atkinson's specific ruling that
organizations share the same immunity as foreign
sovereigns unless it is waived.
Tatel, Brown, J.J., Silberman, S.J. Brown, J. wrote for
114. Wash. Alliance of Technology Workers v. U.S.
Dept. of Homeland Sec., No. 14-529, 2014
U.S. Dist. LEXIS 163285 (D.D.C. Nov. 2014)
115. In Green v. Zachry Indus., Inc., No. 7:11-cv-00405,
2014 U.S. Dist. LEXIS 40452 (W.D. Va. March 25, 2014)
the court discussed, and collects cases, as to whether a
district court should retain jurisdiction or dismiss the
case when it compels arbitration, noting that the Fourth
Circuit has, in Aggarao v. MOL Ship Mgmt. Co., 675
F.3d 355, 376 n.18 (4th Cir. 2012) acknowledged
tension between its decision in Hooters, Inc. v. Phillips,
173 F.3d 143 (4th Cir. 1999) where it indicated that a
stay is required with Choice Hotels Int'l, Inc. v. BSR
Tropicana Resort, Inc., 252 F.3d 707, 709-10 (4th Cir.
2001) where it approved dismissal when "all the issues
presented are arbitrable".
The Court also rejected the NLRB's decision in Horton.
116. In Case New Holland, Inc. v. EEOC, 2014 U.S.
Dist. LEXIS 166439 (D.D.C. Oct. 17, 2014) the
National Association of Manufacturers
contended that EEOC violated the
administrative procedure act when it e-
mailed to over 1,000 business e-mail
addresses commencing a nationwide review
of the businesses under the ADEA. the Court
found that NAM lacked standing to pursue
117. In Mendoza v. Perez, 754 F.3d 1002 (D.C. Cir.
2014) the Court found that individuals working
as open-range herders had Article III standing to
challenge a Department of Labor rule which led
to an increased supply of labor, and thus
competition, under the “competitor standing
doctrine”. This doctrine provides that parties
suffer an “injury in fact” when agencies take
actions which permit increased competition.
Tatel, Brown, Millett, J.J. Brown, J. wrote for the
118. In Macy v. Holder, Appeal No. 0120120821
(April 20, 2012) the EEOC stated that Gender
encompasses both a person's biological sex,
and the cultural and social aspects associated
with masculinity and femininity. Accordingly,
EEOC has held that discrimination against an
individual because they are transgendered is
Bernadette B. Wilson, Acting Executive
119. In Jones v. D.C., 879 F. Supp. 2d 69 (D.D.C. 2012) the
OHR dismissed plaintiffs' administrative complaints for
administrative convenience after OHR had found
probable cause. The Court stated: "the best that can be
said is that DCOHR decided to not allocate its resources
to a matter that both parties seemed to prefer litigating
in federal court. Such a dismissal was unrelated to the
plaintiffs' claims or the availability of agency resources
to litigate plaintiffs' complaints administratively...this
court will leave to another day or, preferably, the D.C.
Court of Appeals, to determine whether, having found
probable cause, D.C. OHR can claim administrative
convenience to decline to proceed to a merits hearing
merely because both parties prefer to move the
litigation to a court."
120. In EEOC v. Propak Logistics, Inc., 746 F.3d
145 (4th Cir. 2014) the panel affirmed an
award of over $100,000.00 in fees to the
employer based upon a finding that EEOC was
objectively aware that teh accused division of
the company had closed, barring injunctive
relief, and that EEOC had failed to identify an
aggrieved class, thus preventing an award of
Keenan, Diaz, Wilkinson, J.J. Keenan, J. wrote
for the panel. Wilkinson, J. concurred
121. In McAfee v. Boczar, 738 F.3d 81 (4th Cir.
2014), the Court considered the
reasonableness of an attorneys’ fees award to
a prevailing party in a case brought under
Section 1983, vacated the fee award of
$322,340.50, and remanded for an award of
$100,000, exclusive of costs.
Niemeyer, King, Duncan, J.J. King, J. wrote for
122. In Friolo v. Frankel, 438 Md. 304 (Md. 2014),
the Court held that when awarding plaintiff
employee attorneys’ fees under Maryland
wage laws, it was error to bar any award for
time reasonably expended in pursuing two
appeals because it was reasonable to pursue
the appeals, which the employee won and
which established precedents.
Barbera, C.J., Harrell, Battaglia, Greene,
Adkins, McDonald, Wilner, Alan M. (retired,
specially assigned), J.J. Wilner, J. wrote for
123. In Howard v. Pritzker, Nos. 12-5370, 5392,
2015 U.S. App. LEXIS 77 (D.C. Cir. Jan. 6,
2015) the government argued that the six-
year statute of limitations for suits agains the
United States, contained in 28 U.S.C. 2401(a)
applies to claims filed pursuant to Title VII
regardless of the status of the administrative
proceedings. The Court rejected the
argument, holding that the limitation does
not apply to Title VII actions brought by
Rogers, Brown, J.J., Edwards, S.J. Rogers, J.
wrote for the panel.
124. In Rice v. Alpha Sec., Inc., 556 Fed. Appx. 257 (4th Cir.
2014) the Court addressed the Virginia state court non-
suit rule. Here, plaintiff initially filed in state court, and
did not effect service on the defendant, but instead filed
a non-suit which plaintiff then had the state-court
vacate. Whereupon, the defendant removed the case to
federal court and moved to dismiss, arguing that
plaintiff had failed to effect service under state law on a
timely basis. Initially, the district judge agreed with the
defense and dismissed the case. On reconsideration,
the Court reversed itself and reinstated the case. The
Fourth Circuit affirmed finding that, given the non-suit
rule, plaintiff had not failed to make timely service and
the court afforded plaintiff, on remand, the full federal
time limit to effect service.
125. In Osei v. Coastal Int'l Sec., Inc., No. 1:13-cv-
1204, 2014 U.S. Dist. LEXIS 162289 (E.D. Va.
Nov. 19, 2014) the Court found that a
government contractor taking over a prior
contractor's business for the agency was a
successor-in-interest and thus, for eligibility
purposes under the FMLA, the employee
could "tack on" time worked with the
126. The Virginia State Bar has sought comments on
additions to two ethics rules highlighting the need
for a minimum level of technical sophistication in
the digital age. One change would add to rule 1.1
addressing the competence of lawyers stating that
lawyers should engage in continuing study and
education in pleading the benefits and risks
associated with technology relevant to the lawyer's
practice. The other change would add a new
paragraph to Rule 1.6, governing confidentiality,
which states as follows: "A lawyer shall make
reasonable efforts to prevent the inadvertent or
unauthorized disclosure of, or unauthorized access
to, information protected under this rule."
127. Pro Concepts, LLC v. Resh, No. 2:12-cv-573,
2014 U.S. Dist. LEXIS 18416 (E.D. Va. Feb. 11,
128. Mohammed v. Central Driving Mini Storage,
No. 2:13-cv-469, 2014 U.S. Dist. LEXIS
73431 (E.D. Va. May 28, 2014)
R. Jackson, J.
129. Bauer v. Holder, 25 F. Supp. 3d 842 (E.D. Va.
130. Patel v. Barot, No. 4:13-cv-59, 2014 U.S.
Dist. LEXIS 81265 (E.D. Va. June 13, 2014)
131. Nucor Corp. v. Brown, 760 F.3d 341 (4th Cir.
Gregory, J. directed entry of the order, with
which King, J. and Agee, J. concurred.
132. Williamson v. Bon Secours Richmond Health
Sys., Inc., 3:13-cv-704, 2014 U.S. Dist. LEXIS
102602 (E.D. Va. July 28, 2014)
133. In Budik v. Ashley, No. 12-1949, 2014 U.S.
Dist. LEXIS 51083 (D.D.C. April 14, 2014) the
Court found that it lacked subject matter
jurisdiction over tort claims stemming from
allegedly false statements made by the
plaintiff's supervisor on the grounds that the
United States had not waived sovereign
immunity as to such tort claims, that is, libel,
slander, misrepresentation, and deceit claims.
134. In McBeth v. Shearer's Foods, Inc., 1:12-cv-
00086, 2014 U.S. Dist. LEXIS 29085 (W.D. Va.
March 6, 2014) the Court held that a simple
allegation of pattern and practice
discrimination did not, without more, open
discovery to information related to individuals
outside the normal realm of comparators,
discussing Lowery v. Circuit City Stores, Inc.,
158 F.3d 742 (4th Cir. 1998).
135. In Peart v. Latham & Watkins, LLP, 985 F. Supp.
2d 72 (D.D.C. 2013) the Court, without
deciding, stated that "[t]he D.C. Court of
Appeals has avoided addressing this issue on
at least two occasions." Here, according to the
Court, the plaintiff did not file a charge with
OHR but instead filed her charge with EEOC,
which administratively transferred it to OHR,
under the agencies' work-sharing agreement.
The Court stated "[t]he unnoticed issue is
whether Ms. Peart's EEOC filing constituted a
filing with OHR under the meaning of D.C.
Code § 2-1403.16(a)."
136. In White v. Golden Corral of Hampton, LLC, No. 4:13-
cv-27, 2014 U.S. Dist. LEXIS 33795 (E.D. Va. March 14,
2014) the Court denied the defense motion for
summary judgment even though plaintiff failed to
comply with local rule 56(b), which requires that briefs
in opposition to summary judgment must contain a
specifically captioned section listing all material facts
contended to be in dispute with citations to the record
which support the existence of the dispute. In deciding
not to grant the defense motion despite the non-
compliance, the Court stated that it "will not elevate
form over substance."
137. In Allied Concrete Co. v. Lester, 736 S.E.2d
699 (Va. 2013) where the plaintiff's attorney
had directed his paralegal to instruct the
client to delete content from his Facebook
page that depicted him as something less
than a grieving widower in a wrongful death
case the Court award sanctions.
Powell, J. wrote for the court. McClanahan, J.
concurred in part, dissented in part.
138. In Scott v. Family Dollar Stores, Inc., 733 F.3d
105 (4th Cir. 2013) the the majority
distinguished Wal-Mart Stores, Inc. v. Dukes
on the ground that it was merely permitting
access to court by allowing the amended
complaint. Judge Wilkinson, dissenting,
stated “The majority acts as a cheerleader for
the amended complaint, glossing over its
gross incompatibility with the original and
casually dismissing the threat of prejudice as
Wilkinson, Gregory, Keenan, J.J. Gregory, J.
wrote for the panel. Keenan, J. concurred
separately. Wilkinson, J. dissented.
139. In In re Johnson, 760 F.3d 66 (D.C. Cir.
2014) the Court rejected the secret service's
argument that the district court's class
certification decision merited interlocutory
review under Civil Rule 23(f). The Court
distinguished Wal-Mart Stores, Inc. v. Dukes
on the grounds that plaintiffs were pursuing
an "issue class", that is, every class member
was allegedly evaluated under the same
criteria and scored under the same
Garland, C.J., Wilkins, J., Ginsburg, S.J.
Ginsburg, S.J. wrote for the panel.
140. In Sissel v. United States HHS, 760 F.3d 1
(D.C. Cir. 2014) the Court rejected the
plaintiff's claim that the mandate was
unconstitutional because the legislation
originated in the House of Representatives.
Rogers, Pillard, Wilkins, J.J. Rogers, J. wrote
for the panel.
141. In Spacesaver Sys. v. Adam, 98 A.3d 264 (Md.
2014), the Court found that the employee’s
employment with a company was properly
found to not be at-will, as her employment
agreement was a formal written employment
contract executed by each of the company’s
shareholders, was clear in its terms, and had
a for-cause termination clause.
Adkins, J. wrote for the Court.
142. In Antonio v. SSA Sec., Inc., 749 F.3d 227 (4th
Cir. 2014), a panel of the Fourth Circuit certified
the following question to the Maryland Court of
Does the Maryland Security Guards’ Act (Md. Code Ann.,
Bus. Occ. & Prof. § 19-501) impose liability beyond
common-law principles of respondeat superior such that
an employer may be responsible for off-duty criminal
acts of an employee if the employee planned any part of
the off-duty criminal acts while he or she was on duty?
King, Wynn, Floyd, J.J. Floyd, J. directed entry of
143. In Mulrain v. Castro, 760 F.3d 77 (D.C. Cir. 2014), the Court
held that an African-American attorney at HUD had failed to
show that racial discrimination resulted in the promotion of a
white attorney who had not applied for the job. Here, HUD
offered as its explanation its contention that a senior HUD
official who was unaware of plaintiff's application, had feared
that the white attorney, deemed a "superstar", was about to
leave the agency and desired to retain the white attorney by
offering her an unsought promotion. The Court declined to
compare the two attorneys because the HUD senior official
had not even known of plaintiff's candidacy and her allegedly
significant superior qualifications.
Griffith, Kavanaugh, Pillard, J.J.
144. Self-Storage Mgmt. Masterson v. AAAA up,
LLC, No. 2:12-cv-697, 2014 U.S. Dist. LEXIS
6476 (E.D. Va. Jan. 14, 2014) the Court found
that two age-related statements made by the
manager responsible for terminating plaintiff
did not provide evidence of discriminatory
animus because they were “unrelated to the
decision process itself[.]”