1. Employment Law Update by Robert B. Fitzpatrick, Esq.
Robert B. Fitzpatrick, PLLC
Suite 640
Universal Building South
1825 Connecticut Avenue, N.W.
Washington, D.C
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2. Lilly Ledbetter Fair Pay Act of 2009
Pub. L. No (2009)
“For purposes of this section, an unlawful employment practice occurs, with respect to discrimination compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice” Id. § 3(a)
“This Act, and the amendments by this Act, take effect as if enacted on May 28, 2007” Id. § 6
Bush v. Orange County Corr. Dep’t, 2009 U.S. Dist. LEXIS (M.D. Fla. Feb. 2, 2009)
Gilmore v. Macy’s Retail Holdings, 2009 U.S. Dist. LEXIS (D.N.J. Jan. 20, 2009)

3. Americans With Disabilities Act
ADA Amendments Act of 2008, Pub. L. No (2008)
Kellogg v. Energy Safety Servs. Inc., 544 F.3d 1121, U.S. App. LEXIS (10th Cir. 2008) (driving is a major life activity)
Adams v. Rice, 531 F.3d 936, 2008 U.S. App. LEXIS (D.C. Cir. 2008) (sexual relations is a major life activity)

4. Americans With Disabilities Act
Desmond v. Mukasey, 530 F.3d 944, U.S. App. LEXIS (D.C. Cir ) (sleeping is a major life activity)
Archive ADA: The Path to Equality, (last visited February 27, 2009)

5. Retaliation Claims: The Tail is Wagging the Dog
The number of retaliation charges filed with the EEOC increased from 1997 at 22.6% to 29.8% of all charges filed in Sylvia A. Bier, American Bar Ass’n, Protect Against the Surge of Employee Retaliation Claims: Understanding Title VII and Its Application to Recent EEOC Cases, 36 The Brief 3, at 15 (Spring 2007)
Crawford v. Metropolitan Gov’t of Nashville and Davidson County, 129 S. Ct. 846, 2009 U.S. LEXIS 870 (2009)
Michael J. Zimmer, A Pro-Employee Supreme Court? – Retaliation Decisions, 60 S.C. L. Rev. (forthcoming 2009), available at

6. Litigation Under New Whistleblower Laws
Consumer Product Safety Improvement Act of 2008, Pub. L. No , 15 U.S.C. § 2087 (2008) (CPSIA whistleblower rights to private sector workers connected with the manufacture, importing, distribution, labeling, or retail sail of consumer products under the jurisdiction of the Consumer Product Safety Commission)
McCaskill Amendment (S.Amdt. 196) to the American Recovery and Reinvestment Act of 2009, H.R. 1, 111th Cong. (2009)
See also whistleblower amendment to the Surface Transportation Assistance Act 49 U.S.C. § 31105, the Federal Rail Safety Act (49 U.S.C. § 20109), the National Transit Systems Security Act (6 U.S.C. § 1142) and section 846 of the National Defense Authorization Act for Fiscal Year 2008 (10 U.S.C. § 2409) (amending whistleblower protection for employees of DOD contractors and grantees)

7. SOX
Platone v. United States Dep’t of Labor, 548 F.3d 322, 2008 U.S. App. LEXIS (4th Cir. 2008) (holding that the plaintiff’s communication to her supervisors that pilots were misusing a missed-flight reimbursement plan was merely communicating a “billing discrepancy” and was not enough information to indicate “possible fraud against shareholders” within the scope of SOX)
Day v. Staples, Inc., 2009 U.S. App. LEXIS 2266 (1st Cir. Feb. 9, 2009) (SOX did not bar the termination of an employee whose complaints about the company’s product return practices could not reasonably have been construed to reflect an objectively reasonable belief that the company was defrauding shareholders)

8. Gross v. FBL Financial Servs., Inc.
129 S. Ct. 680, 2008 U.S. LEXIS 8885 (2008), cert. granted, 526 F.3d 356 (8th Cir. 2008)
Does § 2000(e)-2(m) of the Civil Rights Act of apply to claims arising under the ADEA?
Does the Court’s decision in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) supersede Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)?

9. Ricci v. DeStefano
129 S. Ct. 893, 2009 U.S. LEXIS 394 (2008), cert. granted, 530 F.3d 87 (2d. Cir. 2008)
Is it “reverse” discrimination to withdraw promotions because a test had disparate impact?
Oakley v. City of Memphis, 2008 U.S. App. LEXIS (6th Cir. 2008) (When content-valid, civil service examination and race-neutral selection process yield unintended racially disproportionate results, does employer racially discriminate when it rejects results and successful candidates in order to achieve racial proportionality in candidates selected?)

10. Graham County Soil & Water v. United States ex rel. Wilson
129 S. Ct. 753, 2008 U.S. LEXIS 9031 (2008), cert. granted, 528 F.3d 292 (4th Cir. 2008)
Does the public disclosure bar of the False Claims Act apply to administrative audits, reports, hearings or investigations conducted or issued by a state or local governmental entity?

11. 14 Penn Plaza LLC v. Pyett
128 S. Ct. 1223, 2008 U.S. LEXIS 1418 (2008), cert. granted sub nom, Pyett v. Pa. Bldg. Co., 498 F.3d 88 (2d. Cir. N.Y. 2007)
Whether and arbitration provision in a collective bargaining agreement (CBA) , which explicitly waives union members’ right to bring statutory discrimination claims in court, I enforceable so as to deprive the employees of a judicial forum even where the union has refused to submit the claims to arbitration.
See Austin v. Owens-Brockway Glass Container, 78 F.3d 87 (4th Cir ) (individual must pursue discrimination claims through union-negotiated grievance procedure; provision requiring arbitration of such claims is enforceable). The Supreme Court, when presented with a similar question in Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1990), refused to resolve the question, holding that it was not clearly presented because that CBA provision did not explicitly include statutory claims.

12. Fitzgerald v. Barnstable School Committee
129 S. Ct. 788, 2009 U.S. LEXIS 592 (2009), rev’d, 504 F.3d 165 (1st Cir. 2007)
Title IX was not meant to be an exclusive mechanism for addressing gender discrimination in schools, or a substitute for §1983 suits as a means of enforcing constitutional rights
The implied private right of action under Title IX is “in stark contrast to the ‘unusually elaborate,’ ‘carefully tailored,’ and ‘restrictive’ enforcement schemes of the statutes in Sea Clammers, Smith and Rancho Pelos Verdes.”

13. Hybrid FLSA Cases
Under the FLSA, plaintiffs can proceed under the Section 216(b) “opt- in” collective action procedure, but only state law claims allow for an “opt-out” class actions under FRCP 23. Combining an FLSA collective action and a state-law class action claims in one proceeding has been labeled a “hybrid” wage and hour action. Some courts have allowed plaintiffs to proceed with a hybrid or “opt in/opt out” approach under both FLSA Section 216(b) for opt in notice and FRCP 23 for class notice as to state law claims (on an opt out basis). See McLaughlin v. Liberty Mutual Ins. Co., 224 F.R.D. 304 (D. Mass. 2004); Ansoumana v. Gristede's Operating Corp., 201 F.R.D. 81 (S.D.N.Y. 2001); O'Brien v. Encotech Constructions Servs., Inc., 203 F.R.D. 346 (N.D. Ill )
Lindsay v. Gov’ Employees Ins. Co., 448 F.3d 416, 2006 U.S. App. LEXIS (D.C. Cir. 2006)

14. Transgender Discrimination
Schroer v. Billington, 577 F. Supp. 2d 293, 2008 U.S. Dist. LEXIS (D.D.C. 2008); see also Schroer v. Billington, 424 F. Supp. 2d 203, 2006 U.S. Dist. LEXIS (D.D.C. 2006)
Etsitty v. Utah Transit Auth., 502 F.3d 1215, 2007 U.S. App. LEXIS (10th Cir. 2007)
Zachary A. Kramer, Heterosexuality and Title VII, 103 Nw. U. L. Rev. 205 (2009)
Elizabeth M. Glazer & Zachary A. Kramer, Transitional Discrimination, Temp. Pol. & Civ. Rts. L. Rev. (forthcoming 2009), available at

15. Class Actions
In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305, U.S. App. LEXIS (3d Cir. 2008) (in a landmark opinion, Chief Judge Scirica provided extensive guidance to the district courts in deciding whether to certify a class under Civil Rule 23, stating that the district court must find, by a preponderance of the evidence, that each requirement of Rule 23 is satisfied, that it must “resolve all factual and legal disputes relevant to class certification even if they overlap with the merits”, and holding that expert testimony is part of the relevant evidence that the court must consider)
Dukes v. Wal-Mart, Inc., 509 F.3d 1168 (9th Cir. 2007), reh’g granted, 2009 U.S. App. LEXIS 2854 (9th Cir. Feb. 13, 2009)

16. Class Action Waivers in Arbitration
In re American Express Merchant’s Litigation, 2009 U.S. App. LEXIS 1646 (2d Cir. Jan. 30, 2009)
Homa v. American Express, 2009 U.S. App. LEXIS 3688 (3rd Cir. 2009)
Shannon P. Duffy, 3rd Circuit Deals Blow to Class-Arbitration Waivers, The Legal Intelligencer, February 25, 2009, available at

17. Arbitration Issues Continue to Abound
Morales v. Sun Constructors, Inc., 541 F.3d 218 (3d Cir. 2008) (the majority, with Judge Fuentes dissenting, held that an employee who did not read English nonetheless manifested mutual assent to the arbitration clause at issue; the panel unanimously reaffirmed that it would be inconsistent with the FAA to apply a heightened “knowing and voluntary standard” to arbitration agreements)
Guyden v. Aetna Inc., 544 F.3d 376 (2d Cir. 2008) (held that nothing in the statute prohibits SOX whistleblower claims from being resolved in arbitration )
Richard A. Bales, Twenty-Second Annual Carl A. Warns, Jr. Labor & Employment Law Institute: Contract Formation in Employment Arbitration, 44 Brandeis L.J. 415 (2006)

18. Attorney-Client Privilege Waivers When Client Communicates Using Employer’s Equipment or System
Adam C. Losey, Clicking Away Confidentiality: Workplace Waiver of Attorney-Client Privilege, 60 Fla. L. Rev (2008)
Suggested language for representation agreements:
“Client agrees and consents to the Firm’s transmission of bills and other materials related to billing by facsimile and to Client. Typically, the Firm would communicate by to Client and the Client agrees and consents to transmission to Client of privileged attorney-client communications. While provides a fast and efficient medium for communication, there exists some case law which suggests that communications between attorney and client may not be confidential and may be discoverable by an adverse party.
“In addition, most employers consider company-owned computers, as well as all information contained in them, to be company property. Accordingly, there is generally no right to privacy of any sent or received at your place of employment. Your employer has complete access to, and is capable of, retrieving any message sent or received by you at your company-owned computer or business address, even after you have deleted the message.
“Therefore, you should NEVER communicate by with your attorney using a company-owned computer or your business address. Additionally, you should exercise discretion in ing the Firm from your home or non-business address. “

19. National Origin Discrimination Claims
Estenos v. PAHO/WHO Fed. Credit Union, 952 A.2d 87, D.C. App. LEXIS 281 (D.C. 2008)
Stratton & Bergquist, The Contours of National Origin Discrimination Under Federal Law, National Employment Lawyers Association 18th Annual Convention Manual (2007)

20. Race Prohibited as a Criterion for Computing Damages
McMillan v. City of New York, 2008 U.S. Dist. LEXIS (E.D.N.Y. Sep. 19, 2008) (Weinstein, J.) (Order Excluding “Race” as a Criterion for Computing Damages)
“While ‘race’ may be a social construct, many policymakers and courts insist that it ‘remains a significant predictor of… access to societal goods and resource.’ Audrey Smedley & Brian D. Smedley, Race as a Biology is Fiction, Race as a Social Problem is Real, 60:1 Am. Psychologist 16, 22 (2005). ‘Racial’ and ‘ethnic’ disparities in quality of health care, for example, remain substantial across a broad range of medical services. Id at 23. But those ‘disparities are associated with socioeconomic difference and tend to diminish significantly and, in a few cases, to disappear altogether when socioeconomic factors are controlled.’ Id. By allowing the use of ‘race’-based life expectancy tables, which are based on historic data, courts are essentially reinforcing the underlying social inequalities of our society rather than describing a significant biological difference.”

21. The Contours of “Protected Activity”
Birdyshaw v. Dillard’s Inc., 2009 U.S. App. LEXIS 1737 (11th Cir. Jan. 28, 2009)
Circuit split about whether a person who rejects a supervisor’s sexual advances has engaged in a protected activity. Compare LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 389 (5th Cir. 2007) (holding that a single, express rejection of sexual advances does not constitute “protected activity” for purposes of a retaliation claim) with Ogden v. Wax Works, Inc., 214 F.3d 999, 1007 (8th Cir ) (finding that when the plaintiff told her supervisor to stop harassing her, she engaged in the most “basic form of protected conduct”).
Niswander v. The Cincinnati Ins. Co., 529 F.3d 714, 2008 U.S. App. LEXIS (6th Cir. 2008) (majority sets forth a six-factor balancing test for determining whether employee’s delivery of confidential documents to her attorney was reasonable )

22. Damages Issues
Eshelman v. Agere, 2009 U.S. App. LEXIS 1947 (3d Cir. Jan. 30, 2009) (holding that a district court may, pursuant to its broad equitable powers granted by the ADA, award a prevailing employee an additional sum of money to compensate for the increased tax burden a back pay award may create). Contra Fogg v. Gonzales, 492 F.3d 447 (D.C. Cir. 2007) (Court affirmed the award of back pay and denial of front pay, but reversed as to the extent of the “gross up”) and Dashnaw v. Pena, 12 F.3d 1112 (D.C. Cir. 1994) (holding that “absent an arrangement by voluntary settlement of the parties, the general rule that victims of discrimination should be made whole does not support ‘gross-ups’ of back pay to cover tax liability. We know of no authority for such relief.”)
Tarr v. Bob Ciasulli’s Mack Auto Mall, Inc., 943 A.2d 866, 2008 N.J. LEXIS 222 (N.J. 2008) (punitive damages awards to focus only on deterrence of the specific defendant as opposed to general deterrence of others; consideration of the employer financial condition both after and at the time of the wrongful conduct is necessary)

23. Damages Issues
Robert H. Wright, Punitive Damages Immunity of Federal Instrumentalities, 38 The Brief, A.B.A. Sec. Tort Trial & Ins. Practice 24 (2009), available at (appellate courts have split on the fundamental question of whether the “sue and be sued” language in the statutes granting federal charters to federal instrumentalities, including Fannie Mae, Freddie Mac, and the American Red Cross, waives the federal instrumentality’s immunity from punitive damages claims. Compare in re Sparkman, 703 F.2d 1097, (9th Cir. 1983) (holding that “[a] federal instrumentality… retains its immunity from punitive damages unless Congress explicitly authorizes liability for such damages”) with McGee v. Tucoemas Federal Credit Union, 153 Cal. App. 4th 1351 (Cal. Ct. App. 2007) (refusing to follow in re Sparkman and holding instead that federal instrumentalities are generally subject to punitive damage claims))

24. Application of Faragher-Ellerth Affirmative Defense to FLSA Cases
Lisa A. “Lee” Schreter, Whitney M. Ferrer & SoRelle B. Braun, Adopting the Avoidable Consequences Affirmative Defense: Applying the Lessons of Ellerth/Faragher to FLSA Claims, copies available from the author at

25. Attorneys’ Fees for Pre-suit Work in ERISA Cases
Cann v. Carpenter’s Pension Trust Fund, 989 F.2d 313 (9th Cir ) (Court interpreted §1132(g)(1)’s language “in any action” to preclude the award of fees for any efforts expended on negotiations or administrative proceedings prior to the action.)
LaSelle v. Public Service Co. of Colorado Severance Pay Plan, 988 F. Supp (D. Colo. 1997) (agreeing with Cann that ERISA’s attorneys’ fees provision did not permit recovery for fees incurred in the administrative fee of the proceedings but held that all time spent by counsel in interviews, consultation, preliminary research, and various additional tasks unrelated to the administrative appeal, even thought performed before the filing of the complaint, is compensable)

26. Attorneys’ Fees for Pre-suit Work in ERISA Cases
Hedley-Whyte v. Unum Life Ins. Co. of America, U.S. Dist. LEXIS 5880 (D. Mass. 1996) (“This Court find Cann’s strict exclusion of prelitigation expenses to be a questionable interpretation of the statutory language… this Court can identify no sound reason however based on the statutory language, why a court lacks discretion to award fees and costs for work appropriately contributing to the prosecution of the action just because they were incurred prior to the filing date”)

27. USERRA Litigation
Serricchio v. Wachovia Securities LLC, 556 F. Supp. 2d 99, 2008 U.S. Dist. LEXIS (D. Conn. 2008) (Plaintiff was a financial adviser working on commissions who was called to active duty, and upon reinstatement, argued that defendant had not satisfied its reemployment obligations under 38 U.S.C , contending that defendant had a duty to preserve his book of business. The Court held that defendant does not have a duty to provide the employee with “his exact previous book of business, so long as what is provided gives him the opportunity to reenter the workforce with comparable earning potential and chance for advancement as his own book of business provided prior to his service, regardless of whether the same clients are in the substituted book”)

28. Cy Pres Power
Diamond Chemical Co. Inc. v. Akzo Nobel Chemicals B.V., 517 F.Supp.2d 212 (D.D.C. 2007) and 2007 U.S. Dist. LEXIS (D.D.C. 2007)
Amanda Bronstad, Cy Pres Awards Under Scrutiny, The National Law Journal, August 11, 2008, available at
Theodore Frank, The Federalist Society, Class Action Watch, Cy Pres Settlements (Apr. 4, 2008), available at soc.org/doclib/ _FrankCAW7.1.pdf
Adam Liptak, Doling Out Other People’s Money, N.Y. Times, Nov. 26, 2007, available at _r=1&oref=slogin

29. Cy Pres Power
Another possibility for distribution of unclaimed monies in class action settlements might be the utilization of state unclaimed property laws. See John L. Coalson, Jr. & Ethan D. Millar, The Pot of Gold at the End of the Class Action Lawsuit: Can States Claim it as Unclaimed Property? (2008), available at

30. Computer Fraud & Abuse Act
Int’l Airport Centers v. Citrin, 440 F.3d 418 (7th Cir. 2006) (while the CFAA does not define “transmission” a “transmission” includes the installation and use of an erasure program on the computer)
Patrick Patterson Custom Homes, Inc. v. Bach, 586 F. Supp.2d 1026, U.S. Dist. LEXIS (N.D. Ill ) (opinion discusses whether the defendant “knowingly cause[d] the transmission of a program, information, code or command, and as a result of such conduct intentionally cause[d] damage without authorization, to a protected computer” )
L-3 Commc’ns Westwood Corp. v. Robicharux, 2007 U.S. Dist. LEXIS (E.D. La. Mar. 8, 2007)

31. Computer Fraud & Abuse Act
Chas. S. Winner, Inc. v. Polistina, 2007 U.S. Dist. LEXIS (D.N.J. June 4, 2007)
Motorola Credit Corp. v. Uzan, 2002 U.S. Dist. LEXIS (S.D.N.Y. Oct. 16, 2002)
Pearl Invs. LLC v. Standard I/O, Inc., 257 F. Supp. 2d 326, 2003 U.S. Dist. LEXIS 6890 (D. Me. 2003)
United States v. Middleton, 231 F.3d 1207 (9th Cir )
Spangler, Jennings & Dougherty, P.C. v. Mysliwy, U.S. Dist. LEXIS (N.D. Ind. 2006)
Tyco Int’l Inc. v. Does, 2003 U.S. Dist. LEXIS (S.D.N.Y. July 11, 2003)

32. Defense Discovery Subpoenas to Plaintiffs’ Former and Current Employers
Barrington v. Mortage IT, Inc., 2007 U.S. Dist. LEXIS (S.D. Fla. Dec. 10, 2007) (rejecting subpoenas duces tecum which sought “any and all documents, files and records, reflecting or relating to the employment” of the plaintiff as “overly broad on their face”)
Badr v. Liberty Mutual Group, Inc., 2007 U.S. Dist. LEXIS (D. Conn. Sept. 28, 2007) (holding that defendant’s subpoena of “any and all” records relating to plaintiff was overbroad and limiting the subpoena to documents relating to prior claims or complaints against plaintiff’s co-workers)
Richards v. Convergys Corp., 2007 WL (D. Utah Feb. 7, 2007) (quashing overbroad subpoena duces tecum directed to plaintiff’s former employer that sought “all documents in your possession or control regarding the employment of” the plaintiff)
Richmond v. UPS Serv. Parts Logistics, 2002 U.S. Dist. LEXIS 7496, at 13, 2002 WL (S.D. Ind. Apr. 5, 2002) (holding that a discovery request for the plaintiff's entire personnel file was “on its face” overbroad)

33. Compensation Litigation
Pachter v. Bernard Hodes, 891 N.E. 2d 279 (N.Y. 2008) (deciding certified questions from the Second Circuit and finding that executives are covered by the New York Labor Law unless expressly excluded and holding that “in the absence of a governing written instrument, when a commission is ‘earned’ and becomes a ‘wage’ for purposes of Labor Law article 6 is regulated by the parties’ express or implied agreement; or if no agreement exists by the default common-law rule that ties the earnings of a commission to the employee’s production of a ready, willing and able purchaser of the services.” See also Pachter v. Bernard Hodes Groups, Inc., 541 F.3d 461, 2008 U.S. App. LEXIS (2d Cir. 2007)
Weems v. Citigroup Inc., 453 Mass. 147, 2009 Mass. LEXIS 19 (Mass. 2009) forfeiture provision in employee stock plan held not to violate state wage act)
In re Citigroup, Inc., 535 F.3d 45, 2008 U.S. App. LEXIS (1st Cir ) (forfeiture provisions of employer’s capital accumulation plans were unambiguous and enforceable)

34. Privacy in the Workplace in the Electronic Age
Quon v. Arch Wireless Operating Co., 529 F.3d 892, U.S. App. LEXIS (9th Cir. 2008), reh’g denied, 2009 U.S. App. LEXIS 2259 (9th Cir. Jan. 27, 2009)
Richard A. Paul & Lisa Hird Chung, Brave New Cyberworld: The Employer’s Legal Guide to the Interactive Internet, 24 Lab. Law. 109 (2008)
Elizabeth C. Lawnicki, Location Surveillance in the Employment Context and the Right to Privacy, available at Contest_Winners/Contest-Lawnicki.pdf

35. Collaborative Law
Michael A. Zeytoonian, Pioneers on the Horizon: Collaborative Law in Employment Disputes, available at disputes.pdf
Collaborative Law Process Agreement for Business and Employment Cases, available at
R. Paul Faxon & Michael Zeytoonian, Prescription for Sanity in Resolving Business Disputes: Civil Collaborative Practice in a Business Restructuring Case, available at riptionForSanityInResolvingBusinessDisputes.pdf

36. A New Generation of Discrimination Claims: “Unconscious Discrimination”
Franita Tolson, The Boundaries of Litigating Unconscious Discrimination, 33 Del. J. Corp. L (2008)

37. Bullying Claims in the Workplace
Raess v. Doescher, 883 N.E.2d 790, 2008 Ind. LEXIS 313 (Ind. 2008) (The Indiana Supreme Court, over the dissent of one judge, declined to decide whether it was error to admit the testimony of a so-called “bullying expert.” A cardiac surgeon who was accused of being a workplace bully because he yelled at a co-worker, was sued by the co-worker for intentional infliction of emotional distress, and the trial court permitted a so-called “bullying expert” to testify. The Supreme Court did state as follows: “The phrase ‘workplace bullying,’ like other general terms used to characterize a person’s behavior, is an entirely appropriate consideration in determining the issues before the jury. As evidenced by the trial court’s questions to counsel during pre-trial proceedings, workplace bullying could ‘be considered a form of intentional infliction of emotional distress.’”)
Tresa Baldas, States Take Aim by Taming “Bully Bosses”, The National Law Journal, April 9, 2007

38. Pregnancy Discrimination Act
Doe v. C.A.R.S. Protection Plus, Inc., 543 F.3d 178, U.S. App. LEXIS 19544(3d Cir. 2008) (Court found that a plaintiff’s claim that she was terminated because she underwent a surgical abortion states a claim under the Pregnancy Discrimination Act)

39. Demise of Prima Facie Case Analysis
Brady v. Office of the Sergeant of Arms, U.S. House, 520 F.3d 490 (D.C. Cir. March 28, 2008) (“Lest there be any lingering uncertainty, we state the rule clearly: In a Title VII disparate-treatment suit where an employee has suffered an adverse employment action and an employer has asserted a legitimate, non-discriminatory reason for the decision, the district court need not -- and should not -- decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas. Rather, in considering an employer's motion for summary judgment or judgment as a matter of law in those circumstances, the district court must resolve one central question:  Has the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of race, color, religion, sex, or national origin?”)

40. Additional papers authored by Mr
Additional papers authored by Mr. Fitzpatrick may be found at FJC online ( including the following:
Employment Law Update
New Federal Labor and Employment Legislation
Proposed Federal Employment and Labor Legislation
Emerging Employment Law Issues
Review of the Supreme Court’s Employment Cases ( Term) And A Preview of the Coming Term ( Term)
Review of the Supreme Court’s Employment Cases ( Terms)

41. Retaliation – Timing Issues
Brenes v. City of New York, 2009 U.S. App. LEXIS (2d Cir. Mar. 23, 2009) (the court held that the timing of an attempt to reject the plaintiff’s appointment to teach at a school was probative of retaliatory animous even though the first negative evaluation of plaintiff occurred nearly ten months after the protected activity, where a transfer form prepared less than two months after the protected activity also attempted to reject his appointment. The court also found a series of negative performance evaluations at the start of the next school year to be suspicious, particularly given the fact that the plaintiff previously received only satisfactory evaluations)

42. Title VII – Adverse Action
Douglas v. Donovan, 2009 U.S. App. LEXIS 5456 (D.C. Cir. Mar. 17, 2009) (Judge Janice Rogers Brown, writing for the majority, with Judge Tatel dissenting, held that a department head’s failure to recommend a federal employee for a prestigious award (that includes a substantial financial benefit) is not an adverse employment action under Title VII as the harm is too speculative. The majority found there to be instances where there is a categorical presumption of harm and others where the court imposes a causation requirement. In the latter, the employee must go the further step of demonstrating how the decision caused objectively tangible harm)

43. Collective Action
Sandoz v. Cingular Wireless, LLC, 553 F.3d 913 (5th Cir ) (plaintiff filed a putative collective action under the FLSA, and filed a motion to certify her collective action. The defendant submitted to the individual plaintiff a Rule 68 offer of judgment for $1,000 plus her reasonable attorneys’ fees, which plaintiff did not accept. The defense argued that its make-whole offer to the named plaintiff alone in a collective action under the FLSA divests the court of subject matter jurisdiction. Thereafter, plaintiff filed her motion for certificaiton of her collective action. The circuit court, on an interlocutory appeal, held that “when a FLSA plaintiff files a timely motion for certification of a collective action, that motion relates back to the date the plaintiff filed the initial complaint, particularly when one of the defendant's first actions is to make a Rule 68 offer of judgment”)

44. FMLA
Rasic v. City of North Lake, 563 F.Supp.2d 885 (N.D. Ill ) (the district court, recognizing a split among the Circuits on the question of whether the FMLA permits a right of action against individuals who are public, rather than private, employees, held that public agency employees may be individual defendants under the FMLA. Modica v. Taylor, 465 F.3d 174, 186 (5th Cir. 2006) (holding that public employees may be held individually liable under FMLA) and Darby v. Bratch, 287 F.3d 673, 681 (8th Cir. 2002) (same) with Wascura v. Carver, 169 F. 3d 683, (11th Cir. 1999) (holding that there is no individual liability for public employees under FMLA) and Mitchell v. Chapman, 343 F.3d 811, (6th Cir. 2003), cert. denied 542 U.S. 937, 124 S. Ct. 2908, 159 L. Ed. 2d 813 (2004) (same))

45. Compensable Time
Gatewood v. Koch Foods of Mississippi, LLC, 569 F.Supp.2d 687 (S.D. Miss. 2008) (in this donning and doffing FLSA case, the district court granted, in part, defendant’s motion for summary judgment where the union failed to collectively bargain on the issue of non-compensation for changing clothes at the beginning and end of each workday, finding that thus a workplace practice existed sufficient to invoke the defense set forth in 29 U.S.C. § 203(o))

46. Class Actions
Vondriska v. Premier Mortgage Funding, Inc., 564 F.Supp.2d 1330 (M.D. Fla. 2007) (the district court discussed at some length the process of by which the district courts are to determine whether or not to certify a FLSA case as a collective action. The court noted that typically there is a determination made at the so-called “notice stage” and if that be successful, a second determination precipitated by a motion for “decertification” usually filed by the defendant after discovery has been completed. In this case, the court discussed at length the standards to be used when a court is making the determination at the “notice stage.” The court held that it could conditionally certify a class of FLSA plaintiffs seeking unpaid overtime, upon a showing by the plaintiffs of “(1) whether there are other employees who desire to opt in to the action; and (2) whether the employees who desire to opt in are ‘similarly situated’”)

47. EEOC Litigation
Equal Employment Opportunity Comm’n v. Watkins Motor Lines, 553 F.3d 593 (7th Cir. 2009) (holding that EEO litigation continues even though the charging party has settled)

48. Religious Freedom Restoration Act of 1993
Potter v. Dist. of Columbia, 2009 U.S. App. LEXIS (D.C. Cir. Mar. 6, 2009)
Fitzpatrick v. City of Atlanta, 2 F.3d 1112 (11th Cir. 1993)

49. Dispute Resolution
Gibson v. Neighborhood Health Clinics, Inc., 121 F.3d 1126 (7th Cir. 1997).

50. RICO Claims Against Employers
Brown v. Cassens Transp. Co., 2008 U.S. App. LEXIS (6th Cir. 2008).

51. Noerr-Pennington Doctrine
Chalpin v. Snyder, 2008 Ariz. App. LEXIS 156 (2d Cir. 2008).

52. “Similarly Situated” Co-Workers
Billue v. Praxair, Inc., 2008 U.S. App. LEXIS (2d Cir. 2008).

53. Brown v. Wells Fargo Bank, 168 Cal. App. 4th 938 (Cal. Ct. App. 2008).
TITLE
Brown v. Wells Fargo Bank, 168 Cal. App. 4th 938 (Cal. Ct. App. 2008).

54. Affirmative Action
Rothe Dev. Corp. v. Dep’t of Def., Civil Action No (Fed. Cir. Nov. 4, 2008).
Robert B. Fitzpatrick, Affirmative Action and Diversity Programs in the Workplace: Some Questions (2007), available at rticles.html.

55. Courtroom Testimony as Protected Speech
Reilly v. Flipping, 532 F.3d 316 (3rd Cir. N.J ), cert. denied 2009 U.S. LEXIS (2009).

56. Disability Discrimination and Harassment
Mangano v. Verity, Inc., 84 Cal. Rptr. 3d 526 (Cal. Ct. App. 2008).

57. Whistleblowing and the First Amendment
Thomas v. City of Blanchard, 548 F.3d (10th Cir. 2008).

58. S.E.C. v. Collins & Aikman Corp.
2008 U.S. Dist. LEXIS 3367 (S.D.N.Y. Jan. 13, 2009)

59. FMLA Cases Continue to Proliferate
Brown v. Nutrition Mgmt. Servs. Co., 2009 U.S. Dist. LEXIS 4199 (E.D. Pa. Jan. 21, 2009)

60. TITLE
Opinion and Order, McDonald v. Best Buy Co., Inc., 2008 U.S. Dist. LEXIS (C.D.Ill. Aug. 28, 2008)

61. Employer Sued for Using Lie Detector Test
Worden v. Sun Trust Banks, 549 F.3d 334 (4th Cir. 2008).

62. Defense Discovery Seeking Access Plaintiff’s Facebook Account

63. Religious Discrimination Issues
Nantiya Ruan, Accommodating Respectful Religious Expression in the Workplace, 92 Marq. L. Rev. 1 (2008)

64. FMLA
Townsend-Taylor v. Ameritech Servs., Inc., 523 F.3d 815 (7th Cir. 2008)

65. Americans with Disabilities Act
Pulver, An Imperfect Fit: Obesity, Public Health, and Disability Anti-Discrimination Law, 41 Colum. J. L. & Soc. Probs. 365 (2008)

66. Ethical Issues Regarding Misrepresentations During Investigations
In re Pautler, 47 P.3d 1175 (Or. 2002)
Apple Corps. Ltd. v. Int’l Collectors Soc’y, 15 F.Supp.2d 456 (D.N.J. 1998)
Richardson v. Howard, 712 F.2d 319 (7th Cir. 1983)
David B. Isbell & Lucantonio N. Salvi, Ethical Responsibility of Lawyers for Deception by Undercover Investigators and Discrimination Testers: an Analysis of the Provisions Prohibiting Misrepresentation under the Model Rules of Professional Conduct, 8 Geo. J. L. Eth. 791 (Summer 1995)
Arizona Ethics Opinion No (1999)
Utah State Bar Ethics Advisory Opinion Committee Opinion No (2002)
New York County Lawyer’s Association Committee on Professional Ethics Formal Opinion 737 (2007)

67. Passive Discrimination
Jonah Gelbach et al., Passive Discrimination: When
Does it Make Sense to Pay Too Little?, __ Univ. Chi. L. Rev. __ (forthcoming 2009), available at =

68. Agri Processor Co., Inc., v. NLRB
129 S. Ct. 594, 2008 U.S. LEXIS 8451 (2008), cert. denied, 514 F.3d 1 (D.C. Cir. 2008)

69. ERISA Cash Balance
Brief for the United States as Amicus Curiae, AK Steel Corp. Ret. Accumulation Pension Plan v. West, 128 S. Ct (2008)

70. Declaratory Judgments in Discrimination Cases
Ameritech Benefit Plan Comm. V. Commc’n Workers of Am., 220 F.3d 814 (7th Cir. 2000)

71. Summary Judgment in Employment Litigation
Memorandum Granting Summary Judgment, Smith- Crockett v. Bullard-Havens Technical High School, U.S. Dist. LEXIS (D.Conn. Nov. 26, 2008)
Ruling on Motion for Summary Judgment, Kwentoh v. State of Connecticut Dep’t of Children and Families Juvenile Training School, 2008 U.S. Dist. LEXIS (D.Conn. Dec. 2, 2008).

72. Constructive Termination
Mac’s Shell Serv. V. Shell Oil Products Co., 524 F.3d 33 (1st Cir. 2008)

73. ERISA – Experimental Chemotherapy
Summers v. Touchpoint Health Plan, Inc., 749 N.W.2d 182 (Wis. 2008)