Employment Cert Petitions Before US Supreme Court

The final two employment cases before the Supreme Court on Cert petitions to be decided on January 11, 2008 are James v. Metropolitan Government of Nashville and Progress Energy, Inc. v. Taylor.  James asks who, the judge or the jury, should decide if retaliatory actions are severe enough to violate Title VII, 42 U.S.C. 2000e et seq   Taylor relates to whether or not an employee can retroactively release claims under the Family and Medical Leave Act, 29 USC 2601 et seq.

More after the jump.

Title VII, 42 U.S.C. 2000e et seq, prevents an employer from discriminating against an employee because of that employee’s race, color, religion, sex or national origin.  This section also prohibits against an employee who complains about discrimination forbidden under Title VII.  The James cert petition  asks the Court to decide whether the jury or the judge should determine if an action is sufficiently serious as to violate Title VII.

Maralyn James worked as librarian for the Nashville Public Library.  For the first twenty-three years of her employment she worked as a “Librarian I” and received performance ratings of outstanding and above average.  In 1994 she was promoted to the position of “Librarian I-and-a-half.”  From 1996 until 2001, her performance reviews criticized the speed of her work.  In 2001, her supervisor gave her a deadline to catalog a collection of books.  James considered the deadline unfair and the resulting stress forced her to take a leave of absence.  In 2002, James’s cataloging speed increased, but still failed to meet the required level.  The stress of the job again forced James to take a disability leave.  The library offered to transfer/demote James to her previous position of “Librarian I.”  James refused the demotion.  James filed two claims with the EEOC alleging discrimination, the first in January 2002 and the second in April 2002. 

James filed suit alleging discrimination based on hostile work environment and retaliation, pointing to negative performance reviews and comments made by library officials after her EEOC complaints.  The jury found for James on the retaliation claim and awarded her damages.  The library moved for judgment under Federal Rule of Civil Procedure 50(a).  The motion was denied and the library appealed.  The court of appeals reversed the trial court’s ruling and granted the Rule 50(a) motion.  James filed a cert petition with the Supreme Court.  During the pendency of that petition, the Supreme Court decided  Burlington Northern & Santa Fe Railway Co. v. White (2006) ____ U.S. ____, 126 S.Ct. 2405,  holding that a retaliatory action is materially adverse, and hence actionable, if it "might have 'dissuaded a reasonable worker from making or supporting a charge of discrimination." Based on Burlington Northern, the Supreme Court reversed the Court of Appeals and remanded the case. 

On remand, the Court of Appeals again upheld the trial court's ruling granting the Rule 50(a) motion, finding that James did not present sufficient evidence for a jury to find retaliation.  James filed a second cert petition, asking the Supreme Court to find that a jury, not the judge, should determine whether retaliatory actions are severe enough to violate Title VII.  A copy of James’s Cert Petition is available here at Scotusblog. The library’s opposition and James’s reply brief are also available.

There does appear to be some split between the various Circuit Courts on who should decide this issue, so a Cert grant is possible.  A plaintiff ruling from the Supreme Court would make Rule 50(a) motions by employers less likely to succeed and would protect jury verdicts in favor of employees.

The second case, Progress Energy, Inc. v. Taylor, raises the question: can an employee retroactively waive claims under the Family Medical Leave Act, 29 U.S.C. 2601 et seq?

The FMLA gives eligible employees twelve weeks of unpaid leave to care for an immediate family member with a serious medical condition.  It also protects employees’ benefits and positions during their leave and gives employees the right to reinstatement upon their return to work.   The Cert Petition asks the Supreme Court to decide whether an employee can retroactively release FMLA claims against his or her former employer.

Plaintiff Barbara Taylor was a former employee of Carolina Power and Light Company (CP&L).  In 2000, she underwent extensive medical tests to evaluate swelling in her leg.  Taylor contends that CP&L failed to properly credit her leave as FMLA leave and that due to her FMLA leave she was given poor performance evaluations.  In 2001, Taylor was terminated as part of a reduction in force.  In exchange for $11,718 in extra compensation, Taylor released all claims and waived all rights against CP&L.  Two years after signing that release, Taylor filed suit against CP&L alleging violations of the FMLA.  The district court granted CP&L’s motion for summary judgment, finding that the FMLA only prevents the prospective waiving of FMLA claims, not the retroactive waiving of claims and that therefore Taylor had released all FMLA claims against CP&L.  The Court of Appeals issued two separate opinions (Taylor v. Progress Energy, Inc., (4th Cir. 2005) 415 F.3d 364 and Taylor v. Progress Energy, Inc., (4th Cir. 2007) 493 F.3d 454) reversing summary judgment and holding that the FMLA prevents both the prospective and the retroactive waiving of FMLA claims.

In its cert petition, the employer asks the Supreme Court to find that employees can retroactively sign away their rights to bring FMLA claims.  Such a ruling would mean Taylor’s signed release was valid and that Progress Energy’s motion for summary judgment should be granted.

While on first blush an order affirming the Court of Appeals would seems to be in employees' best interest, there is actually a conflict.

An order finding that employees cannot retroactively waive their FMLA would benefit any employee who has already signed a release, but now wishes to bring an FMLA claim.  Such an order would leave an employee free to pursue such a claims in court, because the previously signed waiver and release is invalid. 

On the other hand, such a finding would harm those employees who want to release their claims in exchange for an immediate payment.  It is often the case that employees don’t want to go through the time consuming process of filing a claim and waiting for any settlement or verdict but would rather receive an immediate, albeit typically much smaller, payment.  A ruling that employees cannot retroactively waive their FMLA cases would mean that an employee must either fully litigate a claim or must have the Department of Labor or a court sign off on any release or settlement.  Such a ruling would make the release process more time consuming and costly, potentially lessening the amount employees are given in exchange for a release.

Many of the appeals documents are available at Scotusblog, including Progress Energy’s Cert Petition (, Taylor’s brief in opposition and Progress Energy’s reply .  Additionally, numerous Amicus Briefs were filed in support of Progress Energy, including briefs from the Chamber of Commerce, the Equal Employment Advisory Council, the North Carolina Retail Merchants Association, the Society for Human Resource Management, and the Association of Corporate Counsel.

                                                                                         -- Michael Sachs

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