On December 16, 2024, NELA filed an amicus brief with the U.S. Supreme Court in Ames v. Ohio Department of Youth Services. The question presented is whether, to survive summary judgment, employees of so-called “majority” groups must show “background circumstances” that the employer discriminates against the majority as an additional element of their prima facie case under McDonnell Douglas Corp. v. Green. Under the authorship of renowned Supreme Court practitioner Eric Schnapper, NELA took the opportunity to remind the Court that all workers, and not just majority workers, can be harmed by lower courts’ overly rigid application of the McDonnell Douglas at the summary judgment stage. NELA urged the Court to hold that while McDonnell Douglas can be a useful tool in some cases and that plaintiffs have the right to proceed under that framework if they so choose, employees do not need to establish a prima facie case at all to survive summary judgment. Rather, the question at summary judgment should be, as it is in all cases, whether there is a genuine issue of material fact that could allow a reasonable jury to find in the plaintiff’s favor. In crafting this brief, NELA weighed many competing interests, … Read More
Amicus Briefs
Kenneth Moses v. United States Steel Corp.
On March 13, 2024, NELA joined the Western Pennsylvania Employment Lawyers Association and NELA-Eastern Pennsylvania in an amicus brief in support of the worker in Moses v. U.S. Steel (3rd Circuit). The brief addressed the numerous errors made by the lower court in granting summary judgment to U.S. Steel. Mr. Moses sued U.S. Steel, alleging race discrimination under 42 U.S.C. § 1981 and the Pennsylvania Human Relations Act, 43 Pa. Stat. § 955(a). The district court ignored both circuit and Supreme Court precedent, requiring that Mr. Moses show “pretext plus” in order to survive summary judgment. Additionally, the district court rationed evidence between the prima facie case stage and the pretext stage and relied on the testimony of another employee who felt that he personally had never been the victim of race discrimination by U.S. Steel. The brief points out not only the long-recognized evidentiary burden that plaintiffs alleging race discrimination must overcome, but the numerous controlling cases that require only evidence of a prima facie case and evidence of pretext in order to survive summary judgment. We are grateful to NELA Board Member Christine Elzer, Elzer Law Firm, LLC (Pittsburgh, PA) for drafting this important brief.… Read More
Stanley v. City of Sanford, Florida
On March 9, NELA, joined by NELP, filed an amicus brief with the Supreme Court in support of a grant of certiorari in Stanley v. City of Sanford, Florida. Karyn Stanley served for 20 years as a firefighter in Sanford, Florida, until taking disability retirement at the age of 47 due to Parkinsons Disease. Ms. Stanley sued, alleging that the city’s policy change (which ended her post-employment health benefits) discriminated against her on the basis of her disability under Title I of the Americans with Disabilities Act (ADA). The lower court dismissed, and the 11th Circuit affirmed, holding that “a former employee who does not hold or desire to hold an employment position cannot sue over discriminatory post-employment benefits.” This holding is in clear contradiction to the jurisprudence in other circuits.
In supporting a grant of cert, the brief argues that “this case is ideal for addressing the issue because the question presented is narrow: the Court need only address whether former employees can sue under Title I of the ADA.” Post-retirement benefits are hugely important for workers when making decisions about their employment, and workers with disabilities must have clarity on when they can rely on the important … Read More
Shipton v. Baltimore Gas and Electric
On September 25, NELA, the Institute, and A Better Balance jointly filed an amicus brief with the Fourth Circuit in the matter of Shipton v. BGE (No. 23-1360) urging the court to reject the “honest belief” defense in FMLA interference cases. The plaintiff in the case, Michael Shipton, was ostensibly terminated for misuse of FMLA leave, but his employer did not engage with any of the steps prescribed in the FMLA for dealing with concerns about fraud. Now the company has argued that they should not be liable for their actions because they had an “honest belief” that he had misused his FMLA leave when they terminated him. This claim cuts against the plain language of the FMLA, which only authorizes consideration of employer motivation for the purposes of determining liquidated damages. Although some courts have endorsed the use of the “honest belief” defense in FMLA retaliation cases, the Fourth Circuit has never sanctioned the defense, and should decline to do so now. NELA would like to thank Erika Jacobsen White of Joseph, Greenwald & Laake, P.A. and NELA President Carla Brown of Charlson Bredehoft Cohen Brown & Nadelhaft PC for their work on drafting and filing the brief.… Read More
Muldrow v. City of St. Louis
On September 6, NELA, joined by the National Women’s Law Center and the NAACP Legal Defense Fund, filed an amicus brief in the U.S. Supreme Court in Muldrow v. City of St. Louis. The brief argues that the 8th Circuit erred when finding that a police sergeant’s job transfer did not constitute gender discrimination. The brief also argues that this interpretation contradicts the congressional intent of the federal law and does not comport with the text of the statute. Highlighting the importance of non-economic aspects of a job, the brief contends that adverse actions of this type can also run afoul of the Court’s ruling in Brown v. Board of Education. NELA member Carolyn Wheeler, Katz Banks Kumin, LLP (DC) states “The issue here is a straightforward question of statutory construction. The statute prohibits discrimination on the basis of sex, race, national origin, or religion in the terms, conditions, or privileges of employment without any qualifying adjectives about a degree of harm the discrimination must cause. The discriminatory decision is what is unlawful and plaintiffs should be able to pursue such claims without the burden of proving the decision caused some level of “material” harm, which courts usually … Read More
Rodgers-Rouzier v. American Queen Steamboat Operating Company
On September 5, NELA filed an amicus brief in the 7th Circuit, supporting workers who had their FLSA claims dismissed in Rodgers-Rouzier v. American Queen Steamboat Operating Company. This case hinged on whether opt-in plaintiffs were in fact party plaintiffs and when the statute of limitations begins tolling for these plaintiffs. The brief highlights that requiring anything beyond written consent forms for a plaintiff to be classified as a “party plaintiff” would create a circuit split, putting the seventh circuit directly in contradiction with a number of other circuits and Supreme Court jurisprudence. Additionally, the brief notes that “the language of the FLSA, this Circuit’s caselaw, and the purpose of FLSA collective actions all support a rule that the statute of limitations for opt-in plaintiffs in an FLSA collective action is tolled on the date they file their written consent and become a party plaintiff to the action.” NELA is grateful to NELA Board Member Summer H. Murshid, Martha Burke and Connor Clegg, Hawks Quindel, S.C. (WI) and Clif Alexander and Lauren E. Braddy, Anderson Alexander, PLLC (TX) for drafting this important brief.… Read More
Harris v. FedEx
On July 21, NELA and the National Institute for Workers’ Rights, along with the Texas Employment Lawyers Association (TELA), filed an amicus brief in the 5th Circuit on behalf of the appellee in Harris v. FedEx. This case is FedEx’s appeal of a significant verdict against it under Section 1981 for retaliating against Ms. Harris when she complained about racial discrimination at work. Harris’ verdict was obtained by NELA members Brian P. Sanford and Elizabeth (B.B.) Sanford (The Sanford Firm, TX).
The amicus brief focused on FedEx’s claim that the court should have enforced the contractually-shortened statute of limitations contained in FedEx’s standard job application, which says that any claim needs to be brought within six months. Our brief argued that it was unreasonable to shorten Section 1981’s statute of limitations from four years, as specified in the statute, to just six months. In making this argument, we pointed both to Texas’ public policy interests in keeping access to courts generally and on contract claims specifically, and also explained that the practicalities of litigation and finding counsel meant that six months was far too short a time for prospective plaintiffs like Harris. Many thanks to NELA/TELA member Walt … Read More
Murray v. UBS Securities, LLC
On July 5, NELA joined the Anti-Fraud Coalition and Better Markets as amici in Murray v. UBS Securities, LLC, urging the U.S. Supreme Court to fully ensure safeguards against whistleblower retaliation. Petitioner Murray was fired after refusing to engage in illegal reporting and brought a case for unlawful retaliation under the Sarbanes-Oxley Act of 2002. Although Murray won at trial, the Second Circuit vacated the jury’s verdict, holding that to prove retaliation, Murray was required to show that UBS acted with retaliatory intent or discriminatory animus prompted by the whistleblowing activity.
Our amicus brief argues that the Second Circuit erred in its holding, which conflicts with both the plain language of the statute and the policy considerations behind the statute. The statute, which expressly provides that one alleging retaliation need only show that her protected activity was a ‘contributing factor’ in an adverse employment action, at which point the burden shifts to the employer to demonstrate, if possible, that it would have taken the adverse action even absent the protected behavior. Additionally, the congressional intent behind the statute was to ensure robust protections for whistleblowers. As the brief states, “The Second Circuit’s opinion below imposes an elevated burden on … Read More
Thomas v. JSTC
On May 26, NELA and Public Justice jointly filed an amicus brief in the Eleventh Circuit matter of Thomas v. JSTC (No. 22-14191), encouraging the court to distinguish the appropriate standard of review for approval of opt-in FLSA settlements from Rule 23 class action settlements. In this case, the lower court approved every aspect of a proposed settlement except separately negotiated payments to the named plaintiffs in exchange for a general release, on the grounds that such payments constituted inappropriate service awards under precedent set in a Rule 23 opt-out class action case. Although courts retain substantial discretion as to whether or not to approve a FLSA settlement, the amicus brief argues that the public policy rationales behind scrutinizing service awards in a Rule 23 class action are inapt for collective action payments. Where members have opted in, payments will not come out of the common fund, and the plaintiffs sign broader releases than the collective members, separate contractual payments to plaintiffs should not be scrutinized as if they are class action service awards. NELA would like to thank Shelby Leighton at Public Justice, and our NELA drafting team: Clif Alexander and Lauren Braddy of Anderson Alexander, PLLC(TX); Carl Fitz … Read More
Groff v. DeJoy
On March 6, 2023, NELA and the Institute jointly filed an amicus brief with the U.S. Supreme Court in Groff v. DeJoy (22-174), urging the court to strike a delicate balance for workers while reevaluating the current standard for providing religious accommodations as set forth in Hardison. The brief recognizes the need for clarification of the current Hardison de minimis standard, which was written in a context where undue hardship was not yet part of Title VII. NELA and the Institute argue that the court should revise the standard to require employers to show actual harm and reiterate the appropriate standard for summary judgment adjudication—two hurdles which are often difficult to overcome for religious employees seeking to receive reasonable accommodations for sincerely held religious beliefs. Additionally, the brief advocates for an undue hardship burden which takes into account the impact of accommodations on other employees, aiming to protect workers from discrimination by employers or colleagues under the guise of religious accommodations. NELA is deeply grateful to Professor Michael L. Foreman and the Penn State Law Civil Rights Appellate Clinic, who served as principal drafters of the brief, with editing support from NELA’s Amicus Advisory Council, NELA Program Director Ashley … Read More
Fitzgerald v. Roncalli High School, Inc.
On February 1, 2023, NELA, joined by the National Employment Law Project (NELP), filed an amicus brief on behalf of the Appellant in Fitzgerald v. Roncalli High School, Inc. (7th Cir.), urging the court to maintain the totality-of-the-circumstances test established in Hosanna-Tabor when determining if an employee is a “minister” in a religious organization. Michelle Fitzgerald, a guidance counselor at a Catholic high school, was fired after Roncalli administrators learned she was married to a woman. The district court relied solely on one factor, Fitzgerald’s employment contract when finding that she was a “minister” and therefore unable to avail herself of the protections of Title VII. NELA’s brief argues that the current totality-of-the-circumstances test has proven a workable standard, that properly balances religious freedom and workers’ right to be free from discrimination. The brief further points out the large numbers of workers who would potentially be open to discrimination in the workplace should the court adopt the one-factor test from the district court decision. NELA is deeply grateful to Professor Michael L. Foreman and the Penn State Law Civil Rights Appellate Clinic, who drafted the brief. … Read More
Avalos v. United States
On January 31, 2023, NELA signed on to an amicus brief filed by the Metropolitan Washington Employment Lawyers Association (MWELA), asking the Federal Circuit to hear Avalos v. United States en banc. Eleazar Avalos’ attorneys pushed for en banc review on behalf of the plaintiffs, federal employees who were denied compensatory damages for delayed payment of wages during the government shutdown of 2018–2019. The brief argues that the panel majority erred in carving out an extra-textual exception to the FLSA to relieve the government of liability when it failed to timely pay its employees due to a lack of appropriated funds. The brief argues that the Anti-Deficiency Act (ADA) does not exempt the government from paying liquidated damages under the FLSA. NELA is grateful to MWELA and NELA members Mark Hanna, Murphy Anderson PLLC (DC), Omar V. Melehy, Melehy Law (MD), and Alan R. Kabat, Bernabei & Kabat, PLLC (DC) for asking NELA to join their excellent brief. … Read More
