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Tag: Amicus

Amicus

NELA Amicus Brief: Mach Mining, LLC v. EEOC (U.S. Supreme Court)

On November 4, 2014, NELA joined the Impact Fund, AARP and other organizations to file an amicus brief in support of respondent EEOC in the case of Mach Mining, LLC v. EEOC, Case No. 13-1019, pending in the U.S. Supreme Court. The question presented in this case is: Whether and to what extent may a court enforce the Equal Employment Opportunity Commission’s duty under 42 U.S.C. § 2000e-5(b), (f)(1) to conciliate discrimination claims before filing suit. The amicus brief was drafted by NELA Amicus Advisory Council Co-Chair Michael L. Foreman and the Civil Rights Appellate Clinic at the Pennsylvania State University’s Dickinson School of Law, which he directs, and NELA members Jocelyn Larkin and Robert Schug at the Impact Fund.

The case arose in 2008 when a rejected female applicant for a mining position filed a charge of discrimination with the EEOC, alleging that Mach Mining, which had never hired a woman for this position, refused to hire her based on her gender. After conducting an investigation, the EEOC found reasonable cause to believe Mach Mining had discriminated against a class of women who applied for mining-related jobs, and invited it to conciliate. From late 2010 to late 2011, … Read More

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NELA Amicus Brief: Marzuq v. Cadete Enterprises (1st Circuit)

On October 29, 2014, NELA joined the National Employment Law Project (NELP) and other organizations to request leave to submit an amicus brief in support of plaintiffs-appellants in Marzuq v. Cadete Enterprises (d/b/a Dunkin’ Donuts), No. 14-1744, pending in the U.S. Court of Appeals for the First Circuit. The issues in this case fall within NELA’s amicus priority of confronting wage theft and compensable time violations. Plaintiffs are represented by NELA member Shannon Liss-Riordan, Lichten & Liss-Riordan, P.C. (Boston, MA). The amicus brief was drafted by NELA member Peter Winebrake, Winebrake & Santillo, L.L.C. (Dresher, PA), and Anthony Mischel of NELP.

Plaintiffs, former managers at Dunkin’ Donuts stores, are seeking overtime wages under the Fair Labor Standards Act. Managers are expected to work 48 hours per week and often work more than 60 hours. Conversely, hourly employees are prohibited from working extra hours. The issue is whether the managers, who spend most of their work day performing the same work as the hourly employees, including serving customers, were misclassified as exempt employees and entitled to overtime pay. As is common in the fast food industry, the managers did not earn much more than the hourly employees.

Defendants moved for summary … Read More

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NELA Amicus Brief: Integrity Staffing Solutions, Inc. v. Busk (U.S. Supreme Court)

On August 11, 2014, NELA filed an amicus brief in support of Respondents in the U.S. Supreme Court in Integrity Staffing Solutions, Inc. v. Busk, No. 13-433, a Fair Labor Standards Act (FLSA) case. NELA members Mark R. Thierman and Eric Schnapper represent Respondents Jesse Busk and Laurie Castor and others similarly situated. The question presented is whether the time employees spend in security screenings is compensable under the FLSA, as amended by the Portal-to-Portal Act of 1947. The issues raised in this case fall squarely within NELA’s current amicus priorities of challenging wage theft and compensable time violations.

Respondents Busk and Castro were Amazon.com warehouse workers employed by Petitioner Integrity Staffing Solutions, Inc. They seek back pay, overtime, and double damages under the FLSA for time spent in security screenings after the end of their work shifts. After clocking out, these workers had to submit to a mandatory and rigorous anti-theft screening process similar to that found at airport security check points. They were required to remove all belongings from their person, such as wallets, keys and belts, and then pass through metal detectors before being allowed to leave the facility. It was not unusual to have to … Read More

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NELA Amicus Brief: Graves v. Deutsche Bank Securities, Inc. (U.S. Supreme Court)

On July 28, 2014, NELA filed an amicus brief in support of a petition for certiorari in the U.S. Supreme Court in Graves v. Deutsche Bank Securities, Inc., No. 13-1546. The petition was filed by NELA members Richard T. Seymour and Eric Schnapper on behalf of petitioner Daniel B. Graves. The issue in this age discrimination case is whether courts should grant summary judgment by relying on inferences that excuse all but the most egregious evidence of discrimination. NELA scrutinizes requests for amicus briefs at the petition stage closely. One was warranted here because this issue falls squarely within NELA’s current amicus priorities of combatting summary judgment abuse and challenging judicially created doctrines that erect barriers to jury trial access to plaintiffs alleging employment discrimination.

Plaintiff Graves held the positions of both director and managing director at defendant Deutsche Bank with responsibility for maintaining relationships with major corporate clients. Graves complained that some of his accounts being were re-assigned to younger bankers with the effect of significantly decreasing his annual bonus. He was terminated days before the bonuses were scheduled to be paid. Graves testified that his supervisor said that the dismissal was not performance based, but motivated because … Read More

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NELA Amicus Brief: Turner V. Inzer (11th Circuit)

On July 21, 2014, NELA filed a motion for leave and submitted a proposed amicus curiae brief in Turner v. Inzer, Case No. 14-11357, pending in the U.S. Court of Appeals for the Eleventh Circuit. Defendant Inzer refused to consent to the filing of the amicus brief. The major issues on appeal are whether: (1) attorneys’ fees were properly awarded to defendant under Christianburg Garment Co. v. EEOC and Sullivan v. Sch. Bd. Of Pinellas Cty.; and (2) attorneys’ fees were calculated properly pursuant to Fox v. Vice. Counsel for plaintiff Turner is NELA member Lisa Lambert, Of Counsel, Law Office of Marie A. Mattox, P.A., Tallahassee, FL.

Plaintiff Cynthia Turner brought claims for wrongful termination and retaliation under state and federal whistleblower statutes and Title VII. Summary judgment was granted for defendant on all claims. The court held that plaintiff did not meet the first prong of the whistleblower retaliation claim and failed to make out a prima facie case under Title VII. Plaintiff appealed and the Eleventh Circuit affirmed per curiam. Thereafter, the district court granted defendant’s request for attorneys’ fees on the Title VII race discrimination and retaliation claims, but denied the request … Read More

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NELA Amicus Brief: Gabriel v. Alaska Electrical Pension Fund (9th Circuit)

On July 21, 2014, NELA and AARP submitted an amicus curiae brief in Gabriel v. Alaska Electrical Pension Fund, No. 12-35458, pending in the U.S. Court of Appeals for the Ninth Circuit, in support of plaintiff Gregory R. Gabriel’s petition for rehearing en banc. This case involves whether remedies under the Employee Retirement Income Security Act (ERISA) are available when a pension plan represents that a plan participant is eligible for benefits, pays those benefits for several years, and thereafter discontinues them. The Ninth Circuit panel opinion, authored by Judge Sandra S. Ikuta and joined by Chief Judge Alex Kozinski, limited the scope of equitable remedies, creating a split with every other circuit court that has reviewed this issue, as Judge Marsha L. Berzon noted in her dissenting opinion.

Plaintiff-Appellant Gregory R. Gabriel received eleven years of service credit from Defendant-Appellee Alaska Electric Pension Fund, which vested him under its pension plan. Gabriel was advised that he would receive monthly pension benefits of $1,236. He subsequently retired and began receiving benefits. Several years later, the Fund terminated the benefits, and threatened to seek reimbursement for the benefits paid, because it determined that Gabriel should have received credit for … Read More

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NELA Amicus Brief: Rochow v. Life Insurance Co. of North America (6th Circuit)

On May 2, 2014, NELA joined AARP in submitting an amicus curiae brief in Rochow v. Life Insurance Co. of North America, No. 12-2074, pending before the U.S. Court of Appeals for the Sixth Circuit, sitting en banc, in support of plaintiff the Estate of Daniel Rochow. John J. Cooper of the Cooper Law Firm in Troy, Michigan, and Erik W. Scharf of the Scharf Appellate Group in Miami, Florida, represent the plaintiff. This case concerns the scope of equitable remedies available under ERISA § 502(a)(3), particularly whether defendant must disgorge profits gained from wrongfully retained benefits upon a finding of breach of fiduciary duty.

Plaintiff Daniel Rochow was insured under Life Insurance Co. of North America’s (LINA) disability plan. In 2001, Rochow began experiencing short-term memory loss, was demoted from President to sales executive and shortly thereafter terminated. A few months later, Rochow was diagnosed with a rare virus that causes brain trauma. LINA denied Rochow’s application for long-term disability benefits. After three administrative appeals, Rochow filed suit, challenging the denial of benefits and alleging breach of fiduciary duties. The district court held that LINA’s denial was arbitrary and capricious, and awarded Rochow benefits. On appeal, the … Read More

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NELA Amicus Brief: In Jacob v. Duane Reade, Inc. (2nd Circuit)

On April 22, 2014, NELA joined the Impact Fund and 24 other nonprofit organizations that advocate for workers’ rights, including the Legal Aid Society, LatinoJustice PRLDEF, the Legal Aid Society-Employment Law Center, the National Employment Law Project and Public Justice, in submitting an amicus curiae brief in the U.S. Court of Appeals for the Second Circuit in support of plaintiffs Mani Jacob and Lesleena Mars and similarly situated assistant managers at Duane Reade drugstores. NELA members Adam T. Klein and Molly Brooks of Outten & Golden LLP represent the plaintiffs and putative class. The issues raised in this amicus brief fall within NELA’s current amicus priority of class action preservation, i.e., “minimizing the impact of recent adverse decisions limiting the use of class and collective action mechanisms to vindicate workplace rights, especially in wage and hour cases.”

Jacob and Mars alleged that they and 746 current and former assistant store managers were misclassified as exempt employees by Duane Reade and not paid overtime in violation of the Fair Labor Standards Act and New York Labor Law. The U.S. District Court for the Southern District of New York certified a state law class under Rule 23(b)(3), concluding that substantial evidence showed … Read More

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NELA Amicus Brief: Wang v. The Hearst Corporation (2nd Circuit)

On March 3, 2014, NELA joined the National Employment Law Project (NELP), the Economic Policy Institute, the Writers Guild of America East, Ross Perlin and Professor David Yamada in submitting an amicus curiae brief in the U.S. Court of Appeals for the Second Circuit in support of plaintiff Xuedan Wang and similarly situated unpaid interns who were not compensated for their hours worked at The Hearst Corporation in violation of the Fair Labor Standards Act and New York state law. NELA members Adam Klein and Rachel Bien of Outten & Golden LLP represent the plaintiff and potential class. The issues raised by this case fit squarely within NELA’s amicus priorities of protecting workers’ wages and opposing wage theft.

The Hearst Corporation is one of the largest publishers of monthly magazines in the United States. Since 2008, Hearst has sought to reduce overhead and costs by eliminating paid positions and, at some magazines, directing that unpaid interns be hired. Hearst engaged over 3,000 interns from 2007 to 2013. Many of the interns worked more than 40 hours per week and Hearst did not dispute that some of the duties performed by the interns had been and were now being done by … Read More

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NELA Amicus Brief: DeMasters v. Carilion Clinic (4th Circuit)

On February 25, 2014, NELA filed an amicus curiae brief in the U.S. Court of Appeals for the Fourth Circuit in support of plaintiff DeMasters who was wrongfully terminated in retaliation for using established internal complaint mechanisms to notify Carilion Clinic about the sexual harassment of a co-worker by a supervisor. The court in the Western District of Virginia granted Carilion’s Rule 12(b)(6) motion to dismiss, holding that DeMasters failed to state a plausible claim of retaliation under Title VII because he did not produce sufficient facts to establish that he engaged in a protected activity. The circumstances surrounding DeMasters’ termination were egregious. DeMasters worked as an Employee Assistance Program (EAP) counselor for Carilion Clinic for more than five years. In October 2008, DeMasters reported to Carilion’s human resources department that another employee, John Doe, had confided to DeMasters that Doe was being subjected to harassment. This was well before Doe filed an EEOC charge and subsequent lawsuit. In August 2011, shortly after Doe’s lawsuit was settled, DeMasters was questioned by Carilion managers about his involvement with Doe in 2008. DeMasters was asked why he had not taken the “pro-employer side” concerning Doe’s complaints. DeMasters also was told that he … Read More

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NELA Amicus Brief: Roach v. T. L. Cannon Corp. (2nd Circuit)

In Roach v. T. L. Cannon Corp., the district court denied class certification of a putative class of employees of an Applebee’s restaurant chain who were denied wages to which they were entitled under federal and New York law based upon the U.S. Supreme Court’s recent decision in Comcast v. Behrend, 133 S. Ct. 1426, 185 L. Ed. 2d 515 (2013). The court denied class certification holding that the damages calculations of individual class members would be “highly individualized,” and thus could not meet the “predominance” prong of Rule 23(b)(3).

NELA’s amicus brief in the U.S. Court of Appeals for the Second Circuit challenges the district court’s reading of Comcast because it upends long standing and widespread principles of black letter law by imposing a new requirement that class certification depends on the existence of class wide theory as to both liability and damages. We argue that by applying Comcast in this fashion, the district court effectively transformed the wage and hour laws on this matter, adopted an erroneous reading of Comcast, and established a sweeping rule that, if accepted, would fundamentally alter the contours of class litigation under Rule 23(b)(3). Our brief addressed the significant implications … Read More

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NELA Amicus Brief: EEOC v. Abercrombie & Fitch Stores, Inc. (10th Circuit)

NELA filed an amicus brief in EEOC v. Abercrombie & Fitch Stores, Inc. in support of the U.S. Equal Employment Opportunity Commission’s petition for rehearing en banc before the U.S. Court of Appeals for the Tenth Circuit, in which the panel reversed a grant of summary judgment to the EEOC in this religious accommodation case, and granted summary judgment in favor of Abercrombie & Fitch. In a 93-page opinion, containing a strong dissent, the majority dismissed the plaintiff’s religious accommodation claim because she never informed Abercrombie that she wore her hijab for religious reasons and needed an accommodation for that practice due to a conflict between the practice and Abercrombie’s clothing policy. The assistant manager who interviewed the plaintiff, however, assumed she was a Muslim and wore a hijab for that reason. The plaintiff was never made aware of Abercrombie’s clothing policy, and thus was unaware of any conflict between that policy and wearing a hijab. The EEOC’s petition focuses on the Tenth Circuit’s creation of a rigid prima facie case requirement in this case, which is contrary to Tenth Circuit and U.S. Supreme Court precedent. Its brief also addressed the court’s requirement that the individual must be the source … Read More

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