2.24.2006

3d Circuit Weighs in on Split re Cognizability of Retaliation Claims Predicated on Hostile Work Environment under 42 U.S.C. § 2000e-3(a)

Per Jensen v. Potter, 435 F.3d 444 (3d Cir. Jan 31, 2006):

The threshold question is whether a retaliation claim predicated upon a hostile work environment is cognizable under 42 U.S.C. § 2000e-3(a). Jensen says it is, the Postmaster says it isn't, and our sister circuits are split. A majority has held that the statute prohibits severe or pervasive retaliatory harassment. See Noviello v. City of Boston, 398 F.3d 76, 90 (1st Cir.2005); Von Gunten v. Maryland, 243 F.3d 858, 866 (4th Cir.2001); Ray v. Henderson, 217 F.3d 1234, 1244-45 (9th Cir.2000); Richardson v. N.Y. State Dep't of Corr. Serv., 180 F.3d 426, 446 (2d Cir.1999); Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1264 (10th Cir.1998); Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir.1998); Knox v. Indiana, 93 F.3d 1327, 1334-35 (7th Cir.1996); see also Morris v. Oldham County Fiscal Court, 201 F.3d 784, 791-92 & n. 8 (6th Cir.2000) (holding that retaliatory harassment by a supervisor is actionable but "tak[ing] no position on whether an employer can be liable for coworkers' retaliatory harassment"). The Fifth and Eighth Circuits, however, limit § 2000e-3(a) to "ultimate employment decisions," and thus do not view harassment to be within the statute's reach. See Manning v. Metropolitan Life Ins. Co., 127 F.3d 686, 692 (8th Cir.1997); Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir.1997).

While our Court has never addressed the precise question, the logic of our decision in Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir.1997), points toward the majority approach. In Robinson, we held that "[r]etaliatory conduct other than discharge or refusal to rehire" violates Title VII when it "alters the employee's 'compensation, terms, conditions, or privileges of employment,' deprives him or her of 'employment opportunities', or 'adversely affect[s] his [or her] status as an employee.' " Id. at 1300 (quoting 42 U.S.C. § 2000e-2(a)) (alterations in original). Put another way, § 2000e-3(a) prohibits a quantum of discrimination coterminous with that prohibited by § 2000e-2(a). Id. at 1300-01; see also Von Gunten, 243 F.3d at 865 (rejecting the Fifth Circuit's ultimate employment decision standard because "conformity between the provisions of Title VII is to be preferred") (internal quotation omitted).

Under § 2000e-2(a), the cognizability of a discrimination claim founded upon a hostile work environment is well-established. See, e.g., Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (sex); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (same); Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir.2005) (race); Cardenas v. Massey, 269 F.3d 251, 260 (3d Cir.2001) (national origin); Abramson v. William Paterson Coll. of New Jersey, 260 F.3d 265, 276-77 n. 5 (3d Cir.2001) (religion). The statutory basis for these claims is the notion that discriminatory ridicule or abuse can so infect a workplace that it alters the terms or conditions of the plaintiff's employment. See Meritor, 477 U.S. at 67, 106 S.Ct. 2399. If harassment can alter the terms or conditions of employment under § 2000e-2, then Robinson teaches that the same is true under § 2000e-3. See Robinson, 120 F.3d at 1300-01. We thus hold that both provisions can be offended by harassment that is severe or pervasive enough to create a hostile work environment.

Seventh Circuit Notes Split re Permissibility of "Official" Plan Administrator and "De Facto" Administrator in ERISA Context

Per Rud v. Liberty Life Assur. Co. of Boston, --- F.3d ----, 2006 WL 399149 (7th Cir. Feb. 22, 2006):

It may seem odd that Liberty Life should be administering the plan, when Andersen is the plan administrator. The oddness is dissipated by recognizing that administration is divided. Andersen decides who is eligible to participate in the plan and explains the plan to its employees, but the determination of eligibility to receive benefits under the plan is confided to Liberty Life. This division gives the insurance company discretionary authority over claim applications, making it an ERISA fiduciary.

We are mindful of the circuit split over the question whether there can be, alongside the official plan administrator, a "de facto" administrator. Hall v. Lhaco, Inc., 140 F.3d 1190, 1195 (8th Cir.1998). The courts that say "no" are worried about the confusion that can result if decisions are being made by someone (usually the employer) who is not designated as the plan administrator. Our court, while aware of the potential for confusion, see Riordan v. Commonwealth Edison Co., 128 F.3d 549, 551 (7th Cir.1997), has suggested that equitable estoppel might sometimes justify treating someone else as the plan administrator. "We can imagine a case in which the plan sponsor would be estopped to deny that it was the administrator; the district judge may have thought this such a case. If UOP's legal department had told Jones's lawyer to forget about the Committee and direct all his document requests to the legal department, and if in reliance on this advice the lawyer had forgone an opportunity to obtain the documents from the plan administrator and Jones had suffered a harm as a result, the elements of equitable estoppel would be present." Jones v. UOP, 16 F.3d 141, 144 (7th Cir.1994). But maybe it's wrong to get hung up on who is (are) the plan administrator(s). Maybe the right question to ask is whether the particular defendant made a discretionary determination concerning the plaintiff's entitlement to plan benefits.

2.17.2006

Fifth Circuit Notes Split Re Whether Pending Labor Certification Application Amounts To Good Cause For A Continuance before Immigration Judge

Per Ali v. Gonzales, --- F.3d ----, 2006 WL 337456 (5th Cir. Feb 15, 2006):

Ali failed to make a showing before the IJ that his labor certification application was filed on or before April 30, 2001. At his hearing before the IJ on December 2, 2003, Ali claimed that he had a labor certification pending. The IJ granted a seventh continuance until January 6, 2004 and specifically informed Ali that he would need to produce evidence or written applications relating to labor certification before meriting any further relief on that ground. Ali did not do so. Accordingly, the IJ's decision to deny a further continuance was not an abuse of discretion. [FN2]

Footnote 2: Because there was no showing that Ali's application was timely filed, we again "decline to further address the persuasiveness of the reasoning in Subhan." (Nizar) Ali, 2006 WL 73613, at *3. We note, however, that there is a Circuit split as to whether evidence of a timely filed, pending labor certification application amounts to good cause for a continuance. The Eleventh Circuit has rejected the Seventh Circuit's position that it does. See Zafar v. United States Atty. Gen., 426 F.3d 1330, 1135-36 (11th Cir.2005); Pirzada v. U.S. Atty. Gen., 2006 WL 167454 (11th Cir. Jan.24, 2006) (unpublished).

2.13.2006

Elevnth Circuit Notes Split Re Scope of Jurisdictional Bar of 28 U.S.C. § 1252(a)(2)(B)(ii)

Per U.S. v. U.S. Atty. Gen., Slip Copy, 2006 WL 177583 (11th Cir. Jan. 25, 2006):

In his opening brief, Roos states the issue on appeal as follows: "Whether the [BIA] erred in summarily affirming the Immigration Judge's denial of [his] ... Petition to Remove Conditions on Residence ... and terminating his status as a lawful permanent resident where [he] was erroneously made to carry the burden of proof in review of his petition before the Immigration Judge...." Petitioner's Brief at 1. The Attorney General raised a jurisdictional challenge to Roos' appeal based on 8 U.S.C. § 1252(a)(2)(B)(ii).

Section 1252(a)(2)(B)(ii) deprives this Court of jurisdiction to review a "decision or action of the Attorney General ... the authority for which is specified under [8 U.S.C. § 1151-1378] to be in the discretion of the Attorney General...." 8 U.S.C. § 1252(a)(2)(B)(ii); see also Zafar v. U.S. Att'y Gen., 426 F.3d 1330, 1334 (11th Cir.2005). The decision to waive the joint petition requirement and remove the conditional basis of an alien's permanent resident status is vested in the Attorney General's discretion. See 8 U.S.C. § 1186a(c)(4) ("The Attorney General, in the Attorney General's discretion, may remove the conditional basis of the permanent resident status for an alien who fails to meet the requirements of paragraph (1) ....") (emphasis added). There is a circuit split as to whether the jurisdictional bar of § 1252(a)(2)(B)(ii) also precludes review of the threshold determination that the marriage was "entered into in good faith by the alien spouse." Compare Assad v. Ashcroft, 378 F.3d 471, 475 (5th Cir.2004) and Urena- Tavarez v. Ashcroft, 367 F.3d 154, 157--61 (3rd Cir.2004) with Oropeza-Wong v. Gonzales, 406 F.3d 1135, 1141--43 (9th Cir.2005) and Cho v. Gonzales, 404 F.3d 96, 98--102 (1st Cir.2005).

We need not reach that issue, however, because in response to the Attorney General's jurisdictional argument, Roos made clear that he “is not seeking a review of a substantive issue (that the denial was based on the Immigration Judge's finding that Mr. Roos' marriage was not bona fide) that is within the discretion of the Attorney General but rather a legal issue (whether the burden of proof was incorrectly placed upon Mr. Roos).” Reply Brief at 5.

2.09.2006

Seton Hall Circuit Review Publishes "First Impressions"

The Seton Hall Circuit Review has recently published an overview of issues of first impression identified by each of the federal courts of appeals entitled "First Impressions". The citation is
2 Seton Hall Circuit Review 175 (Fall 2005).

2.06.2006

Federal Circuit Weighs in on Split Re Authority to Invocate Deliberative Process Privilege

Per the Federal Circuit in Marriott Intern. Resorts, L.P. v. U.S., --- F.3d ----, 2006 WL 258458 (Fed. Cir. Feb 03, 2006):

The "Agency head" requirement originated in the Supreme Court's United States v. Reynolds, 345 U.S. 1, 7 (1953) opinion, which involved tort claims stemming from a late 1940s Air Force plane crash. 345 U.S. at 2-3. In Reynolds, the court upheld the Secretary of the Air Force's refusal to turn over various military documents as privileged under the "military and state secrets privilege." Id. at 7. Reynolds noted that the privilege was not to be lightly invoked and thus required a "formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer." Id. at 7- 8 (emphasis added). This passage in Reynolds gave rise to the "Agency head" invocation rule.

Unlike Reynolds, however, the present case involves the deliberative process privilege, not the military and state secrets privilege. On this point, our sister circuits have split over whether the Agency head invocation rule outlined in Reynolds applies to the deliberative process privilege as well as the military and state secrets privilege. See Dep't of Energy v.. Brett, 659 F.2d 154 (Temp.Emer.Ct.App.1981) (holding the trial court erred in ruling the deliberative process privilege could only be invoked by an Agency head) ; Landry v. Fed. Deposit Ins. Corp., 204 F.3d 1125, 1135 (D.C.Cir.2000) (commenting that lesser officials can invoke the deliberative process and law enforcement privileges); Branch v. Phillips Petroleum Co., 638 F .2d 875, 882-83 (5th Cir.1981) (commenting that, while Reynolds indicates Agency head invocation is required, the Equal Employment Opportunities Commission (EEOC) sufficiently complied when the director of its Houston office, a subordinate, invoked the privilege on the EEOC's behalf). Contra United States v. O'Neill, 619 F.2d 222, 225 (3d Cir.1980) (rejecting invocation of executive privilege by an attorney rather than the department head). For the following reasons, this court determines the majority rule, as explained by the United States Court of Appeals for the District of Columbia Circuit in Landry, applies in this circuit.

2.01.2006

Third Circuit Weighs in on Split re Whether a Retaliation Claim Predicated upon a Hostile Work Environment Is Cognizable under 42 U.S.C. § 2000e-3(a)

Per the Third Circuit in Jensen v. Potter,--- F.3d ----, 2006 WL 224002 (3d Cir. Jan. 31, 2006):

The threshold question is whether a retaliation claim predicated upon a hostile work environment is cognizable under 42 U.S.C. § 2000e-3(a). Jensen says it is, the Postmaster says it isn't, and our sister circuits are split. A majority has held that the statute prohibits severe or pervasive retaliatory harassment. See Noviello v. City of Boston, 398 F.3d 76, 90 (1st Cir.2005); Von Gunten v. Maryland, 243 F.3d 858, 866 (4th Cir.2001); Ray v. Henderson, 217 F.3d 1234, 1244-45 (9th Cir.2000); Richardson v. N.Y. State Dep't of Corr. Serv., 180 F.3d 426, 446 (2d Cir.1999); Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1264 (10th Cir.1998); Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir.1998); Knox v. Indiana, 93 F.3d 1327, 1334-35 (7th Cir.1996); see also Morris v. Oldham County Fiscal Court, 201 F.3d 784, 791-92 & n.8 (6th Cir.2000) (holding that retaliatory harassment by a supervisor is actionable but "tak[ing] no position on whether an employer can be liable for coworkers' retaliatory harassment"). The Fifth and Eighth Circuits, however, limit § 2000e-3(a) to "ultimate employment decisions," and thus do not view harassment to be within the statute's reach. See Manning v. Metropolitan Life Ins. Co., 127 F.3d 686, 692 (8th Cir.1997); Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir.1997).

While our Court has never addressed the precise question, the logic of our decision in Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir.1997), points toward the majority approach. In Robinson, we held that "[r]etaliatory conduct other than discharge or refusal to rehire" violates Title VII when it "alters the employee's 'compensation, terms, conditions, or privileges of employment,' deprives him or her of 'employment opportunities', or 'adversely affect[s] his [or her] status as an employee." ' Id. at 1300 (quoting 42 U.S.C. § 2000e-2(a)) (alterations in original). Put another way, § 2000e-3(a) prohibits a quantum of discrimination coterminous with that prohibited by § 2000e-2(a). Id. at 1300-01; see also Von Gunten, 243 F.3d at 865 (rejecting the Fifth Circuit's ultimate employment decision standard because "conformity between the provisions of Title VII is to be preferred") (internal quotation omitted).

Under § 2000e-2(a), the cognizability of a discrimination claim founded upon a hostile work environment is well-established. See, e.g., Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (sex); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986) (same); Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir.2005) (race); Cardenas v. Massey, 269 F.3d 251, 260 (3d Cir.2005) (national origin); Abramson v. William Paterson Coll. of New Jersey, 260 F.3d 265, 276-77 n.5 (3d Cir.2001) (religion). The statutory basis for these claims is the notion that discriminatory ridicule or abuse can so infect a workplace that it alters the terms or conditions of the plaintiff's employment. See Meritor, 477 U.S. at 67. If harassment can alter the terms or conditions of employment under § 2000e-2, then Robinson teaches that the same is true under § 2000e-3. See Robinson, 120 F.3d at 1300-01. We thus hold that both provisions can be offended by harassment that is severe or pervasive enough to create a hostile work environment.

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