D. Md. Notes Split Re Whether Incidents that Occur Outside of the Office Contribute to a Hostile Work Environment

Per Reed v. Airtran Airways, 531 F.Supp.2d 660 (D. Md. Jan. 22, 2008):

The circuits are split on whether incidents that occur outside of the office contribute to a hostile work environment. See e.g., Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 510-11 (5th Cir.2003) (concluding that “a harassment claim, to be cognizable, must affect a person's working environment” and excluding supervisors' comments over the phone and in writing during a period when plaintiff was not working); cf. Crowley v. L.L. Bean, Inc., 303 F.3d 387, 409 (1st Cir.2002) (permitting non-workplace conduct as evidence that the behavior was motivated by animus toward the protected class-in that case, women).


D. Hawai'i Notes Split Re Whether Courts Have Jurisdiction to Enforce Private Employer Settlement Agreements Prior to EEOC Involvement

Per Munoz v. England, Slip Copy, 2008 WL 723596 (D. Hawai‘i Mar. 18, 2008):

The court recognizes the circuit split regarding whether courts have jurisdiction to enforce private employer (as opposed to federal agency) settlement agreements reached prior to EEOC involvement, i.e., “predetermination settlement agreements.” See Lindstrom v. United States, 510 F.3d 1191, 1195 n. 5 (10th Cir.2007) (collecting cases); Kraft v. Johanns, 2007 WL 2212890, at * 13 (D.N.D. Jul.31, 2007) (same). The Ninth Circuit has determined that in the private sector, “[g]enuine investigation, reasonable cause determination and conciliation are jurisdictional conditions precedent to suit....” E.E.O.C. v. Pierce Packing Co., 669 F.2d 605, 608 (9th Cir.1982); see also Cook v. City of Pomona, 884 F.Supp. 1457, 1462-63 (C.D.Cal.1995) (applying Pierce Packing Co. to find that an action seeking enforcement of a settlement agreement between two private parties was not brought under Title VII, but was rather “merely an action to enforce a private settlement agreement” governed by state law).


N.D. Cal. Notes Split Re Eighth Amendment Recognition of De Minimis Uses of Force against Prisoners

Per Sweets v. Contra Costa County Bd. of Supervisors, Slip Copy, 2008 WL 728551 (N.D. Cal. Mar. 17, 2008:

Every malevolent touch by a prison guard does not give rise to a federal cause of action. The Eighth Amendment's prohibition of cruel and unusual punishment necessarily excludes from constitutional recognition de minimis uses of physical force. Hudson, 503 U.S. at 9-10. The circuits are split regarding whether a prisoner must prove that he suffered more than a de minimis injury in order to prevail on an excessive force claim. Compare Brooks v. Kyler, 204 F.3d 102, 108 (3d Cir.2000) (holding that “absence of objective proof of non- de minimis injury does not alone warrant dismissal.”) and Moore v. Holbrook, 2 F.3d 697, 700 (6th Cir.1993) (“No actual injury needs to be proven to state a viable Eighth Amendment claim.”) with Gomez v. Chandler, 163 F.3d 921, 924 (5th Cir.1999) (holding that “a prisoner must have suffered from the excessive force a more than de minimis injury”) and Norman v. Taylor, 25 F.3d 1259, 1263 (4th Cir.1994) ( en banc ) (absent most extraordinary circumstances plaintiff cannot prevail if his inury is de minimis ), cert denied, 513 U.S. 1114 (1995). The Ninth Circuit has not addressed directly this issue. However, it has suggested that a prisoner need not demonstrate more than de minimis injury to state an Eighth Amendment claim. See Oliver v.. Keller, 289 F.3d 623, 628 (9th Cir2002) (clarifying that adoption of the physical injury standard under 42 U.S.C. § 1997e(e) does not require that “the injury must be more than de minimis” ).


Sixth Circuit Weighs in on Split Re Whether 1991 Amendment to Sec. 1981 Created Action against State Actors

Per Arendale v. City of Memphis, --- F.3d ----, 2008 WL 731226 (6th Cir. Mar. 20, 2008):

While § 1981 does not expressly afford a cause of action to private parties, the Supreme Court held in Runyon v. McCrary, 427 U.S. 160 (1976), that private defendants may be held liable under its provisions. Id. at 174-175. Plaintiff claims that § 1981 also contains an implicit cause of action against municipalities that engage in racial discrimination in employment. In Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989), however, the Supreme Court held that § 1981's implicit cause of action does not extend to suits brought against state actors. Id. at 732. While Plaintiff argues that a 1991 amendment to § 1981 overruled Jett, Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071, 1071-72 (1991), we disagree.

. . .

The circuits are split on whether subsection (c) creates a private cause of action against state actors, thus overruling the Supreme Court's decision in Jett. Compare id. with Bolden v. City of Topeka, 441 F.3d 1129, 1137 (10th Cir.2006) (“[S]ubsection (c) ... hardly confronts the holding in Jett.”); Butts v. County of Volusia, 222 F.3d 891, 894 (11th Cir.2000) ( “[Section] 1981 makes clear that the section creates a right that private or state actors may violate but does not itself create a remedy for that violation.”); Dennis v. County of Fairfax, 55 F.3d 151, 156 n. 1 (4th Cir.1995) (“[S]ubsection (c) did not purport to overrule Jett's holding with respect to municipal liability....”). In order to determine which side of this split the Sixth Circuit will join, this Court must determine whether subsection (c) “displays an intent to create not just a private right but also a private remedy.” Sandoval, 532 U.S. at 286. Such an inquiry reveals that § 1981(c) does not provide Plaintiff with the cause of action he seeks.

. . .

[W]e conclude that § 1981(c) was directed at preserving the Supreme Court's decision in Runyon, not, as Plaintiff argues, at overruling Jett.


D. Mass Notes Split Re Whether Title II of ADA Extends to the Employment Context

Per Brown v. Massachusetts Office on Disability, Slip Copy, 2008 WL 687412 D. Mass. Mar. 07, 2008):

Plaintiff next claims pursuant to Title II of the ADA, which provides in relevant part, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Although plaintiff invokes Title II of the ADA, the Complaint cites to sections of Title I of that act to claim protection from employment discrimination. There is a split among the circuits whether the protections of Title II extend to the employment context. See Currie v. Group Ins. Comm'n, 290 F.3d 1, 6-7 (1st Cir.2002) (declining to decide the issue); Carmona-Rivera v. Puerto Rico, 464 F.3d 14, 17 (1st Cir.2006) (same).


9th Circuit Notes Split Re Whether Illegally Seized Property Must Be Suppressed when It Is the Object of a Forfeiture

Per U.S. v. $493,850.00 in U.S. Currency, --- F.3d ----, 2008 WL 659574 (9th Cir. Mar. 13, 2008):

We note that circuit courts are split on the issue whether and to what extent illegally seized property must be suppressed when it is the object of a forfeiture action. David B. Smith, Prosecution and Def. of Forfeiture Cases § 10.05[8] (2007) (noting that this issue may be dispositive when illegally seized res is currency); see also United States v. $557,933.89 in U.S. Currency, 287 F.3d 66, 80 (2d Cir.2002) (undecided); United States v. $36,634 in U.S. Currency, 103 F.3d 1048, 1052 n. 3 (1st Cir.1997), superseded on other grounds as stated in United States v. Lopez-Burgos, 435 F.3d 1, 2 (1st Cir.2006) (limited admissibility); United States v. $12,390 in U.S. Currency, 956 F.2d 801, 806 (8th Cir.1992) (admissible); United States v. $639,585 in U.S. Currency, 955 F.2d 712, 715 n. 5 (D.C.Cir.1992) (limited admissibility).


M.D. Pa. Notes Intra-Circuit Split Re Amendment of a Judgment to Account for Negative Tax Consequences of Front or Back Pay Award

Per E.E.O.C. v. Federal Express Corp., --- F.Supp.2d ----, 2005 WL 6073699 (M.D. Pa. Jan. 18, 2005):

No decision of the Third Circuit authorizes the amendment of a judgment to account for negative tax consequences that result from a lump sum award of front or back pay. Courts within the circuit are divided on the issue. Compare O'Neill v. Sears, Roebuck & Co., 108 F.Supp.2d 443, 448 (E.D.Pa.2000)(finding award appropriate, and noting plaintiff supported her request with testimony from financial consultant) with Anderson v. Conrail, 2000 U.S. Dist LEXIS 15978 at *14-15 (E.D.Pa. Oct. 26, 2000)(refusing to adjust award to account for tax consequences because such amendment would be speculative, noting plaintiff had not supported her request with any evidence) and Shovlin v. Timemed Labeling Sys., Inc., 1997 U .S. Dist. LEXIS 2350 at *7 (E.D.Pa. Feb. 28, 1997)(same).


Eleventh Circuit Mentions Split Re Liquidated Damages Issue in FLSA

Per Rodriguez v. Farm Stores Grocery, Inc., --- F.3d ----, 2008 WL 601845 (11th Cir. Mar. 06, 2008):

The parties cite the decisions of three circuits showing a clear split over whether the standards for finding willfulness and for finding the absence of good faith are the same so that the jury's finding on the former issue controls the judge's finding on the latter one. Compare Brinkman v. Dep't of Corr., 21 F.3d 370, 373 (10th Cir.1994) (“The same willfulness standard for the statute of limitations issue applies to the liquidated damages issue.” (citation omitted)), with Broadus v. O.K. Indus., Inc., 226 F.3d 937, 944 (8th Cir.2000) (noting that the “jury's decision on willfulness is distinct from the district judge's decision to award liquidated damages” (citation omitted)), and Fowler v. Land Mgmt. Groupe, Inc., 978 F.2d 158, 162 (4th Cir.1992) (“[T]he explicit language of [the safe harbor provision] expressly vest[s] discretion to award liquidated damages in the hands of the trial judge. We do not believe that, in light of this clear delegation of authority, Congressional intent would be effectuated by a scheme in which, in every case, the trial court's discretion to award liquidated damages would be completely constrained by the jury's determination on ‘willfulness' for purposes of the statute of limitations.”).

Interesting as the issue is, we don't have to pick a side in the circuit split in order to decide this appeal.


D. Hawai'i Notes Split Re Statute of Limitations Applicable to IDEA Attorney's Fees Actions

Per Brandon E. v. Department of Educ., Slip Copy, 2008 WL 563478 (D. Hawai‘i Feb. 29, 2008):

There is a circuit split regarding the appropriate state statute of limitations to apply to actions for attorney's fees under the IDEA. See Holmes v. Dep't of Educ., 234 F.Supp.2d. 1156, 1158 (D .Haw.2002).

The Eleventh Circuit has held that the IDEA provides two separate and distinguishable procedures. See Zipperer v. Sch. Bd. of Seminole County, 111 F.3d 847, 851 (11th Cir.1997). Specifically, 20 U.S.C. § 1415(i)(2) provides for review of substantive decisions while 20 U.S.C. § 1415(i)(3) provides for an independent claim for attorney's fees. Id. The Eleventh Circuit explained that “the short statute of limitations associated with appeals of administrative procedures, while appropriate when a child's Individualized Education Plan is at issue in a substantive appeal of an administrative determination, are too short to vindicate the underlying federal policies associated with the fee-claims provisions of the IDEA.” See Id.; see also, Kaseman v. District of Columbia, 329 F.Supp.2d 20, 25 (D.D.C.2004) (following the Eleventh Circuit's interpretation of fee actions under the IDEA).

The Sixth and Seventh Circuits have held that actions for attorney's fees under the IDEA are ancillary to the judicial review of the administrative hearing and should be governed by statutes dealing with judicial review of state agencies. See Powers v. Indiana Dep't of Educ., 61 F.3d 552, 555 (7th Cir.1995); King v. Floyd County Bd. of Educ., 228 F.3d 622, 625-26 (6th Cir.1999). Those jurisdictions held that the substantive review of administrative hearings and fee actions were sufficiently analogous under the IDEA to require similar limiting statutes. Id.

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