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Roundup: 1st, 4th, 7th and 9th Circuits

1st Circuit: Rude Employer Isn't Discriminatory

Anti-discrimination laws do not protect employees against every "unjust, unfair, or unpleasant" work experience, the 1st Circuit ruled on Dec. 13, 2010, in Ahern v. Shinseki.

Four female radiology technologists at a Department of Veterans Affairs hospital in Providence, R.I., filed suit against their employer after each resigned, citing sex discrimination and a "nerve-wracking" work environment.

In 2003, the plaintiffs complained that their former supervisor, Mehrdad Khatib, created "stressful working conditions." Khatib was asked to resolve the issue. In 2004, he requested that the plaintiffs' four-day workweek be changed to a traditional schedule. Although the change was never implemented, the plaintiffs and five others lodged a formal complaint against Khatib, claiming the proposal was retaliation.

The plaintiffs sued their employer for gender-based discriminatory hiring, retaliation and constructive discharge. The 1st Circuit affirmed the lower court's judgment for the defendant. The plaintiffs were unable to support their discriminatory hiring-retaliation claims, and the court rejected the constructive discharge claim, noting that "generally disagreeable behavior and discriminatory animus are two different things."

4th Circuit: Limitations Period Tied to Suspicion

On Dec. 30, 2010, the 4th Circuit reinstated CSX Transportation, Inc. v. Gilkison, a lawsuit against lawyers and doctors accused of filing fraudulent asbestos-liability claims.

Beginning in 2000, railroad company CSX Transportation became the target of numerous asbestos-related liability claims filed by Pittsburgh law firm Peirce, Raimond & Coulter, which offered X-ray screenings to railroad employees. Radiologist Ray Harron analyzed the poor-quality X-rays, which were taken by an unlicensed technician, and diagnosed asbestosis on nearly all of them without ever speaking to the employees about their exposure to asbestos.

In 2005, after thousands of suits had been filed, a federal judge issued a decision criticizing tort litigation fraud and Harron. CSX sued the firm and Harron in 2007, but the trial judge ruled that the four-year statute of limitations began in 2000, and most of the case was dismissed.

The 4th Circuit disagreed, ruling that the limitations period did not begin until CSX could reasonably suspect fraud, which could only be established after the facts of the case were determined.

7th Circuit: Hostile Conduct Isn't Protected

An employee who engages in protected behavior, such as whistleblowing, must still demonstrate "civility" while lodging complaints, the 7th Circuit ruled Dec. 10, 2010, in Formella v. U.S. Department of Labor and Schnidt Cartage, Inc.

In 2006, Schnidt Cartage truck driver Donald Formella complained about potential safety problems with his truck. While his supervisor was asking the head of maintenance to address the issues, Formella kept fuming, becoming so volatile that his supervisor fired him.

Formella filed a complaint with the Occupational Safety and Health Administration (OSHA), claiming that he was fired in retaliation for his safety concerns. The Surface Transportation Assistance Act (STAA) protects commercial truck drivers who raise safety or health-related issues.

The administrative law judge (ALJ) found that Formella's complaint was protected, but his conduct was not. Whistleblower employees are entitled to "some indulgence," but the employer retains a right to maintain order and respect. Therefore, the ALJ found, Formella was fired not for his protected activity, but for his antagonistic behavior. Both the OSHA Administrative Review Board and the 7th Circuit agreed.

9th Circuit: ADA Decisions Must Be Made Individually

A legally blind law student must be accommodated if entitled to use assistive software to take the bar exam, the 9th Circuit affirmed in Enyart v. National Conference of Bar Examiners on Jan. 4.

Stephanie Enyart requested special accommodations from the National Conference of Bar Examiners (NCBE) to take the Multistate Professional Responsibility Exam and the Multistate Bar Exam. The NCBE refused her requests to take the tests using assistive screen reader and magnification software.

The NCBE offered instead to provide Enyart with a live reader and closed-circuit television, but because of her condition, these were not adequate to address her needs. After three rejected requests, Enyart sought an injunction to force the NCBE to allow the software. A district judge granted the injunction.

Enyart failed to pass the exams even with the software accommodations, but the 9th Circuit upheld the injunction on appeal, ruling that without it, Enyart's difficulties in passing the bar exam and pursuing her career surpassed the NCBE's in accommodating her condition.

Kayleigh Roberts

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