Roundup: 7th, 8th, 10th and 11th Circuits

ADEA not only remedy for federal age discrimination claims; Corporate political spending disclosure law temporarily blocked; Document delay is unfair labor practice; Damages key issue in class certification case

7th Circuit
Illinois, Indiana, Wisconsin

ADEA not only remedy for federal age discrimination claims

On Aug.17, the 7th Circuit broke from the pack and became the only circuit court to say, in Levin v. Madigan, that the Age Discrimination in Employment Act (ADEA) is not the only recourse for a federal age discrimination claim.

Harvey N. Levin was fired from his position as an attorney at the Illinois Attorney General’s office when he was 61 years old and was replaced by an employee in her 30s. He sued his employer under the ADEA, as well as Title VII of the Civil Rights Act of 1964 and 42 U.S.C. Section 1983. The district court dismissed Levin’s ADEA and Title VII claims, saying he did not qualify as an employee under those laws. But the court did find that the ADEA did not preclude Levin’s Section 1983 claims.

Section 1983 allows for vindication of federal rights protected in other statutes, if those statutes have insufficiently complete remedial devices. In this case, though the 7th Circuit said it was a “close call,” the appeals court ultimately found that the ADEA provides different protection than Section 1983 and affirmed the district court’s decision.


8th Circuit
Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota

Corporate political spending disclosure law temporarily blocked

In its Sept. 5 decision in Minnesota Citizens Concerned for Life et al. v. Swanson et al., an en banc 8th Circuit reversed a district court and an 8th Circuit panel when it temporarily blocked a Minnesota law requiring companies to track and disclose the amount of money they spend on political campaigns, and create a political fund if they spend more than $100 per year on such activity.

The court sided with the plaintiffs, which included Coastal Travel Enterprises, along with the non-profits Minnesota Citizens Concerned for Life Inc. and the Taxpayers League of Minnesota, finding that the law infringed on companies’ First Amendment right to free speech and violated the Supreme Court’s decision in Citizens United v. Federal Election Commission.

“After Citizens United, it is clear Minnesota may not suppress political speech on the basis of the speaker’s corporate identity,” the court wrote. The court remanded the case to the district court for further proceedings.


10th Circuit
Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming

Document delay is unfair labor practice

When a New Mexico power company refused to furnish requested documents in a labor dispute until right before the hearing, the National Labor Relations Board (NLRB) found that the company’s actions constituted an unfair labor practice. On Aug. 28, in Public Service Company of New Mexico v. NLRB, the 10th Circuit agreed.

Robert Madrid, a bill collector for the power company, allegedly cut a delinquent customer’s gas line in anger without the permission of his supervisor. The company fired him for violating state law and its ethics policy. Madrid’s union filed a grievance on his behalf, claiming he was treated more harshly than other employees who had committed similar wrongs. The union requested the company’s personnel actions so that it could substantiate this claim, but the company refused to give up the documents, saying they were irrelevant.

Right before a hearing with an NLRB administrative law judge (ALJ), the company decided to provide the documents. But it was too late, as both the ALJ and then the NLRB itself found that because of the company’s delay in providing the documents, it had engaged in an unfair labor practice. In its decision, the 10th Circuit granted the NLRB’s petition for enforcement of its order.


11th Circuit 
Alabama, Florida, Georgia

Damages key issue in class certification case

On Aug. 22, the 11th Circuit upheld a district court’s decision not to certify a class that accused wireless carrier T-Mobile USA Inc. of reactivating stolen or lost phones without the owners’ permission when the phones were returned by other people.

The main issue that the court considered on appeal in Robinson et al. v. T-Mobile USA Inc. was the district court’s determination that plaintiffs had not established the predominance of common issues due to concerns over damages. The plaintiffs claimed that they could determine the value of stolen phones through online research, but they failed to show a concrete methodology for how they would do so. They didn’t account for issues such as the age of the phones when they were stolen, what applications they contained or whether to use the phones’ values as of 2011 or as of the years they were stolen.

The variation in damages made the class unfit for certification under Rule 23(b)(3), the district court ruled. The plaintiffs failed to successfully challenge this ruling in both their opening brief and the reply brief they filed in response to one T-Mobile filed that cited the damages concern as one of the main reasons the 11th Circuit should uphold the refusal to certify. And so, the 11th Circuit affirmed the district court’s decision.

Contributing Author

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