U.S. Supreme Court

Case No. 17-988
April 24, 2019

The Court, by a 5-4 majority, extended its decision in  Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. holding that a court cannot order class arbitration when an agreement is  silent on the issue, to a case where the arbitration agreement is  ambiguous on the issue of class arbitration. The majority did not independently analyze the issue of ambiguity, accepting the Ninth Circuit’s conclusion on that point. However, it rejected the Ninth Circuit’s use of contra proferentem to resolve the ambiguity against the employer, holding that arbitration must be a matter of the actual agreement of the parties.  

Each dissenting judge filed a separate opinion, as well as joining others, offering several different grounds of disagreement with the majority. In particular, the dissenters disagreed with the Court’s rejection of application of the contra proferentem doctrine.  

[ Author’s Note : One of the provisions of the employment-based mandatory arbitration agreement at issue in this case was a clause that provided for arbitration “in accordance with the rules” of the arbitration forum, which provided for class arbitrations. This provision was not referenced by the Ninth Circuit in reaching its conclusion that the agreement was ambiguous, but Justices Sotomayor and Kagan noted it in their dissents as at least providing support for a conclusion that class arbitration was envisioned by the parties.]

Eleventh Circuit Court of Appeals 
Weekly Update
 May 3, 2019
Published Cases
Case No. 17-13154
April 23, 2019

The NLRB entered a  decision that the employer violated Section 8(a)(5) when it discharged three of its employees in contravention of the employer’s progressive discipline policy and without bargaining the issue, and the employer petitioned for review. The specific issue under consideration in the petition was whether the Board abused its discretion in denying the employer’s request for reopening to offer additional evidence. Concluding that the new evidence would not support the employer’s legal contention on the merits, the Eleventh Circuit denied the petition.  

The employer provided security guards for an IRS facility in Texas. The contract with the IRS contained a Performance Work Statement (PWS) that gave the agency the unilateral ability to require immediate removal of security guards for listed performance deficiencies. A week apart, three guards failed to detect individuals entering the facility. The IRS emailed the employer, stating that it would not accept “substandard services” and that “[i]f individual guards do not have the character and self-discipline to work at a federal installation and comply with the responsibilities associated, they will need to be removed.” However, the IRS expressed hope that Security Walls would “adopt an effective system of discipline for these types of violations and deter them from happening.” The IRS further noted after reviewing surveillance that the guards were not “careless” but that it hoped the employer “can address this so that guards are paying greater attention to details.” The employer’s investigation found that the guards violated specific performance standards in the PWS and discharged them, even though the discharges were contrary to the progressive discipline policy. The union filed ULPs.

The employer’s contention was that it acted pursuant to the PWS, which superseded the progressive discipline policy. The ALJ found that the IRS did not dictate removal of the guards, and that the employer instead exercised its discretion in doing so. On review by the Board, the employer filed an affidavit (1) indicating that it had received an email from a different IRS manager 10 months after the incidents barring the guards, and (2) speculating that if the IRS had known all the facts of the incident, they would have requested removal at that time. The Board concluded that the affidavit would not change its decision and thus denied reopening.  

On review, the Eleventh Circuit questioned the employer’s contention that the PWS superseded the discipline policy but concluded that, even if it did, the employer failed to establish that the PWS mandated the discharge because the IRS never requested the guard’s removal, and agreed that the proffered affidavit would not dictate a different result in accepted. 
Unpublished Cases
Case No. 17-13405
April 23, 2019

McQueen, an African-American male, pro se appealed a magistrate’s grant of summary judgment in favor of the employer and three employees on McQueen’s claims of retaliation and race discrimination in violation of Title VII, Section 1981, Section 1983, and the Equal Protection Clause. The Circuit Court affirmed. 

Although the Court opined that McQueen abandoned any claims of error because he did not challenge any of the multiple independent reasons the magistrate provided for granting summary judgment as to all defendants, it still addressed each of his claims in turn. The Court first concluded that McQueen failed to establish a prima facie case for his unequal pay claim. Applying the factors recently articulated in  Lewis v. City of Union City , the Court highlighted that, although McQueen asserted he was denied step raises based upon race, all of the crew members that were given a raise had received the certification upon which the raise was conditioned while he had not. Consequently, they were not similarly situated in all material respects.  

The Court then concluded McQueen’s hostile work environment claim failed because he did not show that his supervisor’s mistreatment of him was based on race and it did not involve racially derogatory words or gestures. The Court opined that, even assuming racial animus could be inferred because McQueen was the only non-white crew member, the one incident where the supervisor berated him and shoved him was not severe enough to alter the terms and conditions of employment. The Court then declined to consider McQueen’s evidence that some employees once disparaged his intelligence and referred to him using a racial slur, citing  Adams v. Austal , because there was no evidence that he was aware of these comments during the complained-of time-period, instead learning of them later. The Court further concluded that, even if the information could be considered, the cumulative events were too sporadic and isolated to be considered pervasive.  

As to McQueen’s retaliation claim, the Court rejected his contention that a suspicious drug screen to which he was subjected after filing his EEOC complaint constituted an adverse employment action because he passed the test and did not suffer any tangible harm. Additionally, while he alleged that his supervisor threatened to reprimand him and gave him a low performance rating, the supervisor declared that he was unaware of the EEOC charge until the lawsuit. Consequently, summary judgment was appropriate as to McQueen’s retaliation claims. Finally, the Court concluded that since his discrimination and retaliations claims failed, his Section 1983 claims against the individual employees based upon the same underlying facts also failed.  
Case No. 18-12261
April 22, 2019

The Eleventh Circuit affirmed summary judgment in favor of Gilman Building Products, Inc. on Wood’s claims of disability discrimination under the ADA, FMLA interference, and FMLA retaliation. 

Wood worked for Gilman, a sawmill operator, until he was terminated for purportedly violating the mill’s progressive discipline attendance policy. Under the policy, if the employee accrued four “occasions” in a six-month period, he was terminated. Following his first two occasions, Wood twisted his ankle in a non-work-related incident and, as result, required a thirteen-week leave of absence. A few months after his return, Wood had an unexcused absence. Although more than six months had passed since his last occasion, Gilman considered the incident to be Wood’s third occasion, reasoning his thirteen-week leave of absence tolled his six-month window. Wood then suffered another non-work-related injury, this time in his knee, which resulted in two or three excused absences. About a week later, Wood was tardy. The incident constituted his fourth occasion in a six-month period, and he was terminated. 

The Eleventh Circuit rejected Wood’s disability discrimination claim because he failed to show he was disabled or perceived as disabled at the time he suffered the alleged adverse employment actions, which according to Wood occurred when Gilman extended his six-month window under the policy and when he was terminated. The Court further found Wood’s interference and retaliation claims relating to his knee injury were unmeritorious because the injury did not qualify as a “serious health condition” under the FMLA. As to Wood’s retaliation claim relating to his ankle injury, the Court concluded Wood did not establish causation between the statutorily protected conduct (his requested leave of absence) and his termination several months later.
The Eleventh Circuit Weekly Update was prepared by Reemployment Assistance Appeals Commission staff: case summaries by Chairman Frank E. Brown, and Appellate Counsel Cristina A. Velez and Katie E. Sabo; editing by Deputy General Counsel and Chief Appellate Attorney Amanda L. Neff; research and layout by Research Attorney Lesley Blanton.