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When an Employee Complains about Wages and Compensation to the Employer, the Employer Cannot Retaliate — Even if the Employee Does Not File a Formal Complaint in a Court or Before an Administrative Agency

The Fourth Circuit Court of Appeals’ new ruling in Jafari v. The Old Dominion Transit Management Company, a/k/a The Greater Richmond Transit Company (GRTC), settled confusion arising from a prior unpublished decision about whether an employee’s complaint to supervisors within his company is activity protected by the anti-retaliation provision of the Fair Labor Standards Act (“FLSA”). The District Court for the Eastern District of Virginia had incorrectly relied upon Whitten v. City of Easely, 62 F. App’x 477 (4th Cir. 2003), which stated that, “the FLSA’s anti-retaliation provision does not extend to internal complaints.” Id. at 480. Instead, the court looked to a new Supreme Court decision, Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011) to  interpret the FLSA’s meaning of the phrase “filed any complaint,” and so reversed the lower court’s dismissal of Jafari’s case.

(Read the full decision here: http://pacer.ca4.uscourts.gov/opinion.pdf/091004.U.pdf)

Emmet Jafari worked as a driver for the Greater Richmond Transit Company (“GRTC”) for nearly two years. He alleged that GRTC retaliated against after he complained about his pay and the company’s management to the Director of Human Resources. GRTC had implemented a new compensation plan and would not answer his questions as to why his salary was inconsistent with the plan even while his performance evaluation rated his work “near perfect.” He also alleged that GRTC reduced some of his responsibilities while increasing others, solicited complaints from clients about him, and then terminated him with a sealed letter.  GRTC’s explanation was that his “supervisory skills ha[d] diminished.”

Jafari filed his claim under the FLSA, and then filed a pro se appeal to the Fourth Circuit before retaining counsel to request the reversal of the District Court’s dismissal. The FLSA’s anti-retaliation provision prohibits firing or discriminating against an employee because of the fact that the employee “filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter […].” 29 U.S.C. §215(a)(3). Jafari’s internal complaint to GRTC’s Director of Human Resources and management personnel was protected activity under §215(a)(3) even without making the additional effort to raise his concerns about compensation prior to his termination with a court or government agency according to the Fourth Circuit.

The court explained that it arrived at its decision by looking to “functional considerations,” of the FLSA, following the lead of the Supreme Court’s recent FLSA jurisprudence in Kasten v. Saint-Gobain Performance Plastics Corp[1]., even while noting that Kasten was not a directly-controlling decision. “Congress intended the anti-retaliation provision to provide broad protection for those who raise concerns about such detrimental conditions,” and “[v]iewing the statute through this lens,” the court concluded that protecting internal company complaints achieved Congress’ purpose in the FLSA.

The Fourth Circuit issued another opinion the same day, Minor v. Bostwick, No. 10-1258[2], setting forth the same new ruling that “intracompany complaints may constitute protected activity” within the FLSA’s anti-retaliation provision.

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Bad Offer Letter Voids Employment “At-Will”

On November 28, 2011, a Maryland corporation called Systems Assessment and Research, Inc. (“SAR”) learned a (hard) valuable lesson about the consequences of over-drafting — or having typos in — contract provisions. 

Perricci v. Systems Assessment and Research, Inc., 2011 U.S. Dist. LEXIS 135985, involved an offer letter prepared by SAR to its potential employee.  The letter stated:

“You may not terminate your employment with SAR Corp during your first year, or thereafter on less than thirty (30) working day’s prior notice to the other, except SAR Corp may terminate your services at any time without notice for cause, and you may terminate your services at any time with notice after year one (1). (emphasis added). ”

When the employee was terminated without cause before the one-year mark, she brought a breach of contract claim against SAR in aMaryland federal district court.  SAR sought to dismiss the claim by arguing that that the employment was at-will, and therefore the employee could be terminated at any time with or without cause.  While there is a strong presumption in Maryland that employment is created on an “at-will” basis (meaning, employment can be terminated at any time by either party for any reason), a contract may overcome this presumption if it expressly provides that the employment relationship is for a fixed period of time.

Even though a provision in the letter stated that SAR was an at-will employer, the Court nonetheless found that two other provisions expressly provided for a fixed period of employment, thereby overcoming the at-will presumption.  The first provision stated, “SAR Corp may terminate your services at any time without notice for cause.”  The second provision prevented the employee from terminating her employment with SAR during her first year.  The Court held that these clauses evidenced the parties’ express desire to create a fixed term of employment.  It reasoned that, because the employee was not free to terminate the agreement for one year, the letter agreement could not have created an at-will employment relationship for the first year.  Taken together, the terms evidenced the parties’ intent that the plaintiff’s employment would only be terminable for cause during the first year.

In seeking dismissal of the claim, SAR argued that the letter was not a valid contract under theMarylandstatute of frauds (which applies to contracts not able to be performed within one year) because SAR did not sign it.  The Court held that even though the letter was signed only by the employee, it was nonetheless enforceable because it was produced on SAR’s letterhead and contained the name of SAR’s President and CEO in print.  Under Maryland law, “It is . . . a sufficient signing, if the name be in print, and in any part of the instrument, provided that the name is recognized and appropriate by the party to be his.”

Therefore, the Court held that the letter created a fixed-term of employment for at least one year, and the employee could have only been terminated for just cause during that year.  Since the employee was terminated without cause during the first year, the Court denied SAR’s motion for summary judgment and allowed the employee proceed with her breach of contract claim against her former employer.

This case illustrates the importance of carefully drafting offer letters to create at will employment and to avoid surplus language (or typos) that can add other limitations.

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Claim of Nonverbal Racial Harassment Survives Even Though Plaintiff Never Asserted Nonverbal Harassment in His EEOC Charge

Does the failure to include instances of “nonverbal harassment” in an EEOC charge bar a plaintiff from asserting such harassment as a basis for a Title VII lawsuit?  So long as the nonverbal conduct is reasonably related to the claims actually set forth in the EEOC charge, the answer is probably “no.”  The difficulty, of course, is in determining whether the new allegations in the civil action are reasonably related to the claims contained in the EEOC charge.

In Coles v. Carilion Clinic, a black employee sued his employers for racial harassment and discrimination under Title VII.  Prior to filing his lawsuit, he filed a Charge of Discrimination with the Equal Employment Opportunity Commission, stating that, among other things, he had been subjected to “verbal racial harassment.”  Later, the employee filed a civil action, alleging that, in addition to verbal harassment, he was subjected to a display of shackles and a noose in the workplace.  Seizing upon the references in the complaint to nonverbal racial harassment, the defendant employers sought to dismiss the complaint for lack of subject matter jurisdiction.  The employers argued that because the allegations of nonverbal racial harassment were not included in the EEOC charge, the court lacked jurisdiction to address the merits of the claim.

To determine whether it had jurisdiction, court focused on whether the nonverbal conduct was reasonably related to the original EEOC charge or, alternatively, whether such conduct would be discovered through reasonable investigation of the original charge.  In concluding that the nonverbal conduct was reasonably related to the original EEOC charge, the court focused on the fact that the plaintiff did not “completely renovate his central factual allegations as between the administrative charge and the compliant.”  In other words, the complaint did not introduce new actors or time frames – it only added additional details.  Also, the court noted that the allegations of a noose in the workplace would also likely be discovered through a reasonable investigation of the claim of verbal harassment.

The court’s decision in Coles was driven, in large part, by policy considerations.  Noting that the exhaustion requirement should not be a tripwire for hapless plaintiffs, the court refused to focus on the technical similarities between the EEOC charge and the civil action.  Otherwise, the court explained, if technical dissimilarities between an EEOC charge and a subsequent civil complaint were dispositive, the courts would effectively encourage individuals to retain counsel early, thus increasing the likelihood and cost of litigation.

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Two Recent Federal Rulings on Workplace Defamation Provide Guidance for Employers

The subject of workplace defamation is a hot topic in legal circles these days.  In a pair of recent decisions, local federal courts have helped define when negative statements about employees can create legal liability for employers.  The answer varies depending on whether an employer has investigated alleged employee misconduct, and to whom the statements are made.

In the first case, Bates v. Strawbridge Studios, a Virginia federal court allowed two former employees to pursue a defamation lawsuit against their former employer that they claimed had falsely disparaged them to a customer.  In the second case, Shaheen v. Wellpoint Companies, Inc., the Fourth Circuit Court of Appeals affirmed dismissal of the former employee’s defamation claim based on management findings that she had lied about a workplace dispute.

In Bates, two photographers sued their former employer, a school photography business, for defamation based on a prior dispute resolved by settlement between them and the business.  Approximately six months after the settlement was reached, a customer called the employer’s toll free number to locate a photograph, and spoke to a customer service representative.  When the customer mentioned the plaintiffs’ names, the representative called plaintiffs “not reputable,” said that “they could not be trusted,” and stated that “things got so bad [the employer] had to get involved in a lawsuit.”  The plaintiffs brought suit based on these comments, asserting, among other things, that the employer and its representative defamed plaintiffs.

The plaintiffs alleged that the employer was liable for the comments because the representative was acting within the scope of employment.  The employer argued that even if the statements were made, they should be protected from liability by the “qualified privilege” defense.  Virginia recognizes a qualified privilege for communications relating to employment matters between persons on a subject in which the persons have an interest or duty.  For the privilege to apply, however, both parties to the communication must have such an interest for either one to claim the privilege.  The court found that, while the customer service rep may have had a legitimate interest in explaining his views about plaintiffs to a customer, the customer did not have any corresponding interest in learning about the parties’ failed business relationship.  Thus, the court denied the employer’s motion for summary judgment based on the customer’s lack of an interest in hearing the employer’s criticism.

In Shaheen, in contrast, a former call center supervisor had her defamation lawsuit dismissed because the employer’s alleged statements were kept in her personnel file and related to her discharge for “misconduct.”  The dispute arose out of a verbal altercation between the plaintiff and one of her subordinates, whom the plaintiff accused of using obscenities in the workplace.  After an investigation, the employer concluded that the supervisor’s accusations about her subordinate could not be verified, and terminated her employment for her apparent fabrications concerning the incident.

The supervisor proceeded to file a lawsuit against her former employer, asserting that the allegations of misconduct were defamatory.  The employer cited the qualified privilege as its defense.  In response, the plaintiff tried to defeat the privilege by arguing that statements were made with malice, causing the privilege to be lost.  Under the law, a qualified privilege will not apply when defamatory words are spoken with malice.

In Shaheen, the plaintiff sought to prove that the existence of malice was at least a disputed issue by focusing on perceived deficiencies in the employer’s investigation.  The Fourth Circuit rejected this argument.  The court noted that this was not an instance in which the employer made the statement without conducting any investigation; rather, the dispute centered on the employer’s investigative methodology.  The plaintiff claimed that the investigation was “grossly inadequate” and that the investigator did not ask “the right questions” in verifying her version of events.  However, even if these assertions were true, the court held that it was not sufficient proof of malice and would not cause the employer to lose its qualified privilege.  In employment cases, courts generally do not “second guess” employers when they investigate misconduct.

These decisions emphasize how important it is for companies to carefully investigate employee conduct before administering discipline, and limiting any communication of employee criticism or counseling to people with a “reason to know” within the organization.  By taking reasonable steps to verify information before finding employee misconduct and controlling the use of that information, an employer can help defuse the potential for later defamation claims.

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Employment Handbooks with “At-Will” Employment Language Could Violate the NLRA

The National Labor Relations Board (NLRB) has recently taken the controversial position that certain written “at-will” employment disclaimers could be violating Section 8(a)(1) of the National Labor Relations Act (the “Act”).  Specifically, the NLRB is taking aggressive steps to protect employees’ rights under Section 7 of the Act, which gives employees the right to engage in concerted activities in order to alter the terms or conditions of their employment.  The NLRB has recently claimed that these typical “at-will” employment disclaimers are stifling Section 7 of the Act in violation of Section 8(a)(1).

The first of two recent cases to address this issue is NLRB v. Hyatt Hotel Corp., Case 28 CA-061114 (Feb. 29, 2012).  In this case, the NLRB filed an unfair labor practice charge against Hyatt, stating that the acknowledgement form in its employee handbooks is “overly-broad and discriminatory.”  The acknowledgment states:

“I understand my employment is ‘at will.’  This means I am free to separate my employment at any time, for any reason, and Hyatt has these same rights.  Nothing in this handbook is intended to change my at-will employment status.  I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me and either Hyatt’s executive vice-president/chief operating officer or Hyatt’s president.”

The NLRB advocated that such language violates Section 7 of the Act because it prohibits a change in the conditions of employment except through a written document signed by a company executive.  In other words, the NLRB’s position is that Section 7 provides employees with a legitimate means to alter their employment status, and this right cannot be contracted away.  Hyatt eventually settled the case before it got to a hearing, and agreed to revise its at-will provision.

In another case, NLRB v. Am. Red Cross Ariz. Blood Servs. Region, Case 28-CA-23443 (Feb. 1, 2012), an administrative law judge concluded that similar “at-will” disclaimer language did actually violate the Act.  The ALJ decided that requiring employees to sign such disclaimers effectively forces employees to relinquish their rights to engage in union representation or collective bargaining in order to change their “at-will” status, and is thus a violation of Section 7 of the Act.  Similar to the situation in Hyatt, the American Red Cross settled this case before taking it through to appeal in federal court.

These types of at-will disclaimers have been in most employee handbooks for decades.  The disclaimers are important protections against a future argument that an employer created an implied, indefinite contract with its employee, either verbally or through the remaining provisions of the handbook.  Given the NLRB’s recent position, however, employers now face the risk that the NLRB will file an unfair labor practice charge against businesses that maintain similar “at-will” disclaimers.  On the other hand, both these cases arose out of the NLRB’s Phoenix regional office, and the federal courts have not yet ruled on the issue.

So how should employers respond?  NLRB’s movement in this direction could serve as a cautionary example, and employers should remain alert to further NLRB action pertaining to at-will disclaimers.  Employers might consider speaking to their labor and employment counsel concerning revisiting employee handbooks.  The solution for employers might be as simple as adding a “savings” clause, which expressly states that the disclaimer will not affect employees’ rights under the Act.

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Three Gross Racial Epithets Are Not “Hostile.”

Hampton v. J.W. Squire Company, Inc.– A supervisor called a subordinate a “house nigger” three times and the subordinate complained.  The Court held that these statements were not enough to create a “hostile work environment” and dismissed his claim for employment discrimination at the summary judgment stage.

To win a a hostile work environment case, an employee must show that “the evidence—viewed in [his] favor—would allow a reasonable [finder of fact] to conclude that the harassment was (1) unwelcome, (2) based on [his]…race, (3) sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive atmosphere, and (4) imputable to [the employer].” E.E.O.C. v. Central Wholesalers, Inc., 573 F.3d 167, 174-75 (4th Cir. 2009).

There is no bright line rule of how many racial epithets an employer can hurl at an employee before he creates a “hostile work environment.”  However, three is not enough according to this Court.

There are four types of employment discrimination under federal law:  disparate treatment, disparate impact, hostile work environment, and unlawful retaliation.  In this case, the employee filed under the “hostile work environment” theory.  Had he filed under the “retaliation” theory, after he was fired, he might have fared better.  However, he didn’t raise this claim in his mandatory complaint to the EEOC.  He raised it, for the first time, in the federal court.  It was too late for consideration.

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Where to Protest: The GAO Versus the CFC

Two Forums, Different Grounds

Practitioners seeking on behalf of a client to challenge a particular Procurement outside the internal processes offered by a Federal Agency are given a choice of two forums: (a) the United States Government Accountability Office (GAO), and (b) the United States Court of Federal Claims (CFC).[1] The GAO forum is non-exclusive.

The GAO is an arm of the Congress and is empowered by 31 U.S.C. § 3552(a) to take action only on violations of statute or regulation affecting a Procurement. Systems Applications & Technologies, Inc. v. United States, Fed. Cl. No. 11-280C, August 25, 2011, 2011 U.S. Claims LEXIS 1784, *72. If GAO decides that Agency action violates a statute or regulation affecting a Procurement, GAO may “recommend,” 31 U.S.C. § 3554(b)(1), that an Agency correct the violation. Agencies which do not adopt GAO recommendations are reported to the Congress, 31 U.S.C. § 3554(e)(1). There is no provision for review of GAO actions save that corrective action taken by Federal Agencies in response to a matter pending before GAO or to a GAO decision may be challenged at the CFC. Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed. Cir. 1989).

The CFC is an Executive Branch tribunal, 28 U.S.C. § 171(a), whose Procurement Protest jurisdiction is set out in 28 U.S.C. § 1491(b). Under this jurisdictional statute, the CFC may award declaratory and injunctive relief, and the CFC may award monetary relief, limited to bid preparation or proposal costs. 28 U.S.C. § 1491(b)(2). Final Judgments of the CFC are reviewed, as of right, by the United States Court of Appeals for the Federal Circuit. 28 U.S.C. § 1295(a)(3).

Procurement Protests may be filed with the CFC either Pre-Award, else Post-Award. To succeed on a Pre-Award Procurement Protest, a vendor must establish a non-trivial competitive injury which can be remedied by declaratory or injunctive relief. ICP Northwest, LLC v. United States, 98 Fed. Cl. 29, 35-36 (2011). Success on a Post-Award Procurement Protest requires that an actual bidder or offeror demonstrate that it suffered disparate treatment or particularized harm, and that but for these circumstances, it had a “substantial chance” of receiving an Award under the challenged Procurement.Labatt Food Service, Inc. v. United States, 577 F.3d 1375, 1379-80 (Fed. Cir. 2009).

There are two Grounds for challenges to Agency actions which may be asserted in a Procurement Protest filed with the CFC: (a) Agency actions in violation of statute, or regulation, or controlling Agency guidelines and therefore “not in accordance with law,” 5 U.S.C. § 706(2)(A) , 5 U.S.C. § 706(2)(D), and 28 U.S.C. § 1491(b)(1), Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 n. 5 (Fed. Cir. 2001); else (b) Agency actions which are demonstrated to be “arbitrary, [or] capricious, [or] an abuse of discretion,” 5 U.S.C. 706(2)(A) and 28 U.S.C. 1491(b)(4), Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1057 (Fed. Cir. 2000).

The first of these Procurement Protest Grounds at the CFC is the only Procurement Protest Ground which may be asserted before GAO. The second of these Procurement Protest Grounds is an additional Procurement Protest Ground available at the CFC. Thus, the CFC provides two protest grounds while the GAO only offers one.  This paper analyzes both of these Procurement Protest Grounds available at the CFC.

Violations of Procurement Statute, or Regulation, or Controlling Agency Guidelines

This category of protest may be adjudicated by either the GAO or the CFC.  The statutes affecting a Procurement most frequently at issue in Procurement Protests before the CFC are those set out for the Military Departments in the United States Code, Title 10, Chapter 137, “Procurement Generally,” and for the other Federal Agencies, in Title 41, Chapter 33, “Planning and Solicitation.” The regulations affecting a Procurement most frequently at issue in Procurement Protests before the CFC are those set out in the applicable version of Title 48, Code of Federal Regulations, Parts 1 through 99, the “Federal Acquisition Regulations System.”

Any statute enacted by Congress and any regulation adopted by the Executive Branch to implement a statute may affect a Procurement and may be violated in a particular Procurement.[2] An example is Section 508 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(d), which requires that electronic and information technology procured by Federal Agencies must be accessible to people with disabilities. Allied Technology Group, Inc. v. United States, Fed. Cir. No. 2010-5131, June 9, 2011, 2011 U.S. App. LEXIS 11687, *25.

Pre-Award Procurement Protests most often turn on violations of statute or regulation and do not present occasions for review of challenged Agency actions under the “arbitrary, [or] capricious, [or] an abuse of discretion” Procurement Protest Ground. There are, of course, exceptions to this syllogism, an example being an announced price evaluation methodology successfully challenged as irrational in a Pre-Award Procurement Protest because it did not accurately reflect the cost to the taxpayers. Arch Chemicals, Inc. v. United States, 64 Fed. Cl. 380, 402 (2005).

Agency Actions Demonstrated to be Arbitrary, or Capricious, or Abuses of Discretion

The CFC, unlike the GAO may consider an entire category of protests – actions deemed arbitrary, capricious, or abuses of discretion.  Such agency actions are those for which the Agency has not provided a coherent and reasonable explanation and lack a rational basis. Centech Group, Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009). Obviously, Agency action in violation of statute or regulation is irrational.United States v. Amdahl Corp., 786 F.2d 387, 392-93 (Fed. Cir. 1986).

What about Agency actions taken in good faith?

Simply put, the law requires that Agency actions must be neither arbitrary, nor capricious, nor abuses of discretion, and these are substantive review criteria independent of any violations vel non of statute or regulation. RAMCOR Services Group, Inc. v. United States, 185 F.3d 1286, 1290 (Fed. Cir. 1999). Good faith is not a defense to such Agency actions. Impresa, 238 F.3d at 1333.

There is a four-part test for proof of Agency actions claimed to be arbitrary, or capricious, or an abuse of discretion, and this four-part test is set out in a 1983 Decision of the Supreme Court of theUnited States of America:

“Normally, an agency [decision] would be arbitrary and capricious if the agency has [1] relied on factors which Congress has not intended it to consider, [2] entirely failed to consider an important aspect of the problem, [3] offered an explanation for its decision that runs counter to the evidence before the agency, or [4] is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”

Motor Vehicles Manufacturers Assoc. v. State Farm Mutual, 463U.S. 29, 43 (1983).

An example of element (2) of this four-part test for proof of Agency actions claimed to be arbitrary, or capricious, or an abuse of discretion is CRAssociates, Inc. v. United States, 95 Fed. Cl. 357 (2010). At issue in CRAssociates was an Army Solicitation for facilities and support services as required for a successor Contract to furnish health care services to military beneficiaries out of two facilities to be located in Northern Virginia.

One of the Procurement Protest Grounds asserted in CRAssociates was that the Army had failed to evaluate proposed professional compensation so as to ensure that the successor Contractor’s ability to attract and retain competent professional employees would not be impaired. Id., at 369-70. This is element (2) of the State Farm test.

In fact, the Army had not explicitly conducted this required analysis, and instead the Army argued, from various snippets in the contemporaneous Administrative Record, that the substance of the required analysis had in fact been accomplished, albeit in a disparate fashion. The Court rejected this argument, concluding that the Army could not baste together from these various snippets the set of findings required to be made for a successor Contractor’s professional compensation plan. Id., at 374.

It turned out that the CRAssociates Protester had first filed at GAO and that there the Army Contracting Officer had submitted, as provided by 31 U.S.C. § 3553(b)(2), a post hoc rationalization of his Actions. As required by 31 U.S.C. § 3556, this Contracting Officer Report became a part of the Administrative Record before the CFC. But noting that there is nothing in this statute which requires the CFC to give any particular weight to this post hoc Contracting Officer Report, the CFC in CRAssociates held that such documents could not serve to bring about redemption for the missing consideration of the successor Contractor’s professional compensation plan—“they can neither fill in gaps in the agency’s reasoning for an award nor supply missing documentation of that reasoning.” Id., at 378.

An example of elements (3) and (4) of the four-part test for proof of Agency actions claimed to be arbitrary, or capricious, or an abuse of discretion is EREH Phase I LLC v. United States, 95 Fed. Cl. 108 (2010). Here a Solicitation required that leased premises not be in a flood plain unless the Agency determined “that there is no practicable alternative.” As it turned out, portions of the leased premises (parking spaces, vehicle security station, and portions of the access road and perimeter security fencing) along Arlington Boulevard in Northern Virginia were within a designated flood plain, and the Agency did not make the required determination. Id., at 114-15.

The Agency attempted to support its failure to make this required determination by (a) documents in the Administrative Record and by a submission by a consultant to the successful Offeror, and (b) by an electronic mail exchange between the Agency and the successful Offeror, an electronic mail exchange that consisted of a one-sentence question from the Agency, and less than an hour later, a one-word response from the successful Offeror.

As to (a), the EREH Phase I Court holds that the documents in the Administrative Record do not reflect any informed Agency analysis and that the submission could not have been “rational” because the hand-drawing included with it is not to scale, cites neither authorship nor any information as to when or why it was rendered, and is circular in its conclusion. Id., at 116-17.

As for (b), the EREH Phase I Court holds that this electronic mail exchange demonstrates only the Agency relied on the successful Offeror’s one-word representation and that the Agency did not make its own determination. Here the Court specifically notes that Agency Action which irrationally relies only upon an Offeror’s submission is itself arbitrary, or capricious, or an abuse of discretion. Id., at 117.

The Administrative Record assembled for review of challenged Agency action defines just what it is which may be reviewed by the CFC upon a challenge to a Procurement, i.e., the Administrative Record must be documents relied upon by the Agency when it undertook the challenged Procurement action as well as any documentation which reveals the Agency’s decision-making process. Procurement Protest review is not de novo review of Agency actions and there is a clear distinction between admitting new evidence not before the Agency (improper) and incorporation of materials generated or considered by the Agency itself before the challenge (proper). Joint Venture of Comint Systems Corp. and EyeIT.com, Inc. v. United States, Fed. Cl. Nos. 11-400C & 11-416C, July 15, 2011, 2011 U.S. Claims LEXIS 14332, *22-*27.

Agency actions challenged in a Procurement Protest must pass muster, or not, based on this Administrative Record. As is explained in State Farm, Agency action which is not supported by the documents in the Administrative Record is arbitrary, or capricious, or an abuse of discretion.

Agencies must demonstrate they fairly and reasonably could find the facts as they supposed them to be, and the Court may not meekly accept Agency conclusions at variance with the Administrative Record.Braniff Airways, Inc. v. Civil Aeronautics Board, 379 F.2d 453, 466-67 (D.C. Cir. 1967).

Agency conclusions found at variance with the Administrative Record provide the basis for setting aside a challenged Procurement unless there is no “substantial doubt whether the administrative agency would have made the same ultimate finding with the erroneous findings or inferences removed from the picture.Id., at 466. A challenged Procurement supported by Agency conclusions at variance with the Administrative Record must be set aside unless “a mistake of the administrative body is one that clearly has no bearing on . . . the substance of the decision reached,” Massachusetts Trustees of Eastern Gas & Fuel Associates v. United States, 377 U.S. 235, 248 (1964), else “there is reason to think that the remand might lead to a different result,” Federal Express Corp. v. Mineta, 373 F.3d 112, 118 (D.C. Cir. 2004).

Demonstrated variances between the Administrative Record and Agency action supporting a challenged Procurement are not the only circumstances sufficient to conclude that Agency action lacks a rational basis. Generally, the test is whether the Administrative Record provides a coherent and reasonable explanation of Agency action and whether the Administrative Record demonstrates consideration of relevant factors. PAI Corp. v. United States, 614 F.3d 1347, 1351 (Fed. Cir. 2010).

Challenges to Agency action premised on lack of a rational basis must overcome the presumption that Agencies act in a reasonable and rational manner and thus must go beyond simple disagreement with Agency conclusions or procedures. This burden is elevated when the challenges concern “best value” selections (a weighing of price/cost against perceived technical advantage) or evaluations of technical excellence or quality. Northeast Military Sales, Inc. v. United States, Fed. Cl. No. 11-181C, May 31, 2011,2011 U.S. Claims LEXIS 1091, *16-*17.

Agencies lose the benefit of these presumptions when they ignore principles of integrity, fairness, and openness and engage in gamesmanship to avoid any review of a Procurement. Thus where it is shown that an Agency has simply concocted records to support a challenged Procurement, the Procurement is properly set-aside. California Industrial Facilities Resources, Inc. v. United States, Fed. Cl. No. 11-299C, July 8, 2011, 2011 U.S. Claims LEXIS 1330, *22, *25-*26 (data supporting price reasonableness justification not obtained until long after sole-source justification was signed).

Where the Agency’s decision-making process is revealed in the Administrative Record (and it usually is), then CFC review of the challenged Agency decision is limited to the rationale supplied in those documents, S.E.C. v. Chenery Corp., 332 U.S. 194, 196 (1947) (“[A] reviewing court in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely on the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis.”), and the CFC may not supply a different rationale from elsewhere in the Administrative Record. OMV Medical, Inc. v. United States, 219 F.3d 1337, 1344 (Fed. Cir. 2000).

[1] What is a “Procurement” open to such challenges? The statutes provide an answer. A “Procurement” open to challenge is Agency action at any stage “of the process of acquiring property or services, beginning with the process for determining a need for property or services and ending with contract completion and closeout.” 41 U.S.C. § 111; Distributed Solutions, Inc. v. United States, 539 F.3d 1340, 1345 (Fed. Cir. 2008). Such Agency actions ripe for review are those which are final, not merely tentative or interlocutory; those from which legal consequences will flow, Bennett v. Spear, 520 U.S. 154, 177-78 (1997); and those which have an immediate and severe impact on a private party, Gardner v. Toilet Goods Association, 387 U.S. 167, 170 (1967).

[2] What about Executive Orders and internal Federal Agency operating procedures? Well here the law becomes a little murky.

The accepted mantra is that violations of Executive Orders, which are often issued as managerial direction to Executive Branch Agencies, are not judicially enforceable. But there is a distinction, the same distinction under which the CFC enforces violations of the Federal Acquisition Regulations, and this is that Executive Orders and controlling Agency guidelines implementing or expressly tied to particular statutes are clearly reviewable at the CFC. Knowledge Connections, Inc. v. United States, 79 Fed. Cl. 750, 758 (2009).

Claimed violations of internal Federal Agency procedures are likewise generally not judicially enforceable. This results from the deference afforded Federal Agencies—Federal Agencies are free to change or waive their internal policies, and in the case of Procurement Protests, Source Selection Plans are a frequent instance of internal policies the violation of which are not judicially enforceable. USfalcon, Inc. v. United States, 92 Fed. Cl. 436, 452-53 (2010).

But Executive Orders and internal Federal Agency operating procedures, while not themselves the proper subject of Procurement Protests, can bolster the rationality of Agency Procurement Actions, else may be relied upon along the way to demonstrating, by a preponderance of the evidence, the absence of any rational basis for Agency actions in challenged Procurements. Fort Carson Support Services v. United States, 71 Fed. Cl. 571, 592-93 (2006)


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“Constructive Discharge” Not an Exception to “Employment at Will”

Gordon v. Armorgoup N.A., A government contractor employee quit his job because racial harassment and discrimination forced him to resign — an alleged “constructive” discharge.  (Constructive discharge means that while one voluntarilly quits his job, he was effectively forced to do so by unfair circumstances).  The Court held that, under Virginia law, “constructive discharge” is not an exception to the general principle that employment in Virginia is “at will.”  One cannot sue for wrongful termination if he actually quit — “constructive discharge” or not.

The plaintiff in this case may still pursue a different prong of his lawsuit.  He also claimed that her employer was defrauding the government.  His False Claims Act allegations were based on his “constructive discharge.”  The Court has permitted these claims to go forward because “constructive discharge” can be used as a predicate to a False Claims Act claim.

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Virginia Supreme Court Changes Non-Compete Law

The Supreme Court of Virginia recently overturned a 1989 decision concerning the validity of a non-compete clause and held that a clause identical to one that it previously held was valid, from the same company, is now invalid. The case is Home Paramount Pest Control Cos. v. Shaffer (Nov. 4, 2011).

Employers commonly use non-compete agreements (or, more fully, non-competition agreements or covenants not to compete) in order to prevent an employee from using information gleaned from the company to help a competitor.  Despite conventional wisdom and employee belief, these agreements are quite enforceable if drafted properly.  Proper drafting means that the contract is narrowly drawn to protect the employer’s legitimate business interest, is not unduly burdensome on the employee’s ability to make a living, and is not against public policy.  The employer bears the burden of proving each of these three factors and, when evaluating whether the employer has met that burden, Courts consider the function, geographic scope, and duration elements of the restriction.

The new rule:  non-compete agreements should rarely include language which prohibits a former employee from performing services “directly or indirectly” and in “any capacity” for a competing business.  The Virginia Supreme Court’s recent decision permits dismissal of such non-competes as a matter of law.  It is important for employers to very narrowly draft these contracts so that they only proscribe directly competitive activities.

In this case, the Supreme Court held that a non-compete clause in an employment agreement was over-broad and, therefore, unenforceable as a matter of law.  The employee/defendant at issue resigned from one pest control company and joined another during the time period for which he was bound to the non-compete agreement.  The former employer (Home Paramount), relying on the non-compete language, initiated a lawsuit alleging inter alia breach of contract and tortuous interference with contract.  The provision at issue stated:

“The Employee will not engage directly or indirectly or concern himself/herself in any matter whatsoever in the carrying on or conducting [the business of exterminating [and other similar] services as an owner, agent, servant, representative or employee . . . or in any manner whatsoever. . . .”

Although the Virginia Supreme Court held 20 years ago that a non-compete with identical language as this one was enforceable, the high court now states that it is not bound by its prior decision because the law has incrementally been changing.

The Court analyzed the growing body of case law on non-compete law – from Blue Ridge Anesthesia & Critical Care, Inc. v. Gidick, 239 Va. 369 (1990) to Omniplex World Services Corp. v. US Investigations Servs., Inc. 270 Va. 246 (2005) – in reaching its decision.  It then concluded that a non-compete which restricts an employee from working for competitors in “any” capacity requires the employer to prove a legitimate business interest to support such a broad prohibition.  It held that the prohibited activity in the non-compete agreement must be of the same type as that actually engaged in by the former employer.   In this case, the Court noted that a strict reading of the non-compete agreement would prohibit the employee from even passively owning stock in a publicly traded international conglomerate with a pest control subsidiary.  It held that this was over-broad.  If a former employer, like Home Paramount, wishes to prohibit its employees from working for its competitors in any capacity as stated in the non-compete, the employer has the burden of proving that it has a legitimate business interest for doing so.  Most employer’s will have a great deal of trouble meeting this burden, which could leave the door open for defendants to swiftly dismiss any claims that rely on such non-compete language.

Under Virginia law, even a narrowly tailored geographic scope and duration could not save a non-compete that was clearly over-broad in its functional prohibitions.  Given the competitive nature of today’s marketplace, businesses should consider a thorough review of its non-compete language to avoid the situation Home Paramount encountered.

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An Employee Who Can Work Full-Time but not Overtime is Not Disabled Under ADA

While the Americans with Disability Act (ADA) requires employers to reasonably accommodate a qualified individual with a disability, the ADA’s definition of disability excludes many common health conditions.  While the definition of disability was broadened by statute in 2008, the Fourth Circuit recently recognized that a disability did not exist under the old law where an employee could work 40 hours a week, but not overtime.  Thus an employer did not have to accommodate that employee by changing its overtime requirement, which barred him from working for many months.  The case is Boitnott v. Corning Inc., No. 10-1769 (4th Cir. Feb. 10, 2012).

In that case, the employee, Boitnott, a maintenance engineer at the defendant glass manufacturer, Corning Inc., was assigned to work rotating 12-hour shifts requiring that he spend two weeks on the day shift then switch to two weeks on the night shift.  After 13 years of employment, Boitnott had a heart attack resulting in abdominal complications.  After taking some time off, Boitnott returned to work, then experienced more heart trouble and was diagnosed with leukemia, all of which required that he take time off of work.  For almost a year, Boitnott’s doctor told him he could not work more than 8 hours a day, nor more than 40 hours per week, and also could not rotate night and day shifts.  Taking the position that Boitnott was not disabled because he could work a standard 40 hour workweek, Corning did not seek to accommodate Boitnott and refused to reinstate him because he could not comply with its rotating shift schedule.  (After Boitnott’s doctor cleared him to work some overtime, Corning devised a position that Boitnott could perform and reinstated him to that position.)

When he was out of work and restricted to working a normal 40-hour per week schedule, Boitnott filed a charge of disability discrimination against Corning and brought suit claiming that Corning violated the ADA.  The trial court granted summary judgment to the employer, and the Fourth Circuit affirmed based on the pre-2008 ADA definition of disability. The Fourth Circuit held that Boitnott was not “substantially” limited if he could handle a forty hour work week but was incapable of performing overtime due to an impairment. The court stated that the record contained no evidence indicating that Boitnott’s inability to work overtime significantly restricted his ability to perform a class of jobs or a broad range of jobs in various classes.

In so holding, the court cited decisions from a number of other Federal appeals courts (including the 1st, 3rd, 5th, 6th, and 8th Circuits) in finding that the pre-2008 ADA did not consider inability to perform overtime to substantially limit an individual in the major life activity of working.  Nevertheless, the court noted that after the 2008 amendments to the ADA, the regulations no longer require that an impairment substantially limit an employee in a “class of jobs or a broad range of jobs” to be a disability.  Thus it remains to be seen whether the post-2008 ADA requires an employer to reasonably accommodate an ailment that prevents the employee from working overtime.

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Failure to Post NLRB Notice is “Unfair Labor Practice”

On August 30, 2011, the National Labor Relations Board (“NLRB”) issued a rule mandating that all employers subject to the NLRA “post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information containing basic enforcement procedures.”  In addition, the rule stated that “[f]ailure by [employers] to post the employee notice may be found to interfere with, restrain, or coerce employees in the exercise of the rights” guaranteed by the NLRA.  The rule operates to toll the statute of limitations for filing an unfair labor practice charge against the employer.  In the words of one dissenting member of the NLRB, the NLRB has arbitrarily and capriciously “conjure[d] up a new unfair labor practice based on a new statutory obligation.”

This rule will have a dramatic effect on employers throughout the nation and leave them exposed to civil lawsuits by their employees.  Because of this, the National Association of Manufacturers filed a complaint against the NLRB in federal court seeking a judicial declaration that the new rule exceeds the NLRB’s authority.  They are requesting injunctive relief preventing the NLRB from implementing and enforcing the new rule.  As the case proceeds, NAM will, no doubt, argue that when Congress wants a notice-posting requirement, as it has expressly mandated in other federal labor and employment laws, such as Title VII, the ADEA, the FMLA, and OSHA, it puts the requirement in the statute.  Here, the absence of any expressed intent by Congress that employers post notice of NLRA rights is evidence that it did not intend for such a requirement to be imposed.  This is particularly true where the failure to post notice would itself be deemed an unfair labor practice.

Since the rule is scheduled to go into effect on November 14, 2011 and the lawsuit against the NLRB seeks a preliminary injunction, we could soon see a preliminary decision from the court at least outlining its initial view of the merits of the NLRB’s rulemaking.  But how the court may rule is anyone’s guess.  The case is being heard by Judge Amy Berman Jackson, a new judge who was recently appointed to the United States District Court for the District of Columbia by President Obama in 2011.  Previously a criminal and civil litigation defense lawyer in private practice, there is presently little basis for discerning Judge Jackson’s judicial philosophy.

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Employer is Not Entitled to Recover Attorney’s Fees When Victorious Against the EEOC

The Equal Access to Justice Act (EAJA) was designed to address the disparity of resources between the government and a private party to a lawsuit. Its mandatory fee provision requires the government to bear the litigation costs of a prevailing defendant, evening out the playing field between small businesses and the federal government. However, in EEOC v. Great Steaks, Inc., 2012 U.S. App.  LEXIS 1430 (4th Cir. 2012), the Fourth Circuit took away this provision for wrongly-accused employers in Title VII cases.

Usually when an employee files with the EEOC, the individual must ultimately pursue the claim. Only in rare circumstances when the EEOC thinks the claim has real merit or affects many employees will the agency take on the case. After successfully defending a sexual harassment lawsuit, Great Steaks, Inc., moved for an award of attorneys’ fees under three federal provisions: Title VII §2000e-5(k); the Equal Access to Justice Act  (EAJA) §2412(d); and 28 U.S.C. §1927.  The court held that none of the provisions applied, most significantly, the EAJA “mandatory” provision, thus taking away a potential weapon for wrongly-accused employers.

The EAJA’s provision applies to cases in which the United States is a party, and requires that the government bear the expense of litigation when it is the losing party in a civil action “unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.” The court rejected Great Steak’s argument that the mandatory fee provision was intended to supplement more limited attorneys’ fee provisions, such as the stringent Title VII provision.

Under Title VII’s provision, the trial court is granted the discretion to shift the defendant’s fees to the plaintiff if the plaintiff’s claims were frivolous, unreasonable, or groundless. However, if the judge allows the case to go to trial, and denies the defendant’s motion to dismiss after the presentation of all evidence, it is highly unlikely that the fee-shifting provision will apply.

The Fourth Circuit declined to reverse the trial court’s denial of Great Steak’s request for attorney’s fees for this reason: if the case went to trial, there must have been enough evidence that the case wasn’t groundless, unreasonable, or frivolous.

Great Steaks also argued for 28 U.S.C. §1927, a punitive provision and requires a showing of bad faith by the opposing party who “so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” The Fourth Circuit found that the EEOC’s case had obvious weaknesses, but that they did not amount to bad faith or vexatious multiplication of proceedings.

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Federal Court Holds That Termination of Employee Based on Wife’s Medical Condition Did Not Violate Federal Law

The federal Genetic Information Nondiscrimination Act (“GINA”) makes it unlawful for an employer “to fail or refuse to hire, or to discharge, . . . or otherwise to discriminate against any employee . . . because of genetic information with respect to the employee.”  The law defines such genetic information as including the genetic tests of family members of an individual.  Does this mean that an employee automatically has a viable lawsuit if he is discharged based on a genetic disease of a family member?  The answer, as a plaintiff in the Western District of Virginia recently discovered, is “no”.

In Poore v. Peterbilt of Bristol, L.L.C., an employee of Peterbilt claimed that he was terminated after disclosing in a health insurance questionnaire that his wife had been diagnosed with multiple sclerosis.  After he submitted the completed questionnaire, Peterbilt’s office manager allegedly asked the plaintiff when his wife was diagnosed with multiple sclerosis and the prognosis.  Three days later, he was terminated.

The plaintiff claimed that his termination violated GINA based on the theory that he was terminated as a result of his wife’s medical condition.  The plaintiff argued that because the statute defines “genetic information” as including “genetic tests of family members of an individual,” and because he was allegedly fired based on the results of his wife’s genetic tests, he was entitled to compensation for his termination.  The judge disagreed.

Consulting the statute’s legislative history, the judge noted that the intent of GINA is to prohibit employers from making a predictive assessment concerning an individual’s propensity to have an inheritable genetic disease or disorder based on an inheritable disease or disorder of a family member.  The key, according to the court, is whether the family member’s genetic traits are being used as a surrogate for the genetic traits of the employee.  The fact that an individual family member has been diagnosed with a disease or disorder is not considered “genetic information” if that disease or disorder relates only to the afflicted family member and not to the employee as a disease or disorder that he may also have.  Because the family member was a spouse, and not a blood relative of the employee, the employee could not show that the employer viewed the disease as one that he may have.  Thus, a claim that the employee was terminated because of a family member’s genetic traits that do not plausibly suggest any genetic traits of the employee is insufficient to maintain a lawsuit under GINA.

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Employers Cannot Put Class Action Waivers in Employment Agreements

Employment arbitration agreements that bar employees from filing class actions against their employers, and instead require cases to be brought separately, violate federal labor law, the National Labor Relations Board (“NLRB”) held this month.  The decision is D.R. Horton, Inc. and Michael Cuda. 357 NLRB No. 184. (http://tinyurl.com/89ec6w7). In that case, Michael Cuda worked for D.R. Horton, Inc., a new home builder, as a supervisor for ten months. Two years after resigning, he filed an unfair labor practice charge alleging that D.R. Horton’s Mutual Arbitration Agreement unlawfully barred him from filing a collective claim on behalf of a class of employees.

The NLRB agreed, finding a “substantive right to engage in specified forms of associational activity” in the statutory language of Section 7 of the National Labor Relations Act (“NLRA”), which grants employees the right “to engage in…concerted activities for the purposes of collective bargaining or other mutual aid or protection…” 29 U.S.C. §157. D.R. Horton’s chief defense was that the Federal Arbitration Act allows for the enforcement of arbitration agreements “so long as the litigant can effectively vindicate his or her statutory rights through arbitration.” Gilmer v. Interstate/Johnson Lane Corp., 500U.S. 20, 28 (1991).  In rejecting this argument and finding that the NLRA bars this common term of employment arbitration clauses, the NLRB effectively held that the NLRA trumped the FAA, and extended its own reach into territory typically governed by other federal law.

The Board held that the NRLA protected employees who signed these arbitration terms from losing their right to bring class actions, finding that the NRLA guaranteed employees access to these collective proceedings. Since this right was waived by D.R. Horton’s arbitration agreement, the NLRB found that the agreement was unlawful under the NLRA.

The Board nonetheless recognized some limits to its power over arbitration clauses, reasoning that, “an agreement requiring arbitration of any individual employment-related claims, but not precluding a judicial forum for class or collective claims, would not violate the NLRA, because it would not bar concerted activity.”

Amici curiae in this matter included the AFL-CIO, the United States Chamber of Commerce, the U.S. Secretary of Labor and the Equal Employment Opportunity Commission. 

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An Employee Sexually Assaulted Twice within Four Days Loses Harassment Claim – Employers Must Move Fast, but Not that Fast.

Under Federal law, an employer can be held liable for sexual harassment among co-employees, regardless of whether one has supervisory authority over the other. However, the employer will not be held liable if it promptly responds in a reasonable manner to stop the harassment. Additionally, to sustain a Title VII claim, the plaintiff must allege that the employer allowed harassment that was severe or pervasive.

In Davis v. City of Charlottesville School Board, 2011 U.S. Dist. LEXIS 137875 (2011), the Charlottesville School Board (CSB) was not held liable under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000 et seq., for two instances of sexual harassment by one employee against another occurring four days apart on a Friday and Monday, nor was the employer held liable for transferring, but not firing the offender.

The plaintiff, Sheila Davis, was first assaulted on Friday, December 11, 2009, by Warren Mawyer when he attempted to touch her breast and asked her if they were real or not. Immediately after this incident, Davis notified the assistant principal. In the second incident, the following, Monday, Mawyer grabbed Davis’ breast. Davis fought back to protect herself and reported it to her supervisors, who transferred Mawyer to another work location. Davis obtained a warrant against Mawyer, who was convicted and sentenced to 60 days in jail.

Davis’ Title VII employment discrimination claim was dismissed, however, for failure to present facts to show that the CSB was liable for Mawyer’s harassment. Employer liability results when the employer becomes aware of discrimination, fails to take effective action to stop it, and the discrimination is “severe or pervasive so as to alter the conditions of employment and create an abusive work environment.”

The court ruled that Mawyer’s harassment could not be imputed to the CSB; that “the allegation that the CSB failed to act fast enough between a Friday and the following Monday is insufficient to constitute a violation of Title VII.”

Access the opinion here: http://law.justia.com/cases/federal/district-courts/virginia/vawdce/3:2011cv00026/80403/26

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