EMPLOYMENT LAW ISSUES

Claim For Retaliation Under Title VII Is Unsuccessful Based on Long-Standing Animosity Between Parties

In Leboon v. Lancaster Jewish Community Center, --- F.3d ---, 2007 WL 2713029 (3d Cir., Sept. 19, 2007), Plaintiff-appellant Linda LeBoon, an evangelical Christian, was employed as a bookkeeper by the Lancaster Jewish Community Center Association (LJCC) from November, 1998, until August 30, 2002, when she was terminated. Plaintiff brought a Title VII action against the community center alleging employment discrimination based on religion, and retaliation. The United States District Court for the Eastern District of Pennsylvania granted summary judgment in favor of the community center and plaintiff appealed.

This case involves the LJCC, a non-profit corporation whose mission was to “enhance and promote Jewish life, identity, and continuity.” At the beginning of 2002, the LJCC hired Natalie Featherman as the new interim Executive Director. The LJCC was in serious financial trouble when Featherman took over. LeBoon admitted to not trusting Featherman and also stated that her relationship with Featherman began to deteriorate in the spring of 2002 because of a memo Featherman wrote directed at two other LJCC employees.

In March, 2002, a custodian named Troy Rollman was terminated. LeBoon testified she opposed this termination because she believed it was motivated by a disability that resulted in a speech impediment. On May 30, 2002, Featherman terminated Sandy Simms, an African-American employee. LeBoon claims, with the support of a coworker's affidavit, that she complained to Featherman that Simms was fired because of her race. In Summer of 2002, Featherman concluded that LeBoon's position was unnecessary and could be performed by another co-worker. On August 30, 2002, three months after Simms' discharge and six months after Rollman's, Featherman fired LeBoon.

LeBoon filed suit claiming that she was terminated because she is a Christian and Featherman learned that LeBoon had attended a Jews for Jesus concert a few days before her termination, or, alternatively, in retaliation for LeBoon's complaints about the terminations of Rollman and Simms.

The Magistrate Judge granted summary judgment to the LJCC on LeBoon's claim of religious discrimination because it found that the LJCC was a “religious organization” exempted from compliance with the religious discrimination provisions of Title VII by Section 702 of the Civil Rights Act of 1964. The Appeals Court affirmed dismissal of the religious discrimination claim.

The Magistrate Judge also granted summary judgment on Plaintiff’s claim of retaliation under Title VII holding that “although LeBoon's evidence, considered in the light most favorable to her, supported the conclusion that she had opposed conduct by the LJCC that she believed to be unlawful discrimination, she had not produced enough evidence to allow a reasonable fact-finder to find that she was fired because of her complaints.” 2007 WL 2713026 at *12.

The Court of Appeals agreed with the Magistrate Judge. The Court stated that to establish a prima facie case of retaliation under Title VII, a plaintiff must show that (1) she engaged in protected activity, (2) the employer took a materially adverse action against her, and (3) there was a causal connection between the protected activity and the employer's action. Moore v. City of Philadelphia, 461 F.3d 331, 341-42 (3d Cir.2006).

The Court found that LeBoon clearly suffered a materially adverse action, since she was terminated from her job and that she proffered evidence that she engaged in activity protected by Title VII. However, the Appeals Court questioned whether LeBoon placed enough evidence in the record to create a genuine issue of material fact as to whether there was a causal link between her complaints and her termination. Plaintiff argued that t”he causal link is established by the temporal proximity of her complaint to her termination (three months) and by several episodes in the intervening periods that show that her relationship with Featherman deteriorated after her complaint.” 2007 WL 2713026 at *12.

The Court stated, “[a]lthough there is no bright line rule as to what constitutes unduly suggestive temporal proximity, a gap of three months between the protected activity and the adverse action, without more, cannot create an inference of causation and defeat summary judgment” 2007 WL 2713026 at *13. (citiations omitted).

The Court found it was undisputed that LeBoon started having difficulties with Featherman almost immediately upon Featherman's appointment as Executive Director. The Court held:

Thus, although the evidence in the record clearly shows a tense relationship between LeBoon and Featherman, it does not sustain the inference that it was caused by LeBoon's protected activity. Rather, there is a clear pattern of LeBoon's complaining to Board members about Featherman or insisting on respect for formalities and Featherman's displeasure at these reports and limitations on her authority even before any mention of possible discriminatory conduct on the part of the LJCC; there are also clear indications that LeBoon was not the only person who suffered the consequences of complaining to the Board about Featherman.

* * * * *

We agree with the District Court that no reasonable jury could find that LeBoon's termination was caused by her complaint about the termination of an African-American coworker, and will affirm the grant of summary judgment on LeBoon's retaliation claim.

2007 WL 2713026 at *14.

The holding in this case effectively limits an employee from brining a successful retaliation claim against his employer if there is evidence of long standing animosity between the parties. A recent ruling by the Supreme Court of New Jersey also resulted in limiting an employee’s ability to make a retaliation claim under the LAD and making it easier for employers to defend such. See Carmona v. Resorts International Hotel, Inc., 189 A.2d 354, 915 A.2d 518 (2007) (holding complaint by employee that triggers retaliation claim under New Jersey’s Law Against Discrimination (“LAD”) must be made in good faith and on reasonable basis and investigative reports prepared by employer that provide independent basis for employee’s discharge admissible as non-hearsay evidence).

Both Pennsylvania and New Jersey courts have followed a trend of limiting retaliation claims despite the United States Supreme Court ruling in Burlington Northern & Santa Fe Railway Co. v. White, 126 S.Ct. 2405 (U.S. 2006) broadening the protection an employee receives from anti-retaliation provisions under Title VII.

PROFESSIONAL MALPRACTICE ISSUES

In Pennsylvania, Legal Malpractice Matters are Subject to a Strict Time Bar

In Wachovia Bank v. Ferretti, --- A.2d---, 2007 W.L. 3104914 (Pa. Super. October 25, 2007), Wachovia appealed from a grant of Summary Judgment in favor of Renee Lynne Ferretti, Esquire, and Brown Solt & Ferretti, whereby the court dismissed Wachovia’s complaint based on a Statute of Limitations bar.

In 1989, Ms. Ferretti, through her law firm, represented Meridian, the predecessor of Wachovia, in several commercial loan transactions. In 1990, a default was taken on one such loan. A Confession of Judgment was entered in 1991. In December 1991, a second Confession of Judgment was entered, this one against Ralph Pisani, a surety on the loan. The second Confession of Judgment was entered in Lehigh County for an amount just over $6 million. In January 1992, the judgment was transferred to Bucks County for execution. In August 1992, Meridian and Pisani reached an agreement to settle the matter for less than the $6 million. As a result, in September 1992, Meridian, through Ms. Ferretti, filed a Praecipe in Lehigh County, indicating that the action was settled, and acknowledging satisfaction of judgment. Ms. Ferretti also filed a Praecipe in Bucks County to discontinue the matter, but failed to have the judgment marked satisfied.

In October 1994, Mr. Pisani brought suit against Meridian seeking liquidated damages, after learning that the judgment had not been marked satisfied in Bucks County. In August 1995, Ms. Ferretti had the Bucks County judgment marked satisfied. Thereafter, in 1996, Meridian retained new counsel in reference to Mr. Pisani’s suit for liquidated damages.

In November 1998, the petition for liquidated damages was denied. On appeal, the matter was reversed and remanded. In December 2000, on remand, the trial court found that the claim for liquidated damages was barred by the statute of limitations. That finding was affirmed on appeal. Thereafter, a petition for allowance of appeal was filed with the Supreme Court of Pennsylvania.

While the petition was pending, the Supreme Court ruled in another matter that a six year statute of limitations should apply in such a matter, and not the two year statute of limitations which was applied by the lower court. The Supreme Court granted the petition for allowance of appeal, and in September 2002, reversed the dismissal and remanded the matter. In June 2003, the trial court found for Pisani, in the amount of $3 million in liquidated damages. The trial court’s decision was affirmed on appeal, and Meridian’s petition for allowance to appeal was denied by the Supreme Court.

Wachovia, the successor in interest to Meridian, filed a Writ of Summons against Ms. Ferretti and her law firm in September 2005. The Complaint was filed in January 2006, alleging professional negligence and breach of contract. Shortly thereafter, Ms. Ferretti and the law firm moved for judgment on the pleadings, arguing that the matter was barred by the statute of limitations. The trial court ruled in favor of Ms. Ferretti and her law firm, dismissing the Complaint with prejudice. Specifically, the trial court found that the negligence claim, which carried a two year statute of limitations, accrued in June 2003, the time that the judgment was entered. Additionally, the breach of contract claim had accrued in October 1994, when the underlying suit was filed. Accordingly, the four year statute on that matter, as well as the two year statute on the negligence matter, had run prior to the filing of the Complaint. Wachovia appealed that ruling.

On appeal, Wachovia argued that the actual loss did not accrue until entry of the judgment on June 30, 2003, and that the statute was tolled until completion of the appeals process on July 7, 2005. The trial court, however, noted that it is not the revelation of an actual loss, but the occurrence of the breach that triggers the statute of limitations. Such a claim begins to run when the client reasonably discovered or should have discovered the injury. Further, the court found that the pendency of the appeal in the underlying case did not toll that statute of limitations. Applying this rule to both the legal malpractice and the breach of contract causes of action, the court found that, even viewing the facts in the most favorable to Wachovia, Wachovia and/or its predecessor, Meridian, should reasonably have been aware of the alleged breach on or about October 20, 1994, the date that Pisani initiated proceedings for liquidated damages. Accordingly, the two year statute of limitations on the professional negligence matter would have expired in 1996, and the four year statute of limitations for a breach of contract would have expired in 1998. Because the matter was not filed until 2005, the matter was barred by the statute of limitations. Accordingly, the appellate court affirmed the dismissal entered by the trial court.