EMPLOYMENT LAW

In Two Recent Holdings, The Supreme Court Continues Its Pro-Employee Position Regarding Claims Based on Retaliation

In CBOCS West, Inc. v. Humphries, ___ S.Ct. ___, 2008 WL 2167860 (May 27, 2008), Hendrick Humphries, an African American, sued CBOCS West claiming that he was dismissed because of racial bias and because he complained to managers that a black co-employee was also dismissed for race based reasons. Humphries filed a complaint in Federal District Court charging that CBOCS' actions violated both Title VII of the Civil Rights Act of 1964 and Section 1981 of the Civil Rights Act of 1866. The District Court dismissed Humphries' Title VII claims for failure to pay necessary filing fees on a timely basis and granted CBOCS' motion for summary judgment on Humphries' two Section 1981 claims. The Seventh Circuit affirmed on the direct discrimination claim, but remanded for a trial on Humphries' § 1981 retaliation claim, rejecting CBOCS' argument that Section 1981 did not encompass such a claim. CBOCS sought certiorari.

The Supreme Court rejected CBOCS argument and held that § 1981 encompasses retaliation claims including claims of retaliation against a person who has complained about a violation of another person’s contract-related right. This conclusion rests in significant part upon the Court’s adherence to precedence.

The Court considered Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969), as later interpreted by Jackson v. Birmingham Bd. of Ed., 544 U.S. 167, 176, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005). In Sullivan, the Court held that a retaliation claim could be brought under Section 1982. The Jackson Court relied on Sullivan in holding that Title IX of the Education Amendments of 1972 includes an anti-retaliation remedy, despite Title IX's failure to use the word “retaliation.” The Court also considered a long line of related cases interpreting Sections 1981 and 1982. (The Court has long interpreted Sections 1981 and 1982 alike because they were enacted together, have common language, and serve the same purpose of providing black citizens the same legal rights as enjoyed by other citizens. See, e.g.,Runyon v. McCrary, 427 U.S. 160, 183, 197, 190, 96 S.Ct. 2586, 49 L.Ed.2d 415.) The case law lead the Court to conclude that the view that Section 1981 encompasses retaliation claims is indeed well embedded in the law.

In support of its argument that section 1981does not encompass plaintiff’s claims, CBOCS relied on the recent Supreme Court case Burlington N. & S.F.R. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). In Burlington, a Title VII case, the Court distinguished between discrimination that harms individuals because of “who they are, i.e., their status,” for example, as women or as black persons, and discrimination that harms “individuals based on what they do, i.e., their conduct,” for example, whistle-blowing that leads to retaliation. 548 U.S., at 63, 126 S.Ct. 2405. CBOCS argued that the Court should draw a similar distinction here and conclude that Section 1981 only encompasses status-based discrimination. The Court noted that in Burlington, the status/conduct distinction was used to help explain “why Congress might have wanted its explicit Title VII antiretaliation provision to sweep more broadly (i.e., to include conduct outside the workplace) than its substantive Title VII (status-based) antidiscrimination provision. Burlington did not suggest that Congress must separate the two in all events.”

In Gomez-Perez v. Potter, __ S.Ct. __, 2008 WL 2167189 (May 27, 2008), Petitioner, a 45-year-old postal worker, filed suit claiming that her employer had violated the federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 633a(a)-which requires that “[a]ll personnel actions affecting employees ... at least 40 years of age ... be made free from any discrimination based on age”-by subjecting her to various forms of retaliation after she filed an administrative ADEA complaint. The District Court granted respondent summary judgment. The First Circuit affirmed on the ground that § 633a(a)'s prohibition of “discrimination based on age” does not cover retaliation.

Following the reasoning of Sullivan and Jackson, supra, the Court interpreted the ADEA federal-sector provision's prohibition of “discrimination based on age” as likewise proscribing retaliation. The Court found that the statutory language at issue in this case (“discrimination based on age”) is not materially different from the language at issue in Jackson (“ ‘discrimination’ ” “ ‘on the basis of sex’ ”) and is the functional equivalent of the language at issue in Sullivan, see Jackson, supra, at 177, 125 S.Ct. 1497 (describing Sullivan as involving “discrimination on the basis of race”). And the context in which the statutory language appears is the same in all three cases; that is, all three cases involve remedial provisions aimed at prohibiting discrimination.

The Court noted that its considerations of stare decisis strongly supports the adherence to the view that Section 1981 encompasses retaliation claims is indeed well embedded in the law.

PROFESSIONAL LIABILITY

Private Transactions Between Attorneys and Clients are Incapable of Supporting a Claim for Violation of Civil Rights Under Section 1983

In Perez v. Griffen, slip copy, 2008 WL 2383072 (M.D.Pa. June 9, 2008), plaintiff, an inmate housed by the Federal Bureau of Prisons, brought a lawsuit alleging legal malpractice and a violation of his civil rights against John J. Griffen and the Law Offices of John J. Griffen.

In August 2003, plaintiff, while incarcerated, suffered a severe asthma attack for which he alleges he received inadequate treatment. Plaintiff allegedly retained Griffen to pursue a claim against federal prison officials for the medical treatment administered during the incident. Plaintiff commenced the lawsuit pro se. The defendants in the underlying matter filed a motion for summary judgment in early 2005, which plaintiff sent to Griffin to enable him to prepare a response. Griffin never opposed the motion. Despite plaintiff’s attempts to contact him, Griffin remained unresponsive. Plaintiff eventually prepared and filed opposition documents without Griffin's assistance. On November 7, 2006, the court entered summary judgment against plaintiff. Griffin allegedly continues to retain plaintiff's legal file containing numerous documents.

Plaintiff alleged that Griffin failed to prosecute the action and that this omission constitutes legal malpractice, fraud, breach of contract and violation of plaintiff’s civil rights. Defendant filed a motion for judgment on the pleadings arguing that plaintiff’s civil rights claim is not actionable because Griffin is not a state actor and that the malpractice, fraud, and contract claims fail because plaintiff has not provided a certificate of merit as required by the Pennsylvania Rules of Civil Procedure.

The court granted defendant’s motion regarding the legal malpractice claim based on plaintiff’s failure to file a certificate of merit in accordance with Rule 1042.3 of the Pennsylvania Rules of Civil Procedure. Rule 1042.3 requires that a plaintiff alleging a breach of a professional duty produce a certificate attesting to the colorable merit of the plaintiff's claim. The rule applies to pro se and represented plaintiffs alike and constitutes a rule of substantive state law with which plaintiffs in federal court must comply. The court rejected plaintiff’s argument that the certificate of merit requirement does not apply because Griffin's actions qualify as fraudulent conduct. Further, the court held that the plaintiff’s failure to file a certificate of merit vitiates the contract and fraud claims stating that “[b]oth of these actions implicate the professional duties that Griffin owed to Perez;” therefore, the claims fall within the purview of Rule 1042.3.

Finally, the court rejected plaintiff’s section 1983 claims for violation of his constitutional rights. Plaintiff’s claims were based on defendant’s failure to oppose the summary judgment motion which plaintiff alleges deprived him of his rights to counsel, to meaningful access to court, and to petition the government for redress of grievances. The court held that plaintiff’s complaint fails to allege that Griffin engaged in any action under color of state law as required by section 1983 providing:

The complaint recounts a purely private transaction in which Perez “retained the legal services of the defendant[ ]” to pursue “medical negligence claims” on his behalf. Perez's § 1983 claim arises exclusively from Griffin's conduct during the course of representation. Perez has not alleged that Griffin acted on behalf of a government entity or engaged in any conduct “fairly attributable to the state.” . . . Purely private transactions between attorneys and clients are incapable of supporting a claim for redress under § 1983.