I. PROFESSIONAL LITIGATION

Attorney Does Owe Duty to Client to Shop Around for Favorable Expert Opinions When Unfavorable Opinions are Received

In Solt v. Mattioni, LLP, Docket No. 2619-07T2, Superior Court of New Jersey, Burlington County (A.D. February 20, 2009), an unpublished opinion, plaintiff appealed from dismissal of their legal malpractice action against defendants. The Order granted defendants summary judgment after determining plaintiff's expert report amounted to an inadmissible net opinion.

Defendants had sought medical expert opinion regarding plaintiffs' condition as a result of exposure to carbon dioxide. However, the opinions received did not support the conclusion that plaintiff suffered a compensable injury. Plaintiff's expert opined that "if defendants get a medical report that is not helpful you go looking for another one."

The court recognized the duty of an attorney to timely formulate and implement a reasonable litigation strategy; however, the court noted that this does not include a duty to shop for favorable expert opinions when unfavorable opinions are received. The court, therefore, agreed that summary judgment was appropriate based on McCann's expert report lack of reference to authorities and its conclusory determinations based on personal views.

II. EMPLOYMENT LAW

Protection from Retaliation Provided by Title VII Extends to Employee Who Speaks Out About Discrimination During Employer's Internal Investigation.

In Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, 129 S.Ct. 846 (Jan. 26, 2009), filed a charge of a Title VII violation with the Equal Employment Opportunity Commission (EEOC), followed by this suit in District Court against her employer Metropolitan Government of Nashville and Davidson County ("Metro") for retaliation for speaking out about discrimination during an internal investigation.

In 2002, Metro began looking into rumors of sexual harassment by the Metro School District's employee relations director, Gene Hughes. During the investigation, Crawford was asked whether she had witnessed any inappropriate behavior on the part of Hughes. In response, Crawford described several instances of sexually harassing behavior by Hughes. Two other Metro employees also reported being sexually harassed by Hughes. Although Metro took no action against Hughes, it did fire Crawford and the two other accusers soon after finishing the investigation, saying, in Crawford's case, that it was for embezzlement.

The Title VII anti-retaliation provision has two clauses, making it "an unlawful employment practice for an employer to discriminate against any of his employees ... [1] because he has opposed any practice made an unlawful employment practice by this subchapter, or [2] because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). One is known as the "opposition clause," the other as the "participation clause." Crawford accused Metro of violating both clauses.

The District Court granted summary judgment for Metro holding that Crawford could not satisfy the opposition clause because she had not "instigated or initiated any complaint," but had "merely answered questions by investigators in an already-pending internal investigation, initiated by someone else." It concluded that her claim also failed under the participation clause, which Sixth Circuit precedent confined to protecting "'an employee's participation in an employer's internal investigation ... where that investigation occurs pursuant to a pending EEOC charge.'" The Court of Appeals affirmed on the same grounds.

The Supreme Court reversed on the grounds that Crawford's conduct was covered by the opposition clause. The court found that the statement Crawford gave to the investigator was covered by the opposition clause, "as an ostensibly disapproving account of sexually obnoxious behavior toward her by a fellow employee, an answer she says antagonized her employer to the point of sacking her on a false pretense." The court further found that Crawford's description of the sexually obnoxious behavior:

would certainly qualify in the minds of reasonable jurors as 'resistant" or 'antagonistic' to Hughes's treatment, if for no other reason than the point argued by the Government and explained by an EEOC guideline: 'When an employee communicates to her employer a belief that the employer has engaged in ... a form of employment discrimination, that communication" virtually always "constitutes the employee's opposition to the activity.'

Metro, relying on the Sixth Circuit panel's insistence on "active" and "consistent" opposition, argued that the lower the bar for retaliation claims, the less likely it is that employers will look into what may be happening outside the executive suite. The Supreme Court found this argument unconvincing citing its decisions in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), and Faragher v. Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998).

Ellerth and Faragher held an employer can be subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with authority over the employee. Therefore, "[e]mployers are . . .subject to a strong inducement to ferret out and put a stop to any discriminatory activity in their operations as a way to break the circuit of imputed liability." The Supreme Court held that the possibility that an employer might someday want to fire someone who might charge discrimination traceable to an internal investigation does not strike us as likely to diminish the attraction of an Ellerth- Faragher affirmative defense. As such, the court held that Crawford's conduct was covered by the opposition clause, and, therefore, did not reach plaintiff's argument that the Sixth Circuit misread the participation clause as well.

Court Approves Augment of Jury Award to Offset the Negative Tax Consequences of Lump-Sum Back Pay Award in Discrimination Case

In Eshelman v. Agere Systems, --- F.3d ---, 2009 WL 223858 (3d. Cir. Pa. Jan. 30, 2009), Plaintiff, Joan Eshelman, instituted a lawsuit against her former employer, defendant/appellant Agere Systems, Inc. (Agere) claiming, inter alia, that Agere discriminated against her in violation of the Americans with Disabilities Act (ADA). The jury found in Eshelman's favor, and awarded her back pay and compensatory damages totaling $200,000.00.

On appeal Agere argued, among other things, that the District Court improperly granted Eshelman's post-trial motion to augment the jury's award to offset the negative tax consequences Eshelman would incur from receiving a lump-sum back pay award. Eshelman argued that an additional award was warranted because the taxes she would have to pay on the lump sum award of back pay would be higher than what she would have paid had she received this pay in the normal course of employment (i.e., in the absence of discrimination). Agere argued that there is no statutory or case law that supports this aspect of the District Court's decision.

The court explained that because back pay awards under discrimination statutes are taxable, employees may be subject to higher taxes if they receive a lump sum back pay award in a given year. Therefore, receipt of a lump sum back pay award could lift an employee into a higher tax bracket for that year, meaning the employee would have a greater tax burden than if she were to have received that same pay in the normal course. This is the basis of plaintiff's argument that she should receive an additional sum of money to compensate for her added tax burden.

The court held that "a district court may, pursuant to its broad equitable powers granted by the ADA, award a prevailing employee an additional sum of money to compensate for the increased tax burden a back pay award may create." The court went on to state that "[w]ithout this type of equitable relief in appropriate cases, it would not be possible 'to restore the employee to the economic status quo that would exist but for the employer's conduct.'" The court held that the District Court did not err in granting such relief in the present case.

The court clarified its holding providing "We hasten to add that in so holding, we do not suggest that a prevailing plaintiff in discrimination cases is presumptively entitled to an additional award to offset tax consequences above the amount to which she would otherwise be entitled." The court noted that employees will continue to bear the burden to show the extent of the injury they have suffered.

Title IX Does Not Preclude Use of § 1983 to Redress Unconstitutional Gender Discrimination in Schools

In Fitzgerald v. Barnstable School Committee, 129 S.Ct. 788 (Jan. 21, 2009), parents of elementary school student filed a section 1983 action against school superintendent and school committee, claiming student-to-student sexual harassment in violation of Title IX and the Equal Protection Clause.

During the 2000-2001 school year, the daughter of Lisa and Robert Fitzgerald was a kindergarten student in the Barnstable, Massachusetts, school system, and rode the bus to school each morning. The student told her parents an 8-year-old boy was forcing her to lift her skirt and pull down her panties on the bus. But the boy denied the allegation and the school principal ruled it could not be corroborated. Local police refused to act. The parents began driving the girl to school, but the child said the incidents continued at school.

In April 2002, the Fitzgeralds filed suit in District Court, alleging that the school system's response to their allegations of sexual harassment had been inadequate, resulting in further harassment to their daughter. Their complaint included: (1) a claim for violation of Title IX against the Barnstable School Committee (2) claims under 42 U.S.C. § 1983 for violations of Title IX and the Equal Protection Clause of the Fourteenth Amendment against the school committee and superintendent, and (3) Massachusetts state-law claims against the school committee and superintendent. The school committee and the superintendent, filed a motion to dismiss, which the District Court granted as to the § 1983 claims and the state-law claims. On the Title IX claim, the school committee filed a motion for summary judgment, which the District Court also granted.

The Court of Appeals upheld the granting of summary judgment with respect to the Title IX claim. The court declined to consider plaintiffs' constitutional claims filed via Section 42 U.S.C. 1983, holding that the potential availability of relief under Title IX preempts additional, constitutional claims. The Court of Appeals concluded that "Congress saw Title IX as the sole means of vindicating the constitutional right to be free from gender discrimination perpetrated by educational institutions."

The Supreme Court found that this decision deepened a conflict among the Circuits regarding whether Title IX precludes use of § 1983 to redress unconstitutional gender discrimination in schools. The court's analysis led to the conclusion that "Title IX had no administrative exhaustion requirement and no notice provisions and thus parallel and concurrent § 1983 claims would not circumvent required procedures, and even where particular activities and defendants were subject to both Title IX and the Equal Protection Clause, the standards for establishing liability may not be wholly congruent." Therefore, the court held that "Title IX was not the exclusive mechanism for addressing gender discrimination in schools, or a substitute for § 1983 suits as a means of enforcing constitutional rights, and thus § 1983 suits based on the Equal Protection Clause were available in lawsuits alleging unconstitutional gender discrimination in schools."