Monday, January 14, 2008
Update from SCOTUSblog: Another of the cases that the Supreme Court had agreed to decide during the current Term has now been settled and thus has been dismissed — the case of Huber v. Wal Mart Stores (07-480). The Court released a dismissal order Monday, separate from a series of orders based on actions at last Friday’s Conference.
BUT add another potential case:
Among Monday’s orders, the Court asked the U.S. Solicitor General for the government’s view on whether workers may settle with their employers their claims under the Family and Medical Leave Act. The issue arises in Progress Energy v. Taylor (07-539). The Fourth Circuit Court, ruling in conflict with the Fifth Circuit Court, decided that a Labor Department regulation barred both past and future waiver of all FMLA rights. The Labor Department has taken the position that its regulation permits backward-looking release of claims under that law.
After Engquist was laid off from her state job, she won a jury verdict based in part on an alleged violation of the equal protection clause. The 9th Circuit reversed this part of the case. The US Supreme Court granted certiorari to review the 9th Circuit judgment. Oral argument probably will be scheduled for April.
The jury found liability under the equal protection clause because the defendants "intentionally treat[ed] the plaintiff differently than others similarly situated with respect to the denial of her promotion, termination of her employment, or denial of bumping rights without any rational basis and solely for arbitrary, vindictive, or malicious reasons." This was done on a theory that Engquist was a "class of one," under which a plaintiff can prevail without claiming to be in a multi-member class such as is involved in race and sex discrimination.
The 9th Circuit held, as a matter of first impression, that "the class-of-one theory is not applicable to the claims of public employees." Following Village of Willowbrook v. Olech, 528 US 562 (2000), the 9th Circuit has applied the class of one theory to regulatory land use cases. Other Circuits have applied the theory to public employment decisions. The 9th Circuit concluded that the rights of public employees are not as broad as the rights of ordinary citizens, the need for review under equal protection analysis is "thin" due to other legal protections enjoyed by public employees, and "prohibiting arbitrary public employer actions would also upset long-standing personnel practices."
By my count, this is the ninth labor and employment case to be decided by the Supreme Court this term: Holowecki, Mendlesohn, LaRue, Kentucky Retirement Systems, Gomez-Perez, CBOCS Humphries, Chamber of Commerce v. Brown,
Huber, and Engquist. Additionally, the Supreme Court has asked the views of the SG in Gulino and has recommended cert in Crawford.
A whopping 11 labor and employment cases may be heard by the Supreme Court cases may be heard by the Supreme Court this year! In other words, if you are not attuned to the L&E world, you are missing a big part of what is going on in the judiciary these days.