Docket – November 28, 2018

4th U.S. Circuit Court of Appeals

Ray v. Int’l Paper Co. (P), 4th Cir. (Keenan) from DSC at Spartanburg (Cain).

The district court erred in granting summary judgment as to the appellant’s claims that she suffered a hostile work environment and retaliation until Title VII of the Civil Rights Act.

The record could support a jury determination that the appellant suffered a tangible employment action when her supervisor eliminated her voluntary overtime work. Ray testified that his decision prevented her from performing higher-paying work, negatively affecting her income. Previously, the appellant was regularly permitted to work for four hours before her shift at time-and-a-half. A reasonable jury could determine that losing this income constituted a significant change in her benefits.

The appellant testified that her supervisor repeatedly had offered her money in exchange for sex. On one occasion after eliminating her ability to perform voluntary overtime work, he asked her whether she wanted to make extra money and told her to meet him after work. It’s impossible to separate his motive for eliminating her voluntary overtime from his inappropriate conduct.

The appellant also has adduced evidence that she earned substantially less income after complaining about her supervisor’s conduct. On its face, this decrease in income constituted an adverse employment action. She complained about her supervisor multiple times; he learned about these complaints and confronted her. Around the same time, he prevented her from her usual practice of performing voluntary overtime work.

Summary judgment vacated and remanded.

Ott v. Md. Dep’t of Pub. Safety & Corr. Servs. (P), 4th Cir. (Gibney) from DMD at Baltimore (Bennett).

In the past, courts have applied Maryland’s three-year general limitations period for civil cases to claims under the federal Rehabilitation Act. However, Maryland’s Fair Employment Practices Act, amended to align more closely with the Rehabilitation Act, qualifies as the most analogous Maryland law to the Rehabilitation Act. The MFEPA’s two-year statute of limitations applies and bars the appellant’s claims. The appellant cannot avoid the time bar under the equitable tolling doctrine’s exacting standards.


United States v. Allen (P), 4th Cir. (Keenan) from WDNC at Asheville (Cogburn).

The appellant’s conviction under 21 U.S.C. § 843(b) is a “controlled substance offense” that served as a valid predicate offense for enhancing his base offense level under U.S. Sentencing Guidelines § 2K2.1(a)(2).

Commentary to Guidelines § 4B1.2 states that a conviction is a “controlled substance offense” if the “underlying offense” is a “controlled substance offense.” This particular provision serves an explanatory function by describing one way in which a “controlled substance offense” may be committed: by using a communication facility. The inclusion of § 843(b) in Application Note One as a “controlled substance offense,” when the underlying offense also is a “controlled substance offense,” is authoritative and controlling.


U.S. District Court – Virginia Eastern

IBM was not obligated to pay its employee uncapped commissions under either an oral or implied contract. IBM lacked any intent to bind itself to pay such commissions; rather, it tended to retain sole discretion over the commission amount, if any. Thus, no meeting of the minds occurred as to the claim now advanced by the employee.
IBM also had no reasonable expectation that it should pay a greater commission, so no claim for quantum meruit is viable. And no specific allegations support the plaintiff’s claim for fraudulent misrepresentation based on an intent to deceive.
 Motion to dismiss granted.

U.S. District Court – Virginia Western

Poore v. Main St. Am. Assurance Co., WDVA at Abingdon (Jones).

A homeowners’ insurance policy does not cover the plaintiffs’ claim for damage due to mold that occurred because of water infiltration into their house over time from a leaky gutter.

A single phenomenon that is clearly an excluded risk under the policy was not meant to become compensable because in a philosophical sense it can also be classified as water damage; it would not be easy to find a case of rot or dampness of atmosphere not equally subject to that label, and the mold exclusions would become practically meaningless.

Defendants’ motion for summary judgment granted.

Categories: Daily Dockets

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