Docket – February 19, 2019

4th U.S. Circuit Court of Appeals

No. 17-1943, Feb. 19, 2019. 4th Cir. (Thacker) from EDVA at Alexandria (Hilton).

The district court correctly held that an employer was entitled to summary judgment as to an employee’s Rehabilitation Act discrimination claim and FMLA retaliation claim, arising from the employer’s decision not to hire her for a permanent position. However, the district court erred in granting summary judgment as to the employee’s FMLA interference claim, which involved genuine issues of material fact to be decided by a jury.

The employee failed to demonstrate that the employer refused to make a reasonable accommodation for her depression. The record shows that the employer provided a reasonable accommodation; when she failed to follow that plan, her supervisors attempted a new accommodation: referring her to an employment assistance program. But her attendance problems persisted.

Because the employee didn’t demonstrate that the purported basis for not hiring her was merely a pretext for discriminating against her on the basis of her depression, and because her attendance problem was a legitimate and nondiscriminatory reason to not hire her, summary judgment was appropriate on her Rehabilitation Act discrimination claim.

However, the district court incorrectly concluded that the employee’s disclosure of her depression was insufficient to put her employer on notice that she could have qualified for FMLA protections.

The record contains evidence that if the employee had known that the FMLA protected her position, she would have used only sick leave for her leave of absence. Instead, she used a combination of sick leave and annual time to take four weeks off. A jury could find that she was prejudiced by the employer’s failure to inquire into the availability of FMLA leave and thus interfered with her FMLA rights.

Affirmed in part, vacated in part, and remanded. Judge Gregory concurred in part and dissented in part.

Court of Appeals of Virginia

Amonett v. Commonwealth (P), CAV (Humphreys) from Fairfax (White).

Neither precedent nor the record supports the appellant’s proposition that police officers’ promises of leniency constitute a binding immunity agreement requiring dismissal of his indictment or rendering his incriminating statements involuntary or otherwise subject to suppression. Because the appellant didn’t provide a transcript of the suppression hearing below, this court can’t say that the circuit court erred in denying the motion to suppress.

In any event, the circuit court correctly concluded that the existence of an immunity agreement was a question of law for the trial court, not the jury.


U.S. District Court – Virginia Eastern

Dawson v. Wash. Gas Light Co., EDVA at Alexandria (Hilton).

A plaintiff has stated claims for which relief can be granted as to discrimination and retaliation while he was employed by the defendant.

The plaintiff is a self-described biracial, light-skinned man. He experienced harsh treatment from his first supervisor at work, who yelled at him and stated his dislike for “half-breeds” (ostensibly discussing canines). His second supervisor also treated him more harshly than other employees not in protected classes. The plaintiff was disciplined more than once for infractions that were found not to be his fault after the plaintiff filed grievances.

While any single one of the unfortunate instances he alleges may not itself be sufficient for a discrimination claim, their combined effect may demonstrate discriminatory animus. The plaintiff also alleges adverse employment actions including reduced wages, severe discipline, and termination. The plaintiff also alleges that he was often disciplined soon after he lodged complaints about his treatment.

Motion to dismiss granted in part and denied in part.

U.S. District Court – Virginia Western

Sines v. Kessler, WDVA at Charlottesville (Moon).

The court denies the defendant’s motion to quash the plaintiffs’ subpoenas to Twitter,, Cloudflare, and Hatreon. Construing the motion to quash as a protective order, the magistrate found that the defendant couldn’t claim any hardship under Federal Rule of Civil Procedure 26.

The defendant never raised the argument to the magistrate that the subpoenas in question infringe on his and his supporters’ associational rights under the First Amendment. But the associational-privilege argument is without merit. The subpoenas at issue here do not seek information courts have previously found covered by the First Amendment’s associational privilege, such as the identities of rank and file members of an advocacy organization, mailing lists and lists of conference attendees, contributor lists, or past political activities of the members of an organization.

The magistrate’s opinion denying the defendant’s motion to quash is neither plainly erroneous nor contrary to law.

Virginia Circuit Courts

B.B. v. T.B., Fairfax (Devine).

In this divorce case, the plaintiff has no valid Fifth Amendment privilege against self-incrimination as to any acts of adultery that occurred more than one year ago.

In Virginia, adultery is a Class 4 misdemeanor, punishable by a fine of up to $250, unless such adultery involves another whom the person is forbidden to marry, in which case it is a Class 1 misdemeanor with a penalty of up to 12 months in jail and/or a fine of up to $2500. A one-year statute of limitations applies to misdemeanor adultery offenses.

Acts of adultery that occurred more than one year prior to the date of the plaintiff’s discovery response could not be used as a basis for a criminal prosecution of under Virginia law. Therefore, the plaintiff can’t claim a privilege against self-incrimination as to such acts. But the plaintiff hasn’t waived the privilege for acts that may have occurred after that date.

Motion to compel granted in part and denied in part.

Categories: Daily Dockets

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