Docket – March 20, 2019

4th U.S. Circuit Court of Appeals

Cabrera Vasquez v. Barr (P), 4th Cir. (Gregory) from BIA.

The Board of Immigration Appeals failed to fully consider the evidence in support of the petitioner’s claim under the Convention Against Torture.

Gang members told the petitioner and her son that they would be killed by gang members if they didn’t leave their native El Salvador within 24 hours. That was the second death threat the mother and son received. When local law enforcement refused to provide any form of aid, mother and son made their journey to the United States and sought CAT relief.

In considering their claims, the Board erred by limiting its government-acquiescence review to country-condition reports that showed the government was making efforts to fight the gangs in El Salvador. The Board entirely failed to address the petitioner’s testimony that she twice sought the aid of local police and twice was turned away. When she presented evidence of the death threats she and her son received, she was laughed at and her son was accused of being a gang member himself. This testimony is material to the petitioner’s claim that Salvadoran officials turned a “blind eye” to the death threats.

Petition for review granted; vacated and remanded.

U.S. District Court – Virginia Western

Hardy v. Lewis Gale Med. Ctr. LLC, WDVA at Roanoke (Dillon).

In this putative class action alleging employment discrimination and wage violations, the court concludes that the Equal Employment Opportunity Commission’s early right-to-sue regulation, 29 C.F.R. § 1601.28(a)(2), is invalid.

Congress intended for the EEOC to have control over charges of discrimination for 180 days. During this time, the agency can investigate a charge and dispose of it in one of the four ways listed in 42 U.S.C. § 2000e-5(f)(1): conciliation, filing suit on behalf of the aggrieved person, dismissing the charge, or, if none of these actions are taken within the 180 day period, notifying the aggrieved person of his or her right to sue. The EEOC’s regulation at issue adds a fifth option, allowing it to issue a notice of right to sue earlier than 180 days, upon a determination that it will be unable to complete the charge’s processing within that period. The EEOC is not permitted to alter this framework through its rule-making authority.

Thus, the Title VII claims of those plaintiffs who received right-to-sue letters from the EEOC in fewer than 180 days must be remanded to the agency.

The plaintiffs’ claims under the Fair Labor Standards Act also may proceed as to one day of training for which they allege they were not compensated, and as to the plaintiffs’ claim that they worked paid time off and double shifts for the defendant to attend trainings by a third party alleged to be a joint employer.

Motion to dismiss granted in part and denied in part.

Categories: Daily Dockets

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