Docket – April 23, 2019

4th U.S. Circuit Court of Appeals

Haynes v. Waste Connections Inc. (P), 4th Cir. (Gregory) from DSC at Spartanburg (Herlong).

The district court erred in granting summary judgment for an employer as to the plaintiff’s race discrimination claims.

Here, a white comparator with the same supervisor had several workplace infractions, including twice using a cellphone while driving, driving while distracted, and responding to a traffic situation late. The comparator also became angry and yelled at the supervisor before quitting his job. Yet he was permitted to return to his job, while the plaintiff, a black man who had fewer infractions and did not yell at his supervisor, was terminated and not permitted to return. A reasonable factfinder could conclude that the employees were appropriate comparators because they dealt with the same supervisor, were subject to the same standards, and engaged in similar conduct. Indeed, it appears that the comparator, who had more infractions and was less respectful to his superiors, may have engaged in more egregious conduct yet received more favorable treatment.

Even assuming that the plaintiff’s infractions caused damage while his comparator’s didn’t, this fact alone wouldn’t necessarily end the comparator analysis. Especially given the dangerous nature of the comparator’s offenses, a factfinder could reasonably determine that the two were proper comparators.

Moreover, the employer’s reason for the plaintiff’s termination has changed substantially over time. This change is sufficient evidence of pretext. The employer now asserts for the first time during this litigation an entirely different reason for the termination than was offered initially: the plaintiff’s poor attitude. The initial reason was “job abandonment,” even though the plaintiff’s behavior didn’t meet the employer’s policy definition for that cause. While an employer can certainly expand on its original reason for a termination, such evidence of substantial changes to the proffered reason for the termination in this case permits an inference of pretext.

Reversed and remanded.

United States v. Winbush (P), 4th Cir. (Gregory) from SDWV at Charleston (Copenhaver).

The district court erred in substituting a previously unidentified conviction to sustain the appellant’s “career offender” designation. Thus, he must be resentenced without that enhancement.

By habeas petition, the appellant brought a claim for ineffective assistance of counsel based on failure to challenge his designation as a career offender. While the district court found that one of the predicate offenses identified by the state didn’t qualify as a crime of violence and thus could not support a career offender designation, the court nevertheless found no prejudice because the designation could be supported by another conviction – even one that the state didn’t identify as a basis for enhancement at sentencing. This substitution was impermissible and, at any rate, the substitute conviction for robbery does not qualify as a crime of violence.

Reversed and remanded.

Court of Appeals of Virginia

Conner v. City of Danville (P), CAV (Beales) from Va. WCC.

The Virginia Workers’ Compensation Commission did not err in denying the claimant benefits, because she failed to prove that her injuries arose out of her employment as a police corporal. When she apparently slipped and almost fell on the wet grass, she was not chasing a suspect.

There was no evidence that the claimant needed to pursue the suspect or otherwise keep him under her control. Further, the Commission did not err in concluding that the claimant’s employment did not collaborate in causing her injuries. She wasn’t required to interview the subject outside on the porch while subject to the elements. The fact that her job happened to bring her to the location where she was injured is insufficient to show that her injury actually arose out of her employment.

Moreover, even though the claimant’s injury occurred during a weather-related event, the Commission properly found that her injury was caused by an Act of God and did not arise from her employment. The claimant had no greater risk than anyone else who happened to be outside that day.

The plain language of Code § 65.2-301.1 clearly still requires the public safety officer to prove that her injuries “arose out of” the employment, and here the claimant failed to do so.


Jones v. Commonwealth (U), CAV (Clements) from Henrico (Hicks).

The trial court erred in denying the appellant’s motion to suppress evidence following a traffic stop.

The initial search of lottery tickets in the appellant’ car door was unlawful; all evidence stemming from that search should have been suppressed. A police officer may seize and search an item only if its “incriminating character” is “immediately apparent.” The record here does not establish that fact.

Further, the statements that the appellant made to the officers and the additional evidence found at his house also should have been suppressed. This evidence is not attenuated from the primary taint associated with the evidence initially found in appellant’s car.

Reversed and remanded.

Categories: Daily Dockets

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