Fourth Circuit Court of Appeals Reverses Dismissal and Revives Case Against Family Dollar Stores

The Fourth Circuit Court of Appeals has given the pay discrimination class action against Family Dollar Stores, Inc. a second chance. Fifty-one female store managers of Family Dollar brought suit in federal court in Alabama against Family Dollar, claiming they were paid less than male store managers for doing the same work. Family Dollar then got the case transferred to a different court in North Carolina. Family Dollar then filed a motion for judgment against the Plaintiffs, arguing that the Plaintiffs could not meet the requirements for class action certification under the federal rules.

During this time, another major class action for gender discrimination was going on, the Dukes v. Wal-Mart case. Dukes v. Wal-Mart was a class action sex discrimination case brought on behalf of 1.5 MILLION female employees of Wal-Mart. At the time, that case had been reversed in favor of the Plaintiffs by the Ninth Circuit on the class action certification issue, but Wal-Mart took the case to the U.S. Supreme Court for . . . ahem  . . . further consideration . . . .

Meanwhile, in the Family Dollar case, the trial court in North Carolina originally denied Family Dollar's motion for judgment against the Plaintiffs. HOWEVER, it appears that Family Dollar succeeded in getting the case transferred to yet another different judge who would . . . ahem . . . maybe see the case differently. And indeed the new judge did. That is because, while the case was being stalled and moved around to different courts and different judges (it appears here that Family Dollar's attorneys may have been stalling for time and awaiting the U.S. Supreme Court's decision in the Wal-Mart case), the Supreme Court reversed that Ninth Circuit's decision in Wal-Mart and threw out the Plaintiff's class action claims.

The Court in Wal-Mart held that the Plaintiffs could not meet the commonality requirement for class action certification where they were all from different districts and the decisions that were allegedly discriminatory were made by different district managers. In other words, as relevant to Family Dollar, if one manager decides to pay you less because you're a woman, and a different manager decides to pay somebody else less because she is a woman, your claim does not have enough in common with the other woman's claim, even though you are working for the same company and have the same claims, because there are different decision makers involved, so you cannot bring the claims together in the same law suit (or at least not as a class action).

Well, the trial court in the Family Dollar case cited the new Wal-Mart decision when it threw out the Plaintiffs' claims by granting Family Dollar's motion for judgment and denying the Plaintiffs' motion to amend their Complaint, thereby axing their entire case. This was despite the fact that the Wal-Mart decision essentially added new and additional requirements to what must be included in the Plaintiffs' original complaint, but the Plaintiffs were not allowed to correct their original Complaint to account for those new requirements. The OTHER Catch-22 of course, was the fact that the Plaintiffs in Family Dollar were alleging that it was the centralized corporate policies of Family Dollar that led to the pay discrimination (the same policies in every district), yet they were never given the chance to pursue that theory or those allegations. The ultimate Catch-22 with these cases (and with all the new and additional pleadings requirements being erected by the courts in recent years, the overall point of which, imho, is just to make it more difficult for individuals to sue big corporations), is that one cannot prove one's theories in the absence of discovery during litigation (the process by which the parties obtain information from the other side to prove their respective theories of the case), yet they are never given the chance to engage in any discovery which they would need to prove their case, because their claims are axed at the outset, based on the fact that they have not put enough established information (a.k.a PROOF that they don't yet have) IN THEIR COMPLAINTS! Argh.

So, on the basis of Wal-Mart, the trial court in Family Dollar finally axed the Plaintiffs' claims.

BUT THEN, in came the Fourth Circuit, which REVERSED the trial court's denial of the Plaintiffs' request to amend their Complaint. As the Fourth Circuit observed, even if lower level managers are making different subjective and discriminatory decisions, they are not the ones setting the policies for the entire corporation, so if the policies themselves are discriminatory, then that equates to commonality for class action purposes. And, as the Court also noted, the Plaintiffs were alleging that higher level managers were also making discriminatory decisions that affected multiple districts and plaintiffs. Again, commonality. The court used these and other facts to distinguish the Wal-Mart case from the Family Dollar case. Simply put, the Plaintiffs should at least get the CHANCE to make the allegations they need to make to satisfy the Wal-Mart class action requirements (which, imho, are now essentially new and additional requirements which are NOT set forth in the federal class action rule), because giving them that chance is "necessary to ensure meaningful review."

The Court also shot down Family Dollar's arguments that allowing the Plaintiffs to amend their complaint would be prejudicial to Family Dollar. The Court pointed out that Family Dollar cannot turn around and claim prejudice now when Family Dollar was the one prolonging the litigation all along. Bam. Eat it and like it, Fortune 500 friends!

So now the Plaintiffs can amend their complaint and revive the class action lawsuit. Thank you, Fourth Circuit! Here is a link the the Fourth Circuit's opinion:

Luanna Scott et al v. Family Dollar Stores, Inc. - Bloomberg Law

And for point-and-counterpoint purposes, here is a pro-corporate rant about how horrible this decision was:

Supreme Disregard in Scott v. Family Dollar - The Wall Street Journal

Now, we can probably expect Family Dollar to try to take it up with the Supreme Court. . . .

New Trial for Battered Woman in Florida Who Was Sentenced to 20 Years in Prison for Firing a Warning Shot

An appellate court in Florida has reversed the conviction of Marissa Alexander, An African-American woman who was sentenced to 20 years in prison for firing a warning shot into the air while being abused by her husband. Apparently there was a major altercation in the home about a week after the couple's child was born, during which Marissa had to lock herself in the bathroom to get away from her husband, who was threatening to kill her that day. He "broke through the door, grabbed her by the neck, and" threw her into the door. She ran into the garage to escape, but she could not get the garage door open. So she grabbed the gun and ran back in. As he threatened to kill her, she fired a warning shot into the air. No one was hurt by the shot.

Meanwhile, convicted rapists are getting 30-day sentences . . . . 15 months at best . . . . .

Marissa pleaded the Stand Your Ground defense, but the defense failed. Instead, the jury convicted her of aggravated assault with a deadly weapon and she was sentenced to 20 years because it is the mandatory minimum sentence for gun crimes. Now the appeals court has remanded the case for a new trial because the jury instructions on self defense were erroneous.

Interestingly, the prosecutor who prosecuted Marissa Alexander was the same prosecutor who prosecuted George Zimmerman. Only Zimmerman was acquitted for his role in the altercation which resulted in the actual death of Trayvon Martin.

Marissa Alexander Will Get a New Trial - MSNBC

Florida Woman Given 20 Years For Firing Warning Shot Gets New Trial - nbcnews.com

Sixth Circuit Court of Appeals Unanimously Votes Against Autocam Corp. in Obamacare Case

There is another "Obamacare"-and-women's-health-care case going on right now in the Sixth Circuit. In that case, like the Hobby Lobby and Hercules cases in the Tenth Circuit, Autocam Corporation has sued the federal government claiming that The Affordance Health Care Act's new mandate that employers must cover women's health care services as part of their employer-sponsored health insurance plans infringes upon the *corporation's* religious freedom under the Religious Freedom Restoration Act (RFRA).

Under the RFRA, *persons* are entitled to worship a religion freely without undue interference by the government. Autocam apparently believes certain reproductive health care services for women (birth control, family planning, pills) are A SIN and against its religion. But one threshold question in all of these 70 or so cases recently filed in federal courts around the country has been: How on Earth is a *corporation* considered a *person* that could actually hold religious beliefs? Well, recently, the 10th Circuit, in the Hobby Lobby and Hercules cases, has answered that question in the affirmative.

UNLIKE the 10th Circuit, however, the 6th Circuit last week UNANIMOUSLY answered that question in the negative. So in the 10th Circuit now, corporations are people for purposes of religious freedom, but in the 6th Circuit, they are NOT. How interesting that two different appellate courts could reach such a different result on the same question around the same time. Here is a copy of the 6th Circuit's opinion:

Autocam Corp. v. United States - 6th Circuit Court of Appeals

More Info on the issue: A Second Federal Appeals Court Rules Against For-Profit in Fight Over Contraception Coverage - RH Reality Check

The 3rd Circuit has also recently sided with the 6th Circuit in holding that corporations are not people and they must provide insurance plans with birth control, and so far the 10th Circuit is officially alone. This is very likely going to be a question for the United States Supreme Court.

Jury Verdict Upheld for Female Firefighter in Florida

A female firefighter in Florida has won her appeal.  She was at one point the only female firefighter in the New Smyrna Beach Fire Department, that is, until the Department fired her after she complained about sexual harassment. Seven months ago, she won her federal jury trial against the City of New Smyrna Beach, and the jury awarded her $444,000 for discrimination, sexual harassment, and retaliation. The City moved to invalidate the jury's verdict, but the trial judge upheld the verdict. The City has now appealed to the 11th Circuit Court of Appeals in Atlanta to overturn the judge's ruling. Meanwhile, the judge has ordered the City to reinstate the plaintiff to her former job.

Judge Denies New Smyrna's Appeal in Female Firefighter Sexual Harassment Case - Daytona Beach News-Journal

Here is a copy of last year's summary judgment ruling which provides some of the disgusting facts of the case:

SMITH v. CITY OF NEW SMYRNA BEACH - Leagle

To summarize, her supervisors told her the Department normally only hires men. They told her women should be "in the kitchen." They told her "women should not be in the fire service" and it was up to her "to prove otherwise." They covered her training manuals with cutouts from Cosmo Magazine. They called her "kid" and "girl." They questioned her about being a single mom and talked to her about her "mothering role." They told her they wanted her to get pregnant so she could be their secretary. They assigned her to babysit their kids and scrub the toilets and the urinals at the fire station. They told her if she ever brought tampons to work again she would be suspended. They disciplined her for using cuss words twice when all the male firefighters cussed on a regular basis because they told her "a lady should not talk like that." One firefighter told her she was hot and beautiful and that he wanted to bend her over. He sent her a picture of his penis. They told her it would make her "career very tough" if she filed a harassment complaint.

Yes, these things really do happen all the time, in the 21st Century!! Congratulations to this brave woman, her attorney, the jury, and the judge for a just result.

A Call for More Women Judges (in the Context of the Health Care Cases)

Here's an articulate plea out of Denver for more women judges. The piece draws some intriguing parallels between "Obamacare" and women's rights. Currently, about 30% of federal judges nationwide are women (thanks in part to Obama, who has appointed far more women judges to the federal bench than any other President in U.S. history, despite Congress's refusal to approve many of them), and in Colorado it's 27%. And in the U.S. Court of Appeals (10th Circuit, which includes Colorado), it's only 10%.

There are two cases currently pending, one in federal district court in Colorado, and the other in the 10th Circuit, which deal with "Obamacare's" requirement that businesses cover reproductive health care services for women as part of their health care plans. The intent of this requirement was to eliminate the gender discrimination inherent in excluding certain health services for women, as such exclusions have an obviously disparate impact on women. Two companies, Hobby Lobby and Hercules Industries, are challenging this requirement as unconstitutional because it goes against their religious beliefs (presumably the belief that reproductive health care is evil or a sin, presuming that a corporation is a "person" who can actually hold religious beliefs (?)) and they should therefore not be required to pay for this type of health care. Interesting issues.

According to this writer, if there were more women on the federal bench deciding these types of cases, maybe those judges would be more likely to rule in favor of women's rights because they understand the importance of these services. Not sure if I agree that a judge would be more likely to rule one way or the other on a constitutional issue just because she is a woman, but still, it's something to think about.

We Need More Female Judges - Denver Post

For the law geeks, here is the recent appellate opinion on the injunction issues in the Hobby Lobby case which concludes that for-profit corporations are indeed "persons" who can hold religious beliefs (pages 25-35 of the opinion):

Hobby Lobby v. United States - 10th Circuit Court of Appeals

California Finally Overturns 1872 Law Which Allowed for Rape While Impersonating the Victim's Significant Other

Good news out of California: It is now illegal to rape someone even if you are impersonating their boyfriend. I think I know what you're thinking. "What? Wasn't this already against the law?" Nope, not in California. Apparently there was still some 19th Century loophole lingering on the books that said it was illegal to rape someone if you are impersonating their husband during the rape, but if you are just impersonating their boyfriend, then it is okay. This actually led to the acquittal of a rapist who even admitted to raping the woman, but because he was impersonating her boyfriend, and because she was not married to the person the rapist was impersonating, he was innocent! Huh?? Well, in any case, it's all against the law now. Live and learn, California! Let's hope that guy does not do it again--or wait, let's hope he does, because this time he will actually be guilty. :)

California Finally Overturns Its 1872 Law Denying Justice For Unmarried Rape Victims - Think Progress