Third Circuit: Craig Geness v. Jason Cox

An argument for equitable tolling must be raised in the opening appellate brief; otherwise, it's waived.

When inquiring as to whether a nolle prosequi was a favorable determination, a court must look beyond the four corners of the order.

Given an affidavit to the contrary and absent any deposition testimony, speculation that exculpatory evidence was known at the time was insufficient to present a genuine issue of material fact.

Claim of discrimination under federal law is a new and separate claim not barred by Rooker-Feldman after earlier state court adjudication relating to the events.

Motion to amend at summary judgment stage within a year of filing is presumptively timely.

http://www2.ca3.uscourts.gov/opinarch/172073p.pdf

First Circuit: Richard v. Regional School Unit 57

Establishment that the employer's nondiscriminatory justification was in fact pretextual does not establish causation, which must be proved separately.

Sufficient evidence for court's inferences.

Dissent:  From totality of record, retaliation was plain.

http://media.ca1.uscourts.gov/pdf.opinions/17-2200P-01A.pdf

Sixth Circuit: Jena McClellan v. Midwest Machining, Inc.

Where a plaintiff alleging discrimination attempts to return the contractual consideration for an earlier waiver of the claim within a reasonable period of learning of their rights under the discrimination statute, the common-law tender-back rule is satisfied. 

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0171p-06.pdf

Third Circuit: Traci Berardelli v. Allied Services Institute

Where the standards of liability of two statutes are substantively identical, administrative regulations enacted for one are due deference in interpreting the other.

Requested accommodation was reasonable as a matter of law -- jury instruction giving plaintiffs the burden to establish reasonability was error.

http://www2.ca3.uscourts.gov/opinarch/171469p.pdf

Eighth Circuit: Charlene Eggers v. Wells Fargo Bank, N.A.

Statistical evidence of disparate impact is required to state a claim that an employer's policy had a disparate impact on older workers so long as the policy is not a sweeping disqualification.

http://media.ca8.uscourts.gov/opndir/18/08/164376P.pdf

First Circuit: Carlson v. University of New England

Where an employer claims that an allegedly retaliatory transfer was voluntary, misrepresentations made by the employer to the employee must have a non-retaliatory justification in order to prevail at summary judgment.

In order to present an issue for trial, a claim that an annual raise was artificially low must be supported by a benchmark of prior years salary decisions.

http://media.ca1.uscourts.gov/pdf.opinions/17-1792P-01A.pdf

Sixth Circuit: EEOC v. Dolgencorp, LLC

Plaintiff gains the benefit of a longer statute of limitations on the federal claim by filing a state claim alleging discrimination, but not necessarily discrimination under the same theory as the federal claim.

Denial of request for a reasonable accommodation sufficed for discrimination -- plaintiff had no duty to request alternate accommodations.

Award of fees correct.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0163p-06.pdf

Sixth Circuit: Heidi Hostettler v. College of Wooster

There is an issue for trial when a plaintiff claiming disability or gender discrimination claims that she can perform all required work within a shorter amount of time; absent a showing to the contrary, the task is not necessarily defined by the number of hours required.

Employer can be estopped from claiming that the amount of leave taken exceeds that protected by the Act when the employee relies to her detriment on an assertion to the contrary, presenting an issue for trial.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0140p-06.pdf

First Circuit: Tang v. Citizens Bank

Counsel's response of "okay, fair enough" after overrule of objection withdrew the objection, and there was sufficient evidence to establish that the jury might reasonably have rejected the "quid pro quo" theory of harassment.

http://media.ca1.uscourts.gov/pdf.opinions/17-1365U-01A.pdf

Fifth Circuit: Arthur Mitchell v. City of Naples, et al

To present a genuine issue of material fact for trial as to the qualified immunity of the defendants in a wage discrimination claim, the plaintiff must present valid comparators with substantially similar positions.

http://www.ca5.uscourts.gov/opinions/pub/17/17-40737-CV0.pdf

Fourth Circuit: Felicia Strothers v. City of Laurel, Maryland

Executive's statement that supervisor wanted to hire someone of a different race, combined with disparate treatment, suffices to establish a genuine issue of material fact as to whether the employee's subsequent complaint was motivated by perceived racial discrimination and therefore protected activity.

http://www.ca4.uscourts.gov/opinions/171237.P.pdf

Eighth Circuit: NAACP v. Ferguson-Florissan

No per se clear error in using decennial census numbers as opposed to more recent ones.

A racial categorization does not lose minority status under the act upon attaining a bare majority in the district; the intensely local inquiry must take into account past discrimination and disenfranchisement.

Narrowness of win does not disqualify the win as proof against bloc voting.

Racially proportional representation is not per se proof that there is no actionable discrimination under the Act.

http://media.ca8.uscourts.gov/opndir/18/07/164511P.pdf

Seventh Circuit: Anthony Robinson v. Alfred Perales

As plaintiff did not present claim that deft and corporate deft were linked and declined to assert strict liability of one for the other during deliberations, no error in jury finding liability for one and not the other.

Explicit provision for nominal damages did not impermissibly suggest that non-monetary damages were appropriate.

Racial epithet and disparate treatment suffices to present an issue for trial on hostile work environment.

Statement of opposing party wasn't barred as hearsay.

Triable question of retaliation given facts.

Concerted attempts to end the plaintiff's career were sufficient for the verdict.

Court did not abuse its discretion in comparing the discussion of amounts of award in plaintiff's closing with actual award in declining to award fees.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-02/C:16-3390:J:Rovner:aut:T:fnOp:N:2180150:S:0

Fourth Circuit: US v. Edward Kehoe

One anonymous tip and one named tip sufficed for the search of the deft, given that the location was known to be the type of bar where people might drink with concealed weapons.

Court's instruction to counsel to consider why a caucasian person might have brought a gun to a predominantly african-american bar was egregious, but it didn't taint the proceeding, as the tips could still be weighed, and argument wasn't impeded.

http://www.ca4.uscourts.gov/opinions/174536.P.pdf

Seventh Circuit: Anthony Oliver v. Joint Logistics Managers, Inc

In a S1981 employment discrimination claim, A CBA provision allowing the employer to consider many factors in selecting employees for layoffs does not establish that the employer's use of seniority needs to be defended as nondiscriminatory.  (The burden doesn't shift.)

Allegation of discriminatory refusal to rehire is sufficiently rebutted by employer's contention that candidate's skills were insufficient.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-19/C:17-1633:J:Kanne:aut:T:fnOp:N:2172953:S:0

Third Circuit: Joel Doe v. Boyertown Area School District

Use of school privacy facilities by transgender students doesn't present a Title IX claim for non-transgender students in the room, as the policy is of equal applicability to both sexes. 

Insufficient injury for state tort claim.

Denial of preliminary injunction was appropriate, given mitigation in place during the litigation.

http://www2.ca3.uscourts.gov/opinarch/173113p.pdf

First Circuit: Doherty v. Merck & Co., Inc.

State law defining a live, healthy birth as something without remedy at law does not offend state constitutional guarantees of open courts and jury trials.

First Amendment right to petition incorporates right to the courts, but states can define the boundaries of a claim.

Statute survives rational basis review under the federal right to privacy, as legislature had an interest in medical malpractice reform.

Seventh Amendment not incorporated against the states.

Gender discrimination claim insufficiently developed.

http://media.ca1.uscourts.gov/pdf.opinions/17-1997P-01A.pdf

First Circuit: Dimanche v. MBTA

Sufficient evidence for verdict and damages.

While it was error for the court to limit deft's case to the proffer made in the motion to lift the default judgment, it was insufficiently plain error to reverse.

Addition of a Hostile Work Environment claim on the last day of the trial did not sufficiently prejudice the deft, given lack of objection or proffer at trial.

Circuit precedent holding that S1981 claims do not lie against state actors merely allows dismissal of those claims; it doesn't deprive the courts of subject matter jurisdiction, and since the objection wasn't raised at trial, a general verdict for plaintiff that includes pendent state law claims can stand. 

http://media.ca1.uscourts.gov/pdf.opinions/17-1169P-01A.pdf

Eighth Circuit: Mary Brazil v. Arkansas Dept of Human Service

In a suit alleging discrimination in employment practices, a material change in the plaintiff's working situation moots a claim of retaliation that seeks injunctive relief where there is only a speculative possibility that the employee might be transferred back to her old position.

http://media.ca8.uscourts.gov/opndir/18/06/172229P.pdf

Ninth Circuit: Patricia Campbell v. EDU-HI

Employer's loss of a performance report is not, by itself, an adverse employment action. 

Investigation of employee that did not affect her working conditions was not an adverse employment action; the suggestion that others were placed on paid leave while under investigation did not make the continued conditions of employment an adverse action.

Denial of transfer not adverse, since application was untimely.

Music and dance teacher did not establish that classes other than remedial math were available to teach; the assignment therefore was not an adverse one.

Lack of comparators for most claims.

Claim of hostile work environment from student animus is defeated by district's incremental and timely response.

Employer's speech in workplace reasonable.

As no adverse action, no retaliation; actions had sufficient neutral justification.

Standards for Title VII claim identical to Title IX claim.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/11/15-15939.pdf