1st Circuit: Harassment Case Against the Army Sent Back for Trial 

Drawing the line between a rude supervisor and one who is a harasser is not always easy. In Rosario v. Dep’t of the Army, the district court found that the supervisor was simply “a rude man that lacked courtesy and professionalism” and granted summary judgment to the defendant. 

But the 1st Circuit reversed on June 2, sending the case back for trial over whether the behavior was severe and pervasive and motivated by sex, as required for a sexual harassment claim.

The plaintiff, a civilian medical records technician, complained that her supervisor, Ivan Arroyo, constantly complained about the way she dressed, watched the clock when she conversed with patients and told doctors his “personal opinion about [her] person.” 

The 1st Circuit concluded that although Arroyo did not touch Rosario or express any sexual interest, there was a triable issue of fact as to whether the abuse was motivated by sex. It also said that although Arroyo apparently abused male as well as female employees, “a reasonable jury [could] conclude that [the plaintiff] was exposed to harassment that was different in both kind and degree from that imposed on male employees.”

2nd Circuit: Failure to Probe Bias Complaint is Not Retaliation

An employer’s failure to investigate a discrimination complaint does not constitute a retaliatory adverse employment action, the 2nd Circuit ruled May 14.  

The plaintiff, Cynthia Fincher, had received several critical performance appraisals. She complained to the senior HR director that “black people were set up to fail” because they did not have the same training opportunities as white people. She maintained that when she asked if the director would respond to her complaint, he said he would not. She then resigned, saying her resignation was due to racial discrimination.

In Fincher v. Depository Trust and Clearing Corp., the court rejected her retaliation claim, saying that an “employee whose complaint is not investigated cannot be said to have thereby suffered a punishment” for complaining, because the employee is no worse off than she would have been had she not complained or if the employer had investigated the complaint and denied it.

The court also rejected Fincher’s claim that the failure to investigate created a hostile work environment and that, as a result, she felt compelled to resign.

3rd Circuit: Non-Compete May be Void After Employee is Fired 

If an employee is fired, can his former employer still enforce his non-compete agreement?

That was the question in PharMethod, Inc. v. Caserta, and the district court’s answer was yes. It granted a preliminary injunction barring Michael Caserta from competing against PharMethod, which had fired him from his position as a vice president. 

Caserta’s employment agreement prohibited him from competing against the company or soliciting its customers for one year after his employment ended. PharMethod discovered three months after it fired Caserta that he was employed by another company that marketed services similar to PharMethod’s to a company that Caserta had solicited in his previous position.

But on June 2, the 3rd Circuit remanded the case, saying the district court had failed to set forth sufficient findings of fact or conclusions of law to support the granting of a preliminary injunction. The court called in question whether it is appropriate in Pennsylvania to enforce a noncompetition provision when the employee had been terminated, citing a 1995 Pennsylvania Superior Court decision in Insulation Corp. of America v. Brobston.

In Brobston, the court said, “It is unreasonable as a matter of law to permit [an] employer to retain unfettered control over that which it has effectively discarded as worthless to its legitimate business interests.”

Federal Circuit: Parents Failed to Prove Vaccine Link to Autism

Parents of a child with autism, which the parents claimed was caused by the measles-mumps-rubella (MMR) vaccine, are not eligible for compensation under the National Childhood Vaccine Injury Act, the Federal Circuit held on May 13.  

In Hazelhurst v. Sec’y of Health and Human Servs., the appeals court upheld a ruling by a special master who found the parents had failed to establish causation. According to the parents, the special master erred by discounting their expert evidence showing a link between MMR and autism, while allowing the government’s expert evidence to the contrary.

But the court said the parents’ evidence was unreliable. It noted that the master gave them more than a year to obtain additional evidence or to counter the government’s expert, but they failed to do so.