Week 48 (2017)
Week of November 27, 2017 through December 1, 2017
Frontier-Kemper Constructors v. DOWCP (Diaz 11/30/2017): The Fourth Circuit held that a coal mine construction company is liable and thus responsible for the payment of benefits to a coal miner under the Black Lung Benefits Act (“BLBA”), 30 U.S.C. § 901 et seq., when the company chooses to acquire the Partnership where the coal miner was previously employed after Congress expanded the BLBA to make the Partnership liable for black lung benefits, and when it chooses to hire the coal miner again. Thus, the court affirmed the Decision and Order of the U.S. Department of Labor Benefits Review Board holding Frontier-Kemper liable under the BLBA. Full Opinion
Gustavo Nardea v. Jefferson Sessions III (Diaz 11/29/2017): The Fourth Circuit held that waivers of the right to contest removal under the Visa Waiver Program are constitutional, and that where evidence establishes a visitor was properly admitted as a waiver tourist, the court may presume (absent clear evidence showing otherwise) that the government necessarily obtained the entrant’s waiver to challenge any subsequent removal order. Finally, the court held that a citizen of Argentina who was removed without the benefit of a hearing was properly found to be a visa waiver entrant because his passport contained a “Visa Waiver, Tourist” stamp in lieu of a visa and he completed the section of an I-94W Form used exclusively for visitors under the Program. The court thus denied Nardea’s petition for review of a February 26, 2016 Order of Removal issued by the Department of Homeland Security. Full Opinion
Westmoreland Coal Company v. Herskel Stallard (Wynn 11/29/2017): The Fourth Circuit held that substantial evidence, such as credited testimony by a retired coal miner about his smoking history and discounted expert testimony that directly contradicts the U.S. Department of Labor’s conclusions as to lung functionality, and the conclusion that an award of benefits accords with applicable law may support an award to a miner under the Black Lungs Benefits Act (“BLBA”), 30 U.S.C. § 901 et seq. The court thus denied Westmoreland’s petition for review of an order by the Department of Labor Benefits Review Board granting federal disability benefits to Stallard under the BLBA. Full Opinion
Stanley Penley v. McDowell County Board of Ed. (Thacker 11/28/2017): The Fourth Circuit held that a former teacher accused of making inappropriate comments to his students who does not put forward evidence beyond mere speculation in support of his claims that he was terminated in retaliation for political speech fails to make a prima facie showing of retaliation. Accordingly, the Fourth Circuit dismissed the case by affirming the district court’s grant of summary judgment to Appellees on all counts, including First Amendment Retaliation, Civil Conspiracy, North Carolina constitutional retaliation, tortious interference, and malicious prosecution. Full Opinion
Stanley Penley v. McDowell County Board of Ed., No. 16-2034
Decided: November 28, 2017
The Fourth Circuit held that a former teacher accused of making inappropriate comments to his students who does not put forward evidence beyond mere speculation in support of his claims that he was terminated in retaliation for political speech fails to make a prima facie showing of retaliation. Accordingly, the Fourth Circuit dismissed the case by affirming the district court’s grant of summary judgment to Appellees on all counts, including First Amendment Retaliation, Civil Conspiracy, North Carolina constitutional retaliation, tortious interference, and malicious prosecution.
Stanley Penley (“Appellant”) was a teacher at McDowell County High School (“MHS”) from 2006 to 2013. He also regularly worked as a media strategist on political campaigns. North Carolina House of Representatives Member Robert Gillespie (“Gillespie”) refused to enter Appellant’s classroom on a tour in 2012, explaining to the new superintendent that Appellant had worked against him in previous elections. Gillespie also reminded the principal of his contempt for Appellant. In April 2013, Appellant made a comment to his class about how often men think about sex; he stated that it occurs more often when sitting next to one’s girlfriend. Appellant later admitted he directed this comment at a couple who were seated next to each other at the time. He approached the girlfriend, who was visibly upset, in an attempt to prevent her from going to the principal. The girlfriend’s mother reported Appellant to school administrators. Appellant was then suspended, investigated, and recommended for dismissal. The investigation revealed other inappropriate conduct and conversations with students. After being dismissed, Appellant initiated this action against the school principal, the superintendent, the board of education, a board member, and Gillespie (“Appellees”), alleging the suspension, investigation, and recommendation of dismissal were done in retaliation for his political speech. The district court granted summary judgment to Appellees and dismissed the case. Appellant appealed.
First, the Fourth Circuit held that all Appellees were entitled to summary judgment on Appellant’s First Amendment retaliation claim because the Board was not subject to municipal liability and Appellant was unable to present a prima facie case against the remaining Appellees. The court recognized that there was no evidence the Board participated in or condoned Appellant’s suspension or investigation, or that it was aware of a potential constitutional violation. The Board was also never involved in the hearing procedure and was therefore not on notice of Appellant’s alleged constitutional violations. As to the remaining Appellees, Appellant failed to put forward evidence beyond mere speculation to provide a sufficient basis for a reasonable inference of causation. Appellees Neighbors and Gillespie did not take any action with regard to Appellant’s employment. Appellant admitted that he did not have any evidence Appellee Gouge took any action motivated by a desire to punish him for his political activities. Furthermore, Appellee Martin’s knowledge of Appellant’s political speech eight to nine months prior to his termination was too distant to raise an inference of causation. Finally, even assuming Appellant could prove a prima facie case of retaliation, the Fourth Circuit held that Appellees demonstrated by a preponderance of the evidence that the investigation, suspensions, and Notice would have been issued even in the absence of the protected conduct.
Second, the Fourth Circuit held that Appellant’s allegation of a conspiracy by Appellees was not supported by any evidence rising above mere speculation and showed only that Appellees knew each other. The court recognized that acquaintanceships alone are insufficient to prove conspiracy. Appellant admitted that he did not have any actual evidence that any of the Appellees were involved in a conspiracy, and thus failed to meet his burden to come forward with specific circumstantial evidence that each member of the alleged conspiracy shared the same conspiratorial objective.
Third, the Fourth Circuit disposed of Appellant’s retaliation claim under the North Carolina constitution for the same reasons it disposed of his First Amendment retaliation claim. Furthermore, Appellant did not even argue that he did not have any adequate state remedy, and a claim against North Carolina under the North Carolina constitution is only available in the absence of an adequate state remedy. Fourth, the court held that Appellant failed to put forward adequate evidence to demonstrate that Appellee Gillespie intentionally induced any other Appellee to breach Appellant’s employment contract with the Board. Finally, the court held that Appellant did not present sufficient evidence to show a lack of probable cause for his malicious prosecution claim against Appellee Martin. The court reasoned that Appellant failed to show that the grounds stated in the Notice, including the totality of all inappropriate comments and behavior by Appellant known to Appellee Martin at the time she initiated the proceedings, would not induce a reasonable person to commence a prosecution.
Accordingly, the Fourth Circuit affirmed the decision of the district court granting summary judgment to Appellees on all counts and dismissing the case.
Jennifer M. Greene