Hunton Employment & Labor Perspectives

The Supreme Court recently announced the cases for which it has granted certiorari for the 2012-2013 term.  Among these, and now slated to be adjudicated in the nation’s highest court next term, are the appeals of three cases that will surely impact employment litigation.  In these cases, the Court will discuss (1) what the evidentiary standard is in federal courts, post-Dukes,  for class certification, (2) whether a case becomes moot, and thus beyond the judicial power of Article III, when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff's claims, and (3) what constitutes a “supervisor” for a vicarious liability claim under Title VII.

In Comcast v. Behrend, 655 F.3d 182 (3rd Cir. 2011), cert. granted, 80 U.S.L.W. 3442 (U.S. Jun. 25, 2012) (No. 11-864), the Court will decide “whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.”  The case centers around claims that Comcast engaged in anti-competitive and monopolistic activities in the Philadelphia area.  The issue - disagreement over what evidence needs to be shown for class certification - comes on the heels of the recently decided Dukes case, which focused on the evidentiary requirements of Rule 23 of the Federal Rules of Civil Procedure.  Comcast, relying heavily on the Dukes decision, alleges that the Third Circuit Court of Appeals ignored Dukes and instead “repeatedly invoked the disavowed aspect of [another, non-controlling case] in declining to consider several ‘merits arguments’ directly relevant to the certification analysis.”  Petition for a Writ of Certiorari at i, Comcast, 655 F.3d 182 (No. 11-864).  The Court’s decision is expected to clear up at least one lingering question that has arisen in the wake of Dukes, and provide much needed guidance on the evidentiary requirements for class certification in federal courts. 

Genesis HealthCare v. Symczyk,  656 F.3d 189 (3rd Cir. 2011), cert. granted, 80 U.S.L.W. 3512 (U.S. June 25, 2012) (No. 11-1059), involves an FLSA appeal by Genesis HealthCare Corp.  Specifically, the company seeks to overturn the Third Circuit’s decision to reinstate a collective action under the Fair Labor Standards Act (FLSA) against Genesis after Symczyk, the sole plaintiff in the putative class action, turned down Genesis’s offer of full relief.  Genesis claims that the plaintiff’s rejection of its offer stripped the named plaintiff of standing to prosecute her claim because she had “nothing more to gain from its continuing pursuit.”  Petition for a Writ of Certiorari at 9, Genesis HealthCare, 656 F.3d 189 (No. 11-1059).  Because there were no other named plaintiffs, and the class had not yet been identified or conditionally certified, Genesis claims that the case became moot.  The federal district court agreed with Genesis but the Third Circuit did not and reversed the lower court, allowing the case to move forward.  The Supreme Court will thus decide whether Article III of the U.S. Constitution, which has historically been read to allow courts to hear only live claims, prevents federal courts from hearing this case. 

Finally, Vance v. Ball State Univ., 646 F.3d 461 (7th Cir. 2011), cert. granted, 80 U.S.L.W. 3301 (U.S. Jun. 25, 2012) (No. 11-556), is a case that turns on what qualifies a person as a “supervisor” for purposes of vicarious liability claims under Title VII of the Civil Rights Act of 1964.  The plaintiff, a Ball State University employee, brought claims against the school under a theory of vicarious employer liability.  She claims that Ball State should be found liable because employees, who were allegedly her supervisors, intimidated and threatened her because of her race.  The Seventh Circuit held that one of the purported supervisors was not in fact a supervisor because Vance did not show “a factual dispute regarding [the purported supervisor’s] status” as “someone with [the] power to directly affect the terms and conditions of [her] employment.”  There is a current split in the circuits as to what constitutes supervisory capacity.  The Second, Fourth, Ninth and Tenth Circuits have held that it hinges on whether a person has authority to oversee and direct another person’s daily work activities.  As it did in this case, the Seventh Circuit has interpreted the scope of supervisory capacity much more narrowly.  In its view, a supervisor is a person with the power to directly affect the terms and conditions of a person’s employment, by exercising authority such as hiring, firing, promoting and other similar actions.  Whichever way the split is resolved, the consequences of this decision will be notable, as the holding will affect all employers nationwide who are subject to Title VII. 

Given the tremendous number of class actions filed in or removed to federal courts each year, the decisions in Comcast and Genesis HealthCare will have far-reaching implications.  As for Vance, the court’s decision will be equally important as it will resolve a circuit split and clarify an unsettled area of federal law.