Amid a swarm of controversy created by Senate Republicans’ vow to stonewall a hearing or vote on any Supreme Court nominee during this election year, President Obama has nominated Merrick Garland, chief judge of the U.S. Court of Appeals for the D.C. Circuit, to replace the late Justice Antonin Scalia. While Chief Judge Garland has a long row to hoe before donning a robe as Justice Garland, it is worthwhile to consider what his confirmation to the Supreme Court might mean for employers. A review of Chief Judge Garland’s recent opinions in labor and employment cases reveals a mixed bag, with the judge ruling against the employer in most cases.

Eight labor and employment decisions issued by Chief Judge Garland in the past three years (including one per curiam opinion) are summarized below and offer interesting insight into the man who could be sitting on the highest court in the land as several watershed labor and employment matters make their way up the chain.

The first three cases presented here illustrate what is perhaps the most troubling aspect of Chief Judge Garland’s judicial philosophy for employers — his strong deference to agency determinations. This willingness to defer to administrative decisions has fueled his reputation as a union-friendly jurist. Indeed, in 18 of 22 appeals involving determinations of the National Labor Relations Board (NLRB or Board), he ruled in favor of the Board.

This philosophy of deference, coupled with the Supreme Court’s recent determination in Perez v. Mortgage Bankers Association that administrative agencies are permitted to change their interpretive rules and guidelines without public input, could lead to a Justice Garland approving an ever-greater expansion of agency rulemaking, despite Congressional and public objections. Such a combination of non-public rulemaking and judicial deference to agency action could be very harmful to businesses in the face of activist federal agencies.

Spurli​no Materials, LLC v. NLRB, 805 F.3d 1131 (D.C. Cir. 2015)

In this case, the court of appeals denied the petition of construction contractor Spurlino Materials, LLC for review of a determination by the NLRB that the company had engaged in an unfair labor practice in refusing to reinstate striking employees, and that the employees must be reinstated. At the heart of the case was a group of employees who went on strike to protest what they viewed to be the unlawful termination of (and failure to reinstate) a prominent union supporter. In conducting the strike, the employees honored a no-strike clause specific to one particular construction project.

The employer argued that it had no duty to reinstate the workers upon request, because the strike was an economic one (and permanent replacements had been hired) and alternatively because the strike was an unprotected partial strike. The opinion’s analysis of the economic versus unfair labor practice strike issue is relatively straightforward, crediting the Board’s findings of fact and concluding that there was no basis to disturb its conclusion that the strike was not economic. As to the idea that honoring the no-strike clause as to one location rendered the strike an unprotected partial strike, Chief Judge Garland noted that the Board reasonably took note of the “Catch-22” that the employer’s argument would create if accepted, writing as follows:

In Spurlino’s view, if the employees honored the no-strike clause and agreed to perform [work at the covered location], they would be engaging in a partial strike, thus forfeiting the NLRA’s protection. Yet, if they refused to perform [work at the covered location], they would be violating the no-strike clause, which would again strip the strike of its protected status. Hence, if Spurlino’s position were accepted, the employees could be fired for engaging in any kind of strike. (internal citations omitted)

Finally, the court of appeals declined to disturb the Board’s determination that Spurlino Materials and a separate company called Spurlino Materials of Indianapolis, LLC were a single employer of the employees at issue and therefore could be held jointly and severally liable. Central to this determination were the facts that both entities shared common management and control and had interrelated operations.

This case is an example of Chief Judge Garland’s general disinclination to upend the findings of administrative agencies.

Pacific Coast Supply, LLC v. NLRB, 801 F.3d 321 (D.C. Cir. 2015)

In this case, the court of appeals denied the employer’s petition for review of a determination by the NLRB that the employer unlawfully withdrew recognition from a union, and granted the Board’s cross-application for enforcement. The union in question represented a 15-employee bargaining unit, and while bargaining was underway for a successor collective bargaining agreement after expiration of the predecessor, eight of the 15 employees submitted handwritten statements to the effect that they no longer desired union representation. The employer relied upon these statements in withdrawing recognition.

The court concluded that it was not unreasonable for the Board to find that these statements were not sufficient to show that the union had in fact lost the support of a majority of union employees. First, all of the statements were written in English, but five of the eight employees later testified that they spoke or wrote only a little bit of English. Second, the statements only indicated that the employees no longer wanted to be union members — not that they no longer desired union representation.

Additionally, the court rejected the employer’s argument that “the NLRB wrongly barred it from bolstering its position with post-withdrawal evidence” — specifically, affidavits from some of the employees in question making clear that they did not desire union representation. The court determined that considering evidence that the employer did not have before it at the time of its decision to withdraw recognition would fly in the face of both Board precedent and its own precedent. Significantly, Chief Judge Garland noted that the court must “give deference to [an agency’s] interpretations of its own precedents” and must “defer to the requirements imposed by the Board if they are rational and consistent with the Act and if the Board’s explication is not inadequate, irrational or arbitrary.”

The Pacific Coast Supply opinion concludes with the observation that the more prudent option for the employer would have been to petition for a Representation Management election, which provides employers with a “safe harbor” from the inevitable unfair labor practice charge that will flow from unilateral withdrawal of recognition. “Instead, [the employer] proceeded, at its peril, to unilaterally withdraw recognition,” Chief Judge Garland wrote. “We conclude that the Board was not unreasonable in finding that, in doing so, [the employer] ran aground on the shoals of an unfair labor practice.”

Millard Refrigerated Servi​ces, Inc. v. Secretary of Labor, 718 F.3d 892 (D.C. Cir. 2014)

Here, the court of appeals denied an employer’s petition for review of a finding by the Occupational Safety and Health Administration that the employer had committed violations of emergency response, training, recordkeeping and other requirements in connection with a highly toxic chemical leak.

This case offers another example of Chief Judge Garland’s deference to administrative agencies, and he notes that the deferential principles of review “apply equally in cases where the Commission makes independent findings and where it declines review and thereby adopts the [Administrative Law Judge’s] findings as its own,” as was the case here.

Not all of Chief Judge Garland’s decisions come as bad news to employers, though. The following cases illustrate his willingness to hold in employers’ favor, particularly when the legal principles at issue are clear.

Minter v. District o​f Columbia, 809 F.3d 66 (D.C. Cir. 2015)

This case centered on allegations that the District of Columbia Office of the Chief Medical Examiner violated the Americans with Disabilities Act and the Rehabilitation Act when it refused to offer an employee with arthritis a reduced schedule, and terminated her employment when she failed to return to work. The district court granted summary judgment in favor of the employer — finding that “no reasonable jury could find either that Minter was a qualified individual for purposes of the ADA and the Rehabilitation Act, or that Minter was terminated because of her accommodation request — and the court of appeals affirmed.

Fatal to the plaintiff’s refusal-to-accommodate claim were the facts that she did not respond to her employer’s request for additional information about her alleged disability for several months, and by the time she did respond, a doctor had deemed her totally and indefinitely disabled. Given these facts, the court found that the employer did not refuse to offer the plaintiff an accommodation during a period when such accommodation might have been possible. Rather, the request was under consideration, with the plaintiff refusing to provide necessary information about her condition. And by the time she got on board and provided the information requested, she was “totally disabled” and therefore not a “qualified individual” under the ADA.

The termination claim failed, the court found, because the plaintiff effectively abandoned her job. Chief Judge Garland’s opinion notes: “[B]ecause an essential function of any government job is an ability to appear for work, the District’s explanation for terminating Minter was legitimate, and no reasonable jury could conclude otherwise.” The plaintiff had argued that the temporal proximity between her request for an accommodation and her termination created an issue of fact sufficient to defeat the employer’s motion for summary judgment. To this point, Chief Judge Garland noted the idea that a plaintiff must present evidence beyond mere proximity to counter the employer’s proffer of a legitimate, non-retaliatory reason for the action it issue. He emphasized that “[t]his is particularly true in a case like this one, in which the request for accommodation came during the same period in which the employee was entirely unable to perform the functions of her position even with an accommodation.” Thus, he concluded, the employer was entitled to summary judgment.

Metz v. BAE System​s Technology Solutions & Services Inc., 774 F.3d 18 (D.C. Cir. 2014)

Here, the court denied the plaintiff’s request to certify the main issue on appeal to the District of Columbia Court of Appeals for resolution. The issue in question was whether a cause of action for tortious interference with at-will employment exists under D.C. law.

The dispute arose when the plaintiff’s former employer threatened litigation against his new employer, contending that his new employment violated the terms of a non-competition agreement he had signed with the former employer. Fearing litigation, the plaintiff’s new employer terminated his at-will employment, and the plaintiff sued his former employer for tortious interference with that relationship. The plaintiff brought the case in federal court based on diversity jurisdiction, and the district court granted the defendant’s motion to dismiss on the ground that no such cause of action exists under D.C. law.

On appeal, the plaintiff did not ask the court to review the merits or reverse the dismissal. Rather, he only asked the court to certify to the D.C. Court of Appeals the question of whether tortious interference with at-will employment is a viable claim under D.C. law. The court declined to do so, because (1) the question was not “genuinely uncertain,” (2) the issue was “insufficiently significant” because it was neither of “extreme public importance” nor “a matter of public importance in which the District of Columbia has a substantial interest” and (3) the plaintiff chose to bring the case in federal court.

The opinion closes with Chief Judge Garland issuing a warning about forum shopping, noting that “if it were important to have the D.C. Court of Appeals clarify District of Columbia law, [plaintiff] could and should have brought his suit in the Superior Court of the District of Columbia. He did not do so, and we are not inclined to permit parties to so easily mix and match their favorite combinations of trial and appellate courts.”

Mpoy v. Rhee, 758 F.3d 285 (D.C. Cir. 2014)

This case centered on a school teacher’s allegation that his employment was terminated in derogation of his right to free speech under the First Amendment. The district court granted the employer’s motion for judgment on the pleadings, determining that the speech in question — an email sent to the school principal and chancellor — was not protected and that the individual defendants were entitled to qualified immunity regardless. The court of appeals affirmed that judgment.

The court of appeals agreed with the district court that in sending the email at issue, in which the plaintiff alleged various acts of misconduct by school personnel and inappropriate conditions at the school, the plaintiff spoke not as a public citizen but as a disgruntled employee. In so holding, the court declined the plaintiff’s invitation to parse one sentence out of a five-page email and hold that sentence out as protected speech.

Chief Judge Garland then methodically worked through the qualified immunity analysis, concluding that the public officials in questions would reasonably have believed that they were permitted to terminate the plaintiff’s employment based upon the email he sent. Therefore, under established precedent, Chief Judge Garland stated that district court was correct in concluding the officials were entitled to qualified immunity.

Finally, the following cases were wins for the employee.

Harris v. District of​ Columbia Water & Sewer Authority, 791 F.3d 65 (D.C. Cir. 2015)

In this opinion, the court of appeals reversed the district court’s dismissal of the plaintiff’s claim that his employment was terminated in retaliation for his opposition of racially discriminatory practices, in violation of both Title VII and Section 1981. The plaintiff was a 16-year employee of the Water and Sewer Authority (WASA) with a commendable record. After noticing that a significant number of black employees had been terminated and replaced with white employees, he wrote a letter to the mayor and to a committee within the District of Columbia City Council “complaining about problems at WASA, including racial discrimination.” Five months later, while on a medical leave of absence, the plaintiff was informed that his position had been eliminated. He was not given the opportunity to apply to vacant positions for which he might have qualified, and his job functions were carried out by others at WASA.

The district court dismissed the retaliation claims (and declined to exercise jurisdiction over a remaining claim under the D.C. Family and Medical Leave Act), finding that the complaint did not sufficiently allege a causal connection between his letters and his termination. Reversing this judgment, Chief Judge Garland reasoned that even if the five-month lag between the protected activity and the adverse employment action was insufficient to raise an inference of causation, the plaintiff had also alleged that he had been regularly commended for his work, he disputed WASA’s explanation that his position had been eliminated, and he alleged that he had not been given an opportunity to apply for other positions. “If true,” the opinion states, “these facts would show that Harris’ termination was not attributable to either of the two most common legitimate reasons for termination: performance below the employer’s legitimate expectations or the elimination of the plaintiff’s position altogether.”

Chief Judge Garland then took the analysis one step further, noting that if the plaintiff could prove the facts alleged, such a showing “may be enough to make out not only a prima facie case of retaliation, but also a case sufficient to survive summary judgment outright.” Sending a clear signal to the district court, the opinion notes that, if the plaintiff’s allegations were given credence, the employer’s proffered reason for the termination “sounds like [pretext] to us.”

Ayissi-Etoh v. Fa​nnie Mae, 712 F.3d 572 (D.C. Cir. 2013)

In this per curiam opinion, the court of appeals reversed the district court’s grant of summary judgment to the employer with respect to a former employee’s claims of race discrimination, hostile work environment and retaliation under Title VII and Section 1981. The plaintiff alleged that his supervisors made race-related comments (i.e., noting that he was being paid a lot as a “young black man” and directing a highly offensive racial epithet at him) and then fired him after he filed a complaint with the Equal Employment Opportunity Commission.

The court of appeals noted that the alleged comments by the plaintiff’s supervisor were enough, if assumed to be true, to constitute direct evidence of discrimination sufficient to support that claim. As to the hostile work environment claim, the court of appeals held that the plaintiff’s supervisor’s alleged use of a highly offensive racial epithet “might well have been sufficient to establish a hostile work environment.” Plaintiff’s additional allegations led the court to conclude that “a reasonable jury could find [the supervisors’] behavior sufficiently severe or pervasive as to create a hostile work environment.” Finally, the court held that the plaintiff’s allegation that he was given the choice to withdraw his EEOC charge or be fired was alleged sufficient direct evidence of retaliation to survive summary judgment.

Conclusion

These opinions reveal a thoughtful and measured judge with no glaring ideological allegiance to either employers or employees. He does, however, show deference to administrative agencies that could be troubling to employers, especially as the NLRB continues to expand its reach. Judge Garland, generally viewed to be a moderate on the bench, was confirmed to the U.S. Court of Appeals for the D.C. Circuit in 1997 with support from both sides of the aisle. Whether prior bipartisan support will ultimately help him in the face of now-staunch opposition from the right remains to be seen.