Harman v. Unisys Corporation, No. 09-1298 (4th Cir. Dec. 4, 2009); Gordon v. England, No. 08-5365 (6th Cir. Dec. 3, 2009)

By Paul Mollica

Two courts of appeal reverse (at least in part) district court decisions which dismissed claims prematurely on the pleadings: the Fourth Circuit on an Iqbal issue, and the Sixth Circuit on an equitable tolling issue based on incompetent lawyering in a federal-employee Title VII case. But the courts are so darned modest about it that both decisions go unpublished.

Harman v. Unisys Corporation, No. 09-1298 (4th Cir. Dec. 4, 2009): The district court dismissed Title VII, ADEA and § 1981 discrimination and retaliation claims against Unisys at the complaint stage, under the “plausibility” standard adopted by the Supreme Court in Bell Atlantic v. Twombly and Iqbal v. Ashcroft. On appeal, the panel affirms dismissal of the discrimination claims (on the ground that the employee alleged no cognizable adverse action), but decides that the retaliation claims deserved to go forward, based on the loosened standard of adverse action announced under Burlington N. & Sante Fe Ry. v. White, 548 U.S. 53 (2006):

“Harman’s complaint is cumbersome and voluminous and contains numerous irrelevant allegations. Moreover, Harman’s complaint could have been more succinct and more specific with regard to when some of the challenged actions took place, and which individuals she alleged were her comparators for purposes of her retaliation claims. We nonetheless hold that the district court should have allowed Harman an opportunity to refine her Title VII, ADEA and § 1981 retaliation claims by amending her complaint, rather than dismiss those claims with prejudice.”

Gordon v. England, No. 08-5365 (6th Cir. Dec. 3, 2009): Clients who are the unwitting victims of their lawyers’ belated filings are conventionally told that they have no remedy except for a malpractice lawsuit against their negligent counsel.  But in this case, based in part on an allegation that she was physically assaulted by co-workers (an act that was allegedly caught on film), the panel holds the employee’s lawyer was so poor that his late filing might furnish grounds for equitable tolling:

“Despite many attempts by Gordon to litigate these issues, no court or administrative body has
ever reached the merits of Gordon’s claims. In large part, this appears to be the result of wholly
incompetent legal representation. Since Gordon has proceeded pro se, service has been effectuated, deadlines have been met, and this suit was litigated to a final judgment. These seemingly mundane accomplishments achieved by a pro se litigant were apparently beyond the abilities of Mr. Bailey, Gordon’s retrained attorney. Gordon’s attorney was indisputably late with filings in multiple actions, failed to properly effectuate service, and abandoned Gordon’s suit for no apparent reason. To compound these errors, Mr. Bailey failed in an attorney’s most basic responsibility, that of communicating with his client and keeping her informed of the status of her case.”

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“Given Mr. Bailey’s alleged conduct in this case, it is hardly surprising that he has a lengthy
disciplinary history in Tennessee. Bailey lost his license to practice law in the late 1990s. He was publicly censured as recently as 2007 based on four separate complaints of failures similar to those in Gordon’s case, including failure to properly serve process, failure to appear at a scheduling conference, failure to notify a client for six months that the case had been dismissed, and failure to respond to written discovery.”

*   *   *   *

“If Gordon’s allegations are correct, her attorney’s conduct went well beyond ‘garden variety’
neglect. He completely failed Gordon every step of the way in his failure to file the proper
documents with the courts, in his failure to timely perform his duties, and in his failure to keep
Gordon abreast of the status of her case. Even worse, he aborted an EEO investigation by falsely stating that a Title VII case was proceeding. Then, when he again appeared to be missing deadlines, he filed a voluntary non-suit, effectively aborting Gordon’s claim. He took many of these actions without notifying Gordon. On the limited record before this Court, we do not know exactly what the attorney was telling Gordon, but she states that she repeatedly tried to contact him, and she has diligently pursued this case proceeding pro se.”

This case may not have much reach beyond the egregious facts, but is worth noting the next time such a client walks into your office.