Appellate Mandate Rule Requires Strict Compliance

• Pages: 28-29
• Date: 01 April 2023
• Author: Jared H. Lorenz
• Subject Matter: Civil Law

cochair of the Trade Secrets Litigation

Subcommittee of the Section’s

Commercial & Business Litigation

Committee."

Agreed Transfer

Is Not an Adverse

Employment Action

By Katherine G . Vazquez, Litigation

News Contributing Editor

The transfer of an employee cannot be

an adverse employment action when

the employee voluntarily requests that

transfer as part of the settlement of

an Equal Employment Opportunity

Commission (EEOC) charge of dis-

crimination. When an employee

agrees to a transfer under such cir-

cumstances, he or she does not have

a prima facie case of discrimination or

retaliation under the Americans with

Disabilities Act (ADA). ABA Litigation

Section leaders observe, however, that

employees who are transferred as part

of a discrimination settlement are not

without options to ensure they get the

benef‌it of that deal.

In Laird v. Fairfax County, Virginia,

the plainti suered from multiple

sclerosis and requested a reason-

able accommodation under the ADA

from her employer, the Fairfax County

Department of Procurement & Material

Management. The county approved

the plainti’s request, and she began

unscheduled telework “whenever she

wanted to or needed to,” so long as

she informed her boss. The parties

also agreed to revisit the arrangement

at any time, and the plainti’s boss

eventually found the accommodation

untenable. The county modif‌ied the

plainti’s accommodation and allowed

her to telework only on two sched-

uled days per week. The county also

required her to come into the oce

for scheduled meetings.

Unsatisf‌ied with this new arrange-

ment, the plainti f‌iled a complaint

with the EEOC. After several months

of negotiations, the parties reached a

settlement whereby the county and

the plainti agreed that she would

receive a lateral transfer to the Fairfax

County Police Department, where she

would “maintain her pay grade, position

within the salary band, and opportunity

for future promotion.”

After a month on the job, the plain-

ti complained that her duties were not

the ones set forth in her job descrip-

tion. After discussions, the police

department created a new position and

job description, but the plainti refused

to accept it. She objected to her new

role with the police department, claim-

ing that her opportunity for future pro-

motion had been hurt by the transfer,

that her job was “thinkless,” and that

she found the work “boring.”

The plainti sued the county in fed-

eral court alleging unlawful discrimina-

tion and retaliation because she f‌iled a

complaint with the EEOC. The county

moved for summary judgment argu-

ing that the plainti could not present

a prima facie case because she had

not suered an adverse employment

action. The U.S. District Court for the

Eastern District of Virginia granted that

motion, and the plainti appealed.

The U.S. Court of Appeals for the

Fourth Circuit armed, holding that

“if an employee voluntarily requests a

transfer, and the employer agrees to it,

there is no actionable adverse action.”

The court reasoned that the county

went beyond what the ADA required

and that the plainti “cannot now claim

discrimination and retaliation based

on the County’s decision to make the

agreed-upon transfer.” Whether the

county upheld its end of the bargain or

breached the parties’ settlement was

irrelevant, the court explained, because

the plainti only brought claims under

the ADA and not for breach of contract.

Litigation Section leaders urge

employees to know exactly what they

are getting when agreeing to a rea-

sonable accommodation. “Employees

who negotiate and agree to a rea-

sonable accommodation should

seek to limit the employer’s ability

to modify the reasonable accom-

modation without f‌irst obtaining the

employee’s consent,”explains Alan

Lescht, Washington, DC, member of

the Section’s Employment & Labor

Relations Law Committee.

For their part, employers should

be fair and transparent when propos-

ing a lateral transfer as a reasonable

accommodation. “Although the court

found that an employee who volun-

tarily requests a transfer suers no

adverse action, it emphasized that a

request for transfer is not voluntary

if the employee is subjected to intol-

erable working conditions,” explains

Jerry M. Cutler, New York, NY, cochair

of the Section’s Employment& Labor

Relations Law Committee.

Appellate Mandate

Rule Requires Strict

Compliance

By Jared H. L orenz, Litigation Ne ws

Contributing Editor

District courts cannot disregard a

specif‌ic mandate on remand, regard-

less of whether the court believed the

appellate court erred or insuciently

explained its rationale. ABA Litigation

Section leaders say this decision high-

lights the important balance between

zealous advocacy and the nature of

judicial hierarchy.

In United States v. Dutch, the defen-

dant pleaded guilty to federal f‌irearms

crimes. At the defendant’s f‌irst sentenc-

ing hearing, the government argued

that the sentence should be enhanced

under the Armed Career Criminals Act

(ACCA) because of previous criminal

f‌irearms convictions. The district court

disagreed and concluded that the

ACCA should not govern because the

government had not met its burden of

proving that the defendant’s previous

crimes occurred on separate occasions.

On appeal, the U.S. Court of Appeals

for the Tenth Circuit agreed with the

federal government, holding that the

ACCA applied because the government

proved that the defendant’s crimes

occurred on separate occasions. The

Tenth Circuit reversed and remanded

for resentencing in accordance with the

ACCA. The defendant moved for an en

banc review, as well as relief before the

Supreme Court of the United States,

both of which were denied.

Despite the Tenth Circuit’s hold-

ing, the defendant again argued on

remand that the ACCA should not gov-

ern. The district court agreed with the

defendant, concluding that the argu-

ment against the ACCA enhancement

was not “fully-developed and not fully

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