The SCOTUS contenders on employment law: Brett Kavanaugh

The list is now down to three: Judge Kavanaugh, Judge Barrett, and Judge Kethledge. Can't wait for Monday!

Our final contender for the Supreme Court position is Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit.

Judge Brett Kavanaugh

Judge Kavanaugh, 53, was White House Staff Secretary to President George W. Bush from 2003 to 2006, when President Bush nominated him for the D.C. Circuit judgeship. Judge Kavanaugh was born in Washington, D.C., grew up in Bethesda, Maryland, and went to all the right schools (Yale and Yale). Because he's been on the bench for a while, we actually have some opinions by him on labor and employment issues, and they are all good, so let's dive in.

As with Judges Thapar and Kethledge, I used no particular methodology in selecting the cases for my "Judge Kavanaugh" sampling. (In the case of Judge Barrett, I selected the only two labor and employment cases I was able to find.)

Case No. 1: Ayissi-Etoh v. Fannie Mae (2013). Among other things, the plaintiff in this case contended that his supervisor called him the "N" word on one occasion. The trial court had granted summary judgment to the employer on all claims, including a hostile work environment claim. The D.C. Circuit panel reversed, and Judge Kavanaugh wrote a concurrence emphasizing that even one use of the "N" word by a supervisor could be severe enough to create a valid claim for a racially hostile work environment.

Case No. 2: Johnson v. Interstate Management Co., LLC (2017). This plaintiff was apparently the hotel cook from Hell. Among other things, he served undercooked chicken to a banquet of 250 people. In addition to undercooking food and engaging in unsanitary practices, he also allegedly falsified his time records. He was finally terminated after he cooked and allowed to be served some breaded chicken that had plastic wrap under the breading. (The plastic wrap melted and apparently stuck to the chicken.)

The only mystery to me in reading this decision was why the hotel kept him as long as it did.

Anyway, the plaintiff claimed he was fired in retaliation for making an OSHA (safety) complaint about the hotel, and also for having filed three EEOC charges. Judge Kavanaugh (and his colleagues) affirmed summary judgment for the employer, finding (1) no private right of action for OSHA retaliation, and (2) with respect to the "EEO" retaliation, that the employer had ample legitimate, non-retaliatory reasons to fire him that were not a "pretext" for discrimination.

I'll say.

Case No. 3: Midwest Division-MMC, LLC v. NLRB (2017). A group of employees successfully claimed before the National Labor Relations Board that they should have been allowed to have union representatives present in their interviews with a nursing peer review committee. The interviews related to state licensing and were not compulsory. The D.C. Circuit panel, which included Judge Kavanaugh, refused to enforce the NLRB decision. Judge Kavanaugh wrote a separate concurrence to emphasize that there is no right to union representation in peer review interviews because the interviews are not investigatory or likely to result in discipline.

The majority on the panel did agree with the NLRB that the employer should have provided information to the union about the peer review process. Judge Kavanaugh dissented from this part of the decision, arguing that confidentiality was essential to the peer review process and that the union's need for the information was "minimal at best" because the interviews were unlikely to result in employee discipline.

Case No. 4: Local 58 of the International Brotherhood of Electrical Workers v. NLRB (2018). An IBEW Local in Detroit adopted a policy regarding members who wanted to either resign from the union or stop having union dues automatically deducted from their paychecks. Under the policy, members were required to come to the IBEW office in person with a photo ID and a written request to resign/stop checkoff. Even the NLRB found that this practice was coercive and illegal, which is saying something.

Judge Kavanaugh did not write the court's opinion, but he joined in enforcing the NLRB's decision and denying the union's request for review.

Chief Judge Merrick Garland, whom President Obama had nominated to the Supreme Court after Justice Antonin Scalia died, was also on the panel in the IBEW case. (Judge Garland's confirmation vote was blocked by Republicans during President Obama's term, and when President Trump took office, he nominated Neil Gorsuch instead.)

So, that's our slate! Who will be the nominee? Who will POTUS pick for SCOTUS? Don't go away -- we'll know on Monday!

Robin Shea has more than 20 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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