This post is part of an ongoing series on the labor decisions and positions of some of the likely potential picks to replace Justice Scalia on the Supreme Court.

In the wake of Justice Antonin Scalia’s death, Judge Patricia Ann Millett of the United States Court of Appeals for the District of Columbia Circuit has appeared on numerous short lists to fill the vacancy on the Supreme Court.

Judge Millett was appointed to the D.C. Circuit in December 2013.  Her confirmation to the D.C. Circuit was the first pursuant to rules passed in November 2013 that require only a majority of the Senate to agree to proceed to final debate in order to avoid filibusters.  She was confirmed by a vote of 56 to 38.

Labor

Inova Health System: Affirming the NLRB

In Inova Health System v. NLRB (2015), the NLRB determined that an employer violated the National Labor Relations Act by discharging, disciplining, and failing to promote nurses who engaged in concerted activities.  The employer appealed the Board determination, but Judge Millett’s majority opinion denied the appeal.  Though Judge Millett noted that judicial review of Board decisions is “narrow and highly deferential,” her opinion engaged in a highly detailed analysis of facts of the case and the Board’s reasoning, ultimately concluding that “substantial evidence” supported each of the Board’s findings.

Dupuy: Reversing the NLRB, Protecting Employees

By contrast, in Dupuy v. NLRB (2015) Judge Millett criticized what she saw as the Board’s failure to protect worker interests.  The Board determined that a temporary employment agency committed an unfair labor practice in violation of the NLRA when it banned an employee from disclosing compensation terms and discharged him for violating that ban.  Initially, the Board issued an order requiring the agency to reinstate the employee and award him backpay, an order enforced by the Court of Appeals.  But then the Board entered into a settlement agreement with the agency that changed the terms of the order, including the conditions for the employee’s reinstatement and the method of calculating his backpay.

Though Judge Millett’s opinion stated the same deferential standard as the one used in Inova, she strongly critiqued the Board’s conduct: “[T]he Board’s decision falls short in two ways: It departs without any reasoned explanation from longstanding Board precedent constraining the Board’s ability to alter the terms of a judicially enforced Order, and it relies on a finding of substantial equivalence between Dupuy’s old job and his reinstatement offer that is not supported by substantial—or, frankly, by any—evidence.”  More simply stated, “[e]leven years is a long time to wait for backpay.”

Employment

Solomon: Employee Right to a Flexible Schedule

Solomon v. Vilsack (2014) involved Rehabilitation Act and Title VII claims brought by a former employee of the United States Department of Agriculture (USDA).  The former employee suffered from depression, and she attempted to use a “maxiflex” schedule with more flexible hours in order to accommodate her illness.  Eventually the employee was fired, and she brought various accommodation and retaliation claims.

The District Court granted summary judgment for the USDA on all claims, but Judge Millett reversed most of these grants (she affirmed two of three retaliation claims).  Judge Millett emphasized that “[n]othing in the Rehabilitation Act establishes, as a matter of law, that a maxiflex work schedule is unreasonable.”  Though the opinion left open the question of whether a maxiflex schedule would have been reasonable under these circumstances, it defended a significant policy goal of the Rehabilitation Act: to ensure reasonable accommodations, including scheduling accommodations, for federal employees.

Judge Millett seemed particularly concerned with the USDA’s unwillingness to support flexibility for federal employees, writing: “The Secretary [of the USDA]…need only look around the neighborhood to witness both the availability and viability of maxiflex work schedules specifically within the federal government.”

It is worth noting, however, the particular circumstances of the employee in Solomon: as Judge Millett explained, “[b]ecause of her efforts, Solomon never missed a single work deadline throughout the acute phase of her illness.  Nor were there any complaints about her work performance.”

Doak: Limits on Schedule Flexibility

Judge Millett denied an employee’s claims when the employee had a harder time keeping up with her work schedule.  In Doak v. Johnson (2015) an attorney who had worked for the United States Coast Guard (USCG) brought Rehabilitation Act claims, alleging disability discrimination and retaliation.  As in Solomon, the District Court granted summary judgment for the employer on all claims. But in Doak, the employee lost on appeal.

Judge Millett found no material dispute as to the employer having a legitimate non-retaliatory justification for its actions.  The employee’s depression, hypothyroidism, and various injuries sustained in a car accident caused her to miss a great deal of work.  The employee argued her attendance was improving in the months before her termination, “suggesting that the Coast Guard used her absences as a pretext for unlawful retaliation for her accommodation requests.”  But Judge Millett rejected this argument: “‘[i]mproving’ is not the same thing as ‘improved.’  Doak’s fleeting increase in attendance still fell short of what her job requires, and it made no meaningful impact on the overall percentage of scheduled work hours that she missed.”

Ward: Criticizing Burdens on Employees Seeking Accommodations

In Ward v. McDonald (2014), in what appears to be her only dissenting opinion in an employment law case, Judge Millett vigorously disagreed with the majority’s affirmance of summary judgment for an employer facing Rehabilitation Act claims.  The employee in Ward was an attorney advisor at the Board of Veterans Appeals (BVA) who developed lymphedema.  The employee sought an accommodation allowing her to work full-time from home, supporting her request with two letters from her doctors containing only what the majority described as “terse” descriptions of her condition.  When her supervisors asked for additional information to use in determining a reasonable accommodation, the employee resigned, later bringing claims against the VA for failure to accommodate her disability and constructive discharge.  The majority determined that the additional information sought by the employer was necessary to reasonably accommodate the employee, so the employee’s refusal to provide this information defeated her claims.

But Judge Millett disagreed, pointing to substantial evidence in the record to the contrary: “The Secretary admits that he did not need the demanded information to accommodate Ward; the letter sought nothing that was tied to the actual demands of her job; and the information demanded was irrelevant to ensuring that her requested flexiplace accommodation was practicable.  The factual record, in other words, pulls the legal rug out from under the majority’s feet.”

Judge Millett’s dissent took serious issue with an employer asking a sick employee to jump through unnecessary hoops for reasonable accommodations: “Ward cannot be saddled with legal responsibility for failing to respond to questions her supervisors had no business asking.  That is especially so because her increasing inability to properly treat her lymphedema in the office was literally endangering her life, making the delay caused by her supervisors’ unjustified factual detours acutely harmful.”

Other Employment Cases

In addition to the Rehabilitation Act cases, Judge Millett has written several other employment law opinions supporting employee rights and the federal government’s ability to protect those rights.  See Coleman v. District of Columbia (reversing summary judgment for employer in case brought by former fire captain alleging §1983 claims, First, Fourth, and Fifth Amendment claims, negligence claims, and violations of District of Columbia’s Whistleblower Act); Otis Elevator Co. v. Sec. of Labor (rejecting challenge to Occupational Safety and Health Review Commission’s determinations that safety standards applied to work that resulted in injuries); Huron v. Colbert (rejecting challenge to Office of Personnel Management’s approval of health benefits plans for federal employees that excluded coverage for speech-generating devices).