Human resources & employment law cumulative case briefs
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| The facts are important in this case, so you should print it and study it for full understanding of how the court decided the matter. Briefly, however, the employee failed twice to provide details of the medical certification so that the employer could adequately evaluate the validity of the FMLA claim.
In order to succeed, the employee had to prove the employer willfully violated the Act, and because the FMLA does not define willful behavior, the Tenth Circuit Court of Appeals adopted the definition for willfulness used by courts in Fair Labor Standards Act (FLSA) cases. [Note: Fortunately, federal courts frequently strive for continuity and uniformity in discrimination cases and our state courts tend to do the same, which make interpretation easier in human resources and employment law.]. The FLSA standard is: "a plaintiff must show that 'the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.'" Finding that the evidence showed that the employer did not willfully violate the FMLA, the employee's claim was appropriately denied. ERISA: benefits, human resources benefits misstatement Illustrative, not controlling law. An HR employee misstated to an employee a larger pension benefit than the actual entitlement. That was not a breach of a fiduciary duty because the HR employee was not acting in the capacity of a plan fiduciary. "Nothing in ERISA secures him a windfall when a ministerial employee makes a mistake in an estimate, a mistake of which the beneficiary is or should be aware of because of the company's clear and accurate ERISA disclosures." An estimate is just that - an estimate. Livick v. The Gillette Co., No. 07-2108 (1st Cir., 4/17/08); 2008 U.S. App. LEXIS 8261; Internet: http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=07-2108.01A [enhanced lexis.com version]. FMLA: discrimination, termination motive, unfavorable comments Illustrative, not controlling law. A school bookkeeper was fired for missing too much work, unfortunately based on: - caring for terminally ill parents and - the effects of deaths of five other family members or close friends within the year. She missed 72 of 242 work days. Stating that it determined she missed too much work to meet the essential functions of her position, the school board terminated her employment, and later they stated it was not her absences, but rather because her performance was unsatisfactory [Note: Changing reasons is often fatal]. Evidence showed a discriminatory motive because the board was "fully cognizant of their obligations . . . under the FMLA", built a case to fire her on grounds of incompetence, and stated at a board meeting that FMLA requirements were "just ludicrous" and "a fiasco" [Note: Oh, oops! Also, perhaps the district and/or board ought to have realized this employee needed FMLA leave.]. Lewis v. School Dist. #70, No. 06-4435 (7th Cir., 4/17/08); 2008 U.S. App. LEXIS 8248; Internet More Law article: http://www.morelaw.com/verdicts/case.asp?n=06-4435&s=IL%20%20%20%20%20%20%20%20&d=36049 [enhanced lexis.com version]. Title VII: gender, age, retaliation, comment, "Not young and hip enough"; FMLA, anxiety
- A biased comment isn't direct evidence of discrimination unless it can be attributed to a decisionmaker. - A discrimination complaint must allege unlawful discrimination if it is to be considered protected activity under a claim of retaliation. - Petty slights and trivial occurrences of personality conflicts won't support discrimination and retaliation claims. Read the details of this case because it is complex.
1) she was in a protected group, 2) her work performance was satisfactory, 3) an adverse employment action was taken against her, and 4) the adverse action was taken under circumstances from which discrimination could be inferred. Her employer conceded she had established all elements except the third one. As to being denied the ULP position, the Tenth Circuit Court of Appeals noted that Title VII anti-discrimination provisions are limited to "adverse actions that affect employment or alter conditions of the workplace." Steele's affidavit alleging that the ULP position would have afforded her an opportunity to earn increased commissions. Unfortunately for her, she conceded in a deposition taken earlier that she had not discussed salary or commission terms for that position and was reluctant to take the position because it was a "tough sale". Because of that contradictory testimony, the appellate court disregarded it, and there was no evidence otherwise to support a discrimination claim. Steele's contention that the comment being neither young nor hip was rejected because the person who allegedly made it was not identified and was not shown to have been made by a KSE employee. In fact, KSE employees had advocated on her behalf for the ULP position. Thus, her age and sex discrimination claims were dismissed. Retaliation: This claim was also rejected because events were minimal and other employees similarly situated had been treated the same. Personality conflict and petty slights are not actionable, and retaliation claims must be based on actions that "must be harmful to the point that they would dissuade a reasonable worker from making or supporting a charge of discrimination." Public Sector: constitutional property right claims, blacklisting Controlling law, but it is specific to Colorado statutes. Teigen v. Renfrow, 511 F.3d 1072 (12/27/07) [enhanced lexis.com version]. Arbitration: disability benefits, subsequent separate plan Illustrative, not controlling law. For some 40 years benefits had been part of union bargaining and arbitration. However, the disability plan in question was separate from and independent of the bargaining agreement governed an independent administrative committee vested with "sole discretion" to interpret the plan, claims procedures and appeals. Steelworkers v. Rohm and Haas Co., No. 06-4346 (3rd Cir., 4/14/08); 2008 U.S. App. LEXIS 8361; Internet: http://www.ca3.uscourts.gov/opinarch/064346p.pdf [enhanced lexis.com version]. Retaliation: litigation, decisionmaker, knowledge, inference Illustrative, not controlling law. Knowledge by the interviewer that the applicant had filed a state claim for age discrimination was sufficient evidence of retaliation as the reason for not hiring him. Knowledge need not be of the exact nature of the state claim. Cline v. BWXT Y-12, LLC, No. 07-5639 (6th Cir., 4/1/08); 2008 U.S. App. LEXIS 6829; 2008 FED App. 0133P (6th Cir.); Internet article with text of decision: http://www.morelaw.com/verdicts/case.asp?n=07-5639&s=TN%20%20%20%20%20%20%20%20&d=35921 [enhanced lexis.com version]. Whistleblower: cheating, public policy, retaliation, constructive discharge, adverse employment action; severance plan, triable ERISA claim; emotional distress claim denied Illustrative, not controlling law. An employee in a high level of a real estate company learned that his supervisor had cheated on a computer online test by having his secretary take the test instead of him. After notifying the company's general counsel of this dishonesty, the employee's supervisor told him he could no longer work for him and then attempted to force the employee out of the company. Cheating under those circumstances is a violation of public policy and the reporting employee is protected from retaliation and reprisals. Sutton v. Brandywine Realty Trust, 2008 U.S. Dist. LEXIS 28281 (NDCal, 4/l 4/08); Internet Pacer docket access: http://dockets.justia.com/docket/court-candce/case_no-3:2007cv01109/case_id-189512 [enhanced lexis.com version]. Title VII: race, hostile work environment, failure to take prompt remedial action Controlling law. Complaints of, and actual evidence of, pervasive and prolonged racial harassment were not promptly and effectively dealt with. Tademy v. Union Pac. Corp., No. 06-4073 (10th Cir., 4/1/08); 2008 U.S. App. LEXIS 6916 [enhanced lexis.com version]. Ranee Tademy, an African-American switchman, was subjected to a prolonged and pervasively racially hostile work environment that began in 1995 including, among other things: - racist graffiti on his locker and on restroom walls and no action being taken after complaining about it other than removing it, - racist cartoons posted on company billboards and no action being taken after complaining about it other than removing it, - overhearing another employee refer to an African-American manager as "F***ing Kunta Kinte", - being called "boy" in the presence of at least two other employees, - finding a life-size noose "prominently suspended from a large industrial clock" in 2003 without any investigation or any other action being taken after he reported it. The appellate court said he did not have to be subjected daily to this offensive behavior in order to be able to present his case to a jury. [Note: Check this similar case: Bailey v. USF Holland, Inc., No. 07-5304 (6th Cir., 5/16/08); 2008 U.S. App. LEXIS 10518; 2008 FED App. 0184P; Internet: http://www.ca6.uscourts.gov/opinions.pdf/08a0184p-06.pdf.] [enhanced lexis.com version] Title VII, ADA: gender, sex, pregnancy, high risk, complications, unpaid leave, ADA, temporary disability major life activity, broad class of jobs, working, discrimination, email comment, direct evidence Illustrative case, but not controlling law. Employers need to choose their words carefully. The focus needs to be on essential functions of the position and standards of performance, not the employee's actual or perceived condition. The employee's pregnancy complications limited her to working from home, but the essential functions of her commercial account representative position required travel and direct personal contact with customers. In this case the employer sent an email to the employee with one correct phrase and with one troublesome phrase concerning her termination: - "because of your inability to work", and then unfortunately added - "due to complications from" . . . pregnancy". Thus, her discrimination claim was allowed to be considered by a jury to determine if the second phrase was direct evidence of gender and pregnancy discrimination. Her ADA claims were dismissed on summary judgment because (1) she was not restricted from a broad range of jobs, and (2) the two month period of temporary restriction would not qualify under the ADA requirement of a long term or permanent limitation. Kucharski v. Cort Furniture Rental, No. 3:2006cv00358, Connecticut District Court, New Haven Office, Civil Rights - Employment Cause: 42:2000 Job Discrimination (Sex), filed March 9, 2006. FMLA: employer, checking validity of physicians' letters, employee's opportunity to rectify, termination justified, daughter, granddaughter This Sixth circuit case is not controlling law because our jurisdiction is the tenth Circuit. However, it provides guidance (1) when checking the validity of health care provider letters and (2) when checking claims based on problems of family members. For a number of reasons the employee did not qualify for FMLA leave, her employer proceeded to promptly and properly investigate her suspicious claims, and her termination did not violate any of her FMLA rights. Read this opinion for details, but, as always, do not proceed without expert legal advice. Practical note: When dealing with a problem employee claiming personal and/or family problems, reviewing the FMLA early on with the employee will advise him or her that the act covers only: - the employee's own serious health condition that would prevent him or her from working, - the birth of a son or daughter, - the adoption or foster care of a son or daughter, and/or - caring for the employee's son or daughter, spouse or parent having a serious health condition.
- The employee had run out of regular leave [red flag!]. - Health care information about her back problems seemed suspicious, contradictory and sketchy, and it turned out that her regular physician had not examined the employee but rather had relied on the opinion of another physician. - She was provided an opportunity by her employer to rectify the situation. - A pre-termination meeting was scheduled by the employer to give the employee a fair opportunity to present her case. - The employer protected itself by requesting a form authorizing release of medical information so it could contact the physician who provided the questionable FMLA letter. She was terminated and filed a discrimination claim under the FMLA based on the following contentions: - She was entitled to FMLA leave because of her alleged back problems, arguing that under federal regulations, a medical certification form is presumed to be valid and that the company had no right to question and ultimately reject the forms she submitted for her back problems, and that if the company didn't agree with the doctor's opinion about her alleged back complaints, its only option was to schedule a second opinion. - She claimed entitlement to FMLA leave to care for her daughter alleged to be suffering from post partum depression and assist with the care of her newborn grandchild.
ADA: regarded, rejected Illustrative and helpful, though not controlling law. The employee's restrictions meant she was incapable of performing the essential functions of the job, and her employer's recognition of her employee's limitations is not an "erroneous perception" of disability, rather, it is recognition of fact. Ruiz Rivera v. Pfizer Pharmaceuticals, No. 07-1595 (1st Cir., 3/2708); 2008 U.S. App. LEXIS 6354; Internet: http://www.ceridian.com/www/content/10/12455/12487/14395/14406/ruizcase.pdf [enhanced lexis.com version]. NLRA: letter writing, terms and conditions of employment A school bus driver wrote letters to the school board, not the general public, at the direction of his union expressing concerns terms and conditions of employment and whether the new contractor would honor the union recognition. The First Circuit Court of Appeals ruled this to be protected by the National Labor relations act. Our jurisdiction is the Tenth Circuit, so this is illustrative rather than controlling law. Five Star Transportation, Inc. v. NLRB, No. 07-1316 (1stCir., 3/31/08); 2008 U.S. App. LEXIS 6788 [enhanced lexis.com version]. Title VII: adverse employment actions based on interracial associations, mixed motive Illustrative, but not controlling law. An employer discharged a white basketball coach married to an African-American woman along with an African-American coach, but retained a white coach who was not married to an African-American woman. "[W]here an employee is subjected to [an] adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee's own race." Holcomb v. Iona College, No. 06-3815-cv (2nd Cir., 4/1/08); 2008 U.S. App. LEXIS 6897; Internet: http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA2LTM4MTUtY3Zfb3BuLnBkZg==/06-3815-cv_opn.pdf [enhanced lexis.com version]. Title VII: associational retaliation claims upheld Illustrative, but not controlling law. An employee's claim alleging that he was discharged by his employer in retaliation for an EEOC charge filed by his then-fiancée who also worked for the company will proceed to trial. A divided Sixth Circuit went beyond a text of Title VII's anti-retaliation provision and held the statute protects related or associated third parties from retaliation where it is clear the third party's protected activity motivated the employer's action. This is in line with rulings from other circuits, the EEOC's Compliance Manual, and the Supreme Court's reasoning in Burlington N. & Santa Fe Railway Co. v. White. Thompson v. North Am. Stainless, LP, No. 07-5040 (6th Cir., 3/31/08); 2008 U.S. App. LEXIS 6776; 2008 FED App. 0129P [enhanced lexis.com version]. Title VII: religion, harassment, hostile work environment Illustrative, but not controlling law. "If Americans were forced to practice their faith under the conditions to which [the plaintiff] was subject, the Free Exercise Clause and the embodiment of its values in the Title VII protections against workplace religious prejudice would ring quite hollow." The employer contended there were no physical threats and asserted a "sticks and stones" defense based on assertions that the workplace was "inherently coarse". "Title VII contains no such `crude environment' exception. The EEOC provided sufficient evidence that the employee "persistently suffered from religious harassment of the most demeaning, degrading, and damaging sort." EEOC v. Sunbelt Rentals, 2008 U.S. App. LEXIS 6789 (4th Cir., 3/31/08) [enhanced lexis.com version]. ADEA: differing benefits, coordination with Medicare, no discrimination, EEOC exemption Controlling law. This retirement benefits case deals with a specific facts and a specific EEOC regulation, so benefits practitioners need to read the Third Circuit Court of Appeals case that the United States Supreme Court rejected for further review on a Petition for a Writ of Certiorari. Denial of a Petition for a Writ of Certiorari means that the United States Supreme Court did not deem the ruling of an appellate court erroneous, and the legal effect is that the lower appellate court ruling is as a practical matter controlling law [Note: NM appellate procedure works the same way]. AARP v. EEOC, No. 05-4594, 489 F.3d 558, 2007 U.S. App. LEXIS 12869 (3d Cir. Pa., 2007) Internet: http://www.ca3.uscourts.gov/opinarch/054594p.pdf [enhanced lexis.com version], certiorari denied, AARP v. EEOC, No. 07-662, 552 U.S. 1279, (3/24/08); 2008 U.S. LEXIS 2762 [enhanced lexis.com version]. Coordinating retiree benefits with Medicare benefits (or comparable state benefits) is important to some employers in designing retiree benefit programs. Recognizing that, in December of 2007 the EEOC promulgated a final rule to exempt from ADEA coverage employers who coordinate retiree benefits in that way. Because this exemption would allow benefits for those of age 65 and older to differ from younger retirees, the AARP sued to prevent implementation of that rule. The Third Circuit Court of Appeals reviewed the issue and ruled that the exemption was proper. As a practical matter, denial of certiorari by the United States Supreme Court now effectively allows the EEOC exemption. The order of the United States Supreme Court, No. 07-662, is brief and states no reason, which is why benefits practitioners need to read the ruling and reasoning in the appellate court decision, No. 05-4594 cited above. Arbitration: judicial review limited to issues arbitrated Controlling law. Because there is "a national policy favoring arbitration with just the limited review needed to maintain arbitration's essential virtue of resolving disputes straightaway", parties may not agree to expand judicial review of arbitration awards beyond what is specified in the Federal Arbitration Act. Though this was not an employment law case, that reasoning would apply to such cases. Hall Street Assoc. LLC v. Mattel, No. 06-989 (USSC, 3/25/08); 2008 U.S. LEXIS 2911; Internet: http://www.law.cornell.edu/supct/cert/06-989.html [enhanced lexis.com version]. Title VII: race, discrimination; disparate treatment, pretext; disparate impact not proved Not controlling law, but a good illustration of faulty interviewing. The employer denied a position to an African-American applicant with twenty years of experience and boilermaker training through the TVA's own training program. What the employer did wrong that resulted in affirmation of an award based on liability for disparate treatment: - the hiring committee had changed its selection matrix in order to weigh the (inherently subjective) interview as more than 70 percent of an applicant's final score, and technical expertise as only 30 percent, Download 5.55 Mb. Share with your friends:
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