Human resources & employment law cumulative case briefs
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- interview scoring varied widely, even on apparently objective questions, e.g., the plaintiff's answer to a question about attendance received a 3.7 score; white applicants with virtually the same responses were given scores of 4.2 and 5.5, and - some interview score sheets were changed as many as 70 times for no apparent reason. Thus, the trial court's finding a pretext for rejecting the applicant was proper. However, there was insufficient statistical evidence to support a finding of disparate impact, so that finding was rejected. Dunlap v. Tennessee Valley Authority, No. 07-5381 (6th Cir., 3/21/08); 2008 U.S. App. LEXIS 5898; 2008 FED App. 0121P (6th Cir.); Internet: http://www.ca6.uscourts.gov/opinions.pdf/08a0121p-06.pdf [enhanced lexis.com version]. FMLA, Workers' Compensation: concurrent leave; no FMLA retaliation for exceeding maximum FMLA allowed leave Not controlling law, but a good case to review with expert specialists and attorneys for situations involving both workers' compensation leave and FMLA leave; the full text of the case describes the essential factors necessary to allow such a result. The employer had a written policy of termination for exceeding twelve weeks of FMLA leave. The employee exceeded the 12 weeks and was discharged. To review, DOL regulations, 29 CFR 825.702(d)(2), specifically permit FMLA leave to run concurrently with workers' compensation when the employee's work injury also is serious health covered by the FMLA and the employer has properly notified the employee that the leave times will run concurrently. The employer had fully complied with that regulation. Concerning the employee's argument that one cannot be forced to take FMLA leave, the appellate court rejected it. Dotson v. BRP US Inc., No. 07-1375, (7th Cir., 3/21/08); 2008 U.S. App. LEXIS 5897 [enhanced lexis.com version]. Section 1981: broad interpretation of race and reprisal claims Not controlling law, but a good illustration of a court exercising common sense. An Iranian Muslim woman representing herself filled in a discrimination claim by checking only the court form's boxes for "national origin" and "religion". No explanation was provided on the form to distinguish those terms and "race" or "color", and she did not check off those boxes. On the one hand, pleadings should give reasonable notice of the nature of a claim, but court rules also allow for amendments to clarify such situations. The trial court dismissed her claims, but the appellate court revived them, noting when Section 1981 was passed, "it was routine to refer to nationalities or ethnic groups as races" (i.e., the "German" race). And if the employee meant to allege that she was discriminated against based on her Iranian "race," what she checked on her complaint form was within coverage of Section 1981, and her case was "ambiguous because her national origin and 'race' coincide-Iranian". Abdullahi v. Prada USA Corp., No. 07-2489 (7th Cir., 3/21/08); 2008 U.S. App. LEXIS 5881[enhanced lexis.com version]. Title VII: discrimination, evidence Not controlling law, but an illustration of what might be evidence of a discriminatory or harassing attitude and behavior. The screensaver (or "wallpaper") on the computer of a senior pharmacist consisted of a slave master standing over three black males, which offended an African-American pharmacist who had recently been hired. Her complaints to the director of the pharmacy department were ignored. In a subsequent reduction in force (RIF) several months later resulted in her termination. The employer moved for summary judgment, which the trial judge denied because her complaints about the screen saver protected activity under Title VII and the judge that held the new pharmacist had made a prima facie showing of retaliation. Also, inconsistent testimony about the basis for the layoff decision was enough to raise an inference of pretext. However, the defect in her case was failure to plead a hostile work environment, and so she lost [Note: Nonetheless, the screen saver matter should not be disregarded]. Odom v. Mobile Infirmary, (S.D. Ala., 3/17/08) [Note: No additional citation information is available as of 4/3/08.]. Title VII: gender discrimination, reprisal, retaliation, mixed motive Illustrative; not controlling law. Cynthia DeCaire, a Deputy U.S. Marshal, sued on allegations that the District Marshall retaliated against her after she filed complaints with the Equal Employment Opportunity office. Concerning the mixed motives issue of disloyalty and of discrimination: - the government's attempted defense of disloyalty failed because the District Marshall testified the neither he nor anyone else had such a perception, and - there was sufficient evidence of discrimination that should have resulted in a finding of liability. As to reprisal or retaliation, there was sufficient evidence that also should have resulted in a finding of liability. DeCaire v. Mukasey, No. 07-1539 (1st Cir., 3/11/08); 2008 U.S. App. LEXIS 5174 [enhanced lexis.com version]. Title VII: gender discrimination, pretext, proof from outside of 300 day limit
2008 U.S. App. LEXIS 5488 [enhanced lexis.com version]. Public Sector: drug testing, Fourth Amendment, search
- she would be working as needed with staff at a youth services desk for limited periods of time when needed, - there was no evidence that pages continuously supervised or interacted with or were responsible for unaccompanied children's safety and security, and - further, library pages are not safety-sensitive positions in the sense of teaching positions or positions involving work that pose a danger to the public. Also, the court noted that the city's general concern about drug abuse as a societal issue, the adverse impact of drug abuse on job performance, and the need to protect children from either drug abusers or individuals who might influence children to use drugs did not amount to a special need to justify an exception to requirements of the Fourth Amendment of individualized suspicion. Lanier v. City of Woodburn, No. 06-35262 (9th Cir., 3/13/08); 2008 U.S. App. LEXIS 5353; Internet: http://209.85.173.104/search?q=cache:qM3pP7LDKc0J:www.ca9.uscourts.gov/ca9/newopinions.nsf/5E2248D8908215C98825740B000347DE/%24file/0635262.pdf+%22Lanier+v.+City+of+Woodburn%22&hl=en&ct=clnk&cd=1&gl=us [enhanced lexis.com version]. FMLA: days, counting, holidays Illustrative; not controlling law. Do holidays included when computing FMLA leave? Yes according to this case, which you should read and understand. Though it is not from our jurisdiction, it is the first case to decide this issue, and human resources and employment law practitioners ought to discuss it before making such decisions. Mellen v. Trustees of Boston University, et al., No. 07-1151, 504 F.3d 21 (1st Cir., 9/21/07); 2007 U.S. App. LEXIS 22518; 154 Lab. Cas. (CCH) P35,339; 90 Empl. Prac. Dec. (CCH) P42,965; 12 Wage & Hour Cas. 2d (BNA) 1838; Internet: http://www.ca1.uscourts.gov/pdf.opinions/07-1151-01A.pdf [enhanced lexis.com version]. Linda Mellen took two separate blocks of FMLA leave to care for her mother. November 17th was a holiday in one of those blocks, and she contended it should not be included in calculating her FMLA leave. The appellate court said: LYNCH, Circuit Judge. Linda Mellen challenges the district court's grant of summary judgment in favor of Boston University and an individual, Frances Drolette, on her claims that BU interfered with her substantive rights under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., and the Massachusetts Small Necessities Leave Act (SNLA), Mass. 149, § 52D. Mellen argues that BU miscalculated the period of leave to which she was entitled under both the FMLA and the SNLA, and also used her leave as a negative factor in an employment decision when it treated her failure to return to work as a voluntary resignation. We affirm the decision that BU properly calculated and provided Mellen with the requisite amount of leave. Her appeal as to the negative factor claim is precluded by her voluntary dismissal [*2] with prejudice of her retaliation claims against BU. Accordingly, we affirm the district court's judgment. This case provides the first occasion for judicial interpretation of the intersection of certain FMLA regulations, 29 C.F.R. § 825.200(f) and 29 C.F.R. § 825.205(a), pertaining to proper allocation of intermittent leave. We also address again, as we did in Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325 (1st Cir. 2005), the distinction between substantive and retaliatory claims under the FMLA. Confidentiality: attorney-client, waiver, employer's computer system Illustrative; not controlling law. A ruling similar to this New York County trial court order might well be expected here in our jurisdiction. When fashioning email policies and training employees, this example might help them understand that privacy cannot be expected on the company system. Confidential communications between a client and attorney can be waived if the client in some manner discloses the contents of them to others. Dr. Norman W. Scott made the mistake of communicating with his attorney on the hospital's computer system. His attempt to obtain a protective order to prohibit the employer from access to those communications failed because the trial judge ruled he had waived his privilege. Scott v. Beth Israel Med. Ctr., Inc., No. 602736/04 (NYCtyTrl, 10/17/07); Internet: http://www.acc.com/resource/getfile.php?id=8977 [enhanced lexis.com version]. [Note: Employers could create that the same problem if they communicate via the Internet about legal matters. Strong encryption software is a possible solution. As always, clients and attorneys should confer about this in advance and follow up with a letter of understanding.] Title VII, § 1981: right-to-sue letter, work-sharing state, jurisdiction, precondition, exhaust administrative remedies, court waiver Illustrative; not controlling law. This case is valuable in our jurisdiction because the NM Human Rights Department and the EEOC have worksharing agreement, which means a discrimination claimant may file at either or both agencies to review and decide: (1) there is probable cause that a law was violated, or (2) was not violated, or (3) no determination could be made. Part of the statutory structure is administrative review before a case can proceed to court, a sort of a gate keeping device to make sure only apparently valid cases reach the formal litigation stage. Under option (1), a right-to-sue letter would be issued. In this case the claimant filed with the state agency, which is deemed under the law to be the same as having filed with the federal agency. The requirement of a right-to-sue letter is a condition precedent [i.e., a threshold requirement or ticket of admission). However, not having such a letter is not a jurisdictional bar because in appropriate circumstances a court can waive that requirement. Having right-to-sue letter from the state agency was found to be sufficient. Surrell v. California Water Serv. Co., No. 06-15400 (9th Cir., 3/11/08); 2008 U.S. App. LEXIS 5146 [enhanced lexis.com version]. Title VII: sexual harassment, reasonable fear of retaliation, small town, anonymous plaintiffs, supervisor, registered sex offender; motion to intervene Illustrative, not controlling law. In this unusual case the trial judge allowed intervening plaintiffs to remain anonymous because it found their fear of retaliation to be reasonable. Evidence offered showed that: - the community is small, - the supervisor is a registered sex convicted of rape and had committed violent crimes against the women, and - as supervisor he could get at them in the workplace. Finding that the need for anonymity and safety outweighed potential prejudice to the employer by impeding its ability to meaningfully investigate and prepare its defense, the trial judge granted anonymity for at least the early portion of the case. EEOC v. ABM Industries, (EDCal, 3/4/08); [Note: No other citation information available as of 3/20/08.] ADA: Association discrimination, expense analysis Illustrative; not controlling. Though infrequently claimed, the ADA has a prohibition against discriminating against person associated a person with disability. Plaintiff's claim survived summary judgment and will go to trial on the following evidence: the employer encouraged "creative" solutions to hold down medical expenses in an attempt to diminish its financial losses, and that coincided with terminating an employee because her husband's prostate cancer treatments were considered too expensive. Dewitt v. Proctor Hosp., No. 07-1957 (7th Cir., 2/27/08); 2008 U.S. App. LEXIS 4157; Internet: http://altlaw.org/v1/cases/1144929 [enhanced lexis.com version]. ADEA: temporary restrictions, no accommodation requested, able to perform, inaccurate job description Illustrative; not controlling Accurate job descriptions are essential. Barry K. Duncan, age 51, had brief temporary physical restrictions after a back injury. After the restrictions were lifted the employer required him to submit to a functional capacities evaluation - which was based on an invalid job description not matching actual job functions, and that was not shown to had ever been used for any other employee. Plus, he had successfully performed the job. The employer tried to pass off the error onto the consultant who had drafted the job description. Duncan v. Fleetwood Motor Homes of Indiana, Inc., No. 07-1284 (7th Cir., 2/29/08); 2008 U.S. App. LEXIS 4389; Internet: http://www.ca7.uscourts.gov/tmp/BI14QXN4.pdf [enhanced lexis.com version]. Title VII: race, comments Illustrative; not controlling. "White people teach black kids better . . . than someone from their own race" along with "I can run this school any way I want to" and similar statements, though not direct evidence of discrimination would be allowed into evidence as directly demonstrating the supervisor's alleged discriminatory attitude. King v. Hardesty, No. 06-4163 (8th Cir. 2/29/08); 2008 U.S. App. LEXIS 4384; Internet: http://www.ca8.uscourts.gov/opndir/08/02/064163P.pdf [enhanced lexis.com version]. FRCA: investigation, insufficient procedures Illustrative; not controlling. The Fair Credit Reporting Act requires reasonable investigative procedures. An applicant's job offer was withdrawn because a background report included pending criminal charges pending. Investigation by the applicant took ten minutes compared with thirty-six days for the employer. The company's motion for summary judgment failed and the applicant will have his day in court. Wilson v. CARCO Group, Inc., No. 07-7053 (DCCir., 2/29/08); 2008 U.S. App. LEXIS 4379; Internet: http://altlaw.org/v1/cases/1145010 [enhanced lexis.com version]. ADEA: formal charge, filing, intake form Controlling law. As long as a written submission "taken as a whole" could reasonably be construed as a request for the agency to act, that will be sufficient to satisfy ADEA regulatory requirements. Patricia Kennedy submitted her claim of age discrimination on an Intake Questionnaire form with six pages of affidavit attached, rather than on a Charge of Discrimination (Form 5). The United States Supreme court ruled that her submission was sufficient. In discussing how this ruling might apply to other types of claims, Justice Kennedy cautioned that "employees…must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination." However, because Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act have EEOC filing requirements similar to the ADEA's, her filing was sufficient. Federal Express Corp. v. Holowecki, No. 06-1322 (2/27/08), 552 U.S. ____; 2008 U.S. LEXIS 2196; Internet: http://www.law.cornell.edu/supct/html/06-1322.ZS.html; http://www.law.cornell.edu/supct/pdf/06-1322P.ZO [enhanced lexis.com version]. ADEA: formal charge, missing page Illustrative; not controlling law. As in the Holowecki case, strict formality was an invalid basis for dismissal by the trial judge merely because a page of information was missing. The basis of her claim was obvious from the charge itself and a simple amendment of her submission to include the missing page was allowed by the appellate court. Ximines v. George Wingate High School, No. 06-3627-cv (2nd Cir., 2/20/08); 2008 U.S. App. LEXIS 3494 [enhanced lexis.com version]. Fraudulent Inducement: detrimental reliance on false information Illustrative; not controlling law. In plain talk: a lie, a sucker punch. DuPont employees alleged that the company fraudulently induced them to accept its offer to terminate their employment with DuPont and accept employment with a DuPont subsidiary. DuPont subsequently sold the subsidiary, thus leaving the employees with nothing. In response to the employees' state court suit, DuPont claimed the state court action was preempted by the NLRA or ERISA. The federal appellate court rejected that defense. DuPont v. Sawyer, No. 06-20865 Cons. w/ No. 07-40574 (5th Cir., 2/15/08); 2008 U.S. App. LEXIS 3323 [enhanced lexis.com version]. Title VII, EPA: equal pay, pay disparity, "gender-neutral" rationale, not similarly situated, deficient skills, relevance of college degree, valid business reason Illustrative; not controlling law. Both of Betty Warren's claims were dismissed before trial on summary judgment. - EPA: She complained of being paid less than a male counterpart despite her longer tenure. Her deficient computer skills and high school education contrasted with his proficient computer skills, bachelor's degree and two master's degrees, which amounted to a valid business reason for the employer's actions. - Title VII: She was found not similarly situated to her counterpart because "employers are permitted to compensate employees differently based on skills that are not specifically required in a given job description so long as the employer considers those skills when making the compensation decision". Warren v Solo Cup Co., No. 06-3504 (7th Cir., 2/20/08); 2008 U.S. App. LEXIS 3500; Internet: http://www.websupp.org/data/CDIL/2:04-cv-02270-40-CDIL.pdf [enhanced lexis.com version]. Title VII: racial harassment, retaliation, pretext, insufficient proof, attendance, tardiness, documentation Controlling law in this jurisdiction. Weaks v. Roadway Express, Inc., No. 05-1426 (10th Cir., 12/11/07); 2007 U.S.App. LEXIS 28666 [enhanced lexis.com version]. Clifford M. Weaks loaded and unloaded trucks. His numerous documented incidents of tardiness, leaving work early, and unexcused absences were found to be the basis for terminating his employment, not racial discrimination. The appellate court noted that though he made disturbing allegations indicating that the employer's shipping docks were "enveloped in a toxic miasma of racial bias", his proof was insufficient. Title VII: racial discrimination, hostile work environment, insufficiently severe or pervasive, retaliation, Burlington Northern & Santa Fe Railway Co. Controlling law in this jurisdiction. Egos were not sufficiently bruised to qualify for Title VII protection and relief. [An old academic bit of humor: "Why are faculty disputes so vicious? Because the stakes are so small."]. What is import here is the application of the peculiar retaliation case of Burlington Northern & Santa Fe Railway Co. In order to develop a reasonable working sense of what that case means, we need to study how the trial and appellate courts are interpreting and applying it. Proof of a retaliation claim requires an employee to show: 1. they engaged in protected opposition to discrimination; 2. they suffered an adverse employment action after or simultaneously with the protected activity; and 3. there was a causal connection between the protected activity and the adverse employment action. BN&SF broadened the nature and extent of actions that could be considered adverse, which essentially is adverse action that would dissuade a reasonable employee from either making or supporting a charge of discrimination. Somoza v. University of Denver, No. 06-1488 (10th Cir., 12/21/07); 2008 U.S. App. LEXIS 1170 [enhanced lexis.com version]. Oscar Somoza and Miriam Borstein-Gomez were professors in the Spanish department. Snubbing, eye rolling, and alleged harassment from an untenured junior colleague seemed to be the major complaints. However, the appellate court reminded us that the case seemed to be one of bruised egos, and that lack of good manners isn't enough for a discrimination claim to survive. Title VII and other discrimination laws are not codes of civility. In this case the actions complained of were neither severe nor pervasive. The standard of proof is one of objective factors rather than subjective feelings. Borstein-Gomez also complained that she was not compensated for additional duties in coordinating instructional sessions, but she lost on that because there was no proof that other coordinators were compensated for similar duties. Claims by both plaintiffs that the totality of all of the circumstances added up to be material and adverse were also rejected. Public Sector: EEOC settlement agreement, enforcement of Controlling law in this jurisdiction. Though private sector employees may enforce EEOC settlement agreements, public sector employees cannot; they are limited to specific governmental administrative processes. Lindstrom v. United States, No. 06-8059 (10th Cir., 12/14/07); 2007 U.S. App. LEXIS 29172 [enhanced lexis.com version]. Title VII: sexual harassment, serial harasser, hostile work environment, "knew or should have known", inappropriate response; summary judgment Illustrative; not controlling law. The employer's inadequate response "manifests indifference or unreasonableness in light of the facts the employer knew or should have known." Several female employees raised hostile work environment and retaliation claims. As in the February 2008 NMCA case of Littell v. Allstate, similar acts of harassment of which a plaintiff becomes aware during her employment can be introduced as evidence of a hostile work environment, even if the other acts were directed at others and occurred outside of the plaintiff's presence. Anheuser-Busch, Inc., Nos. 81-1153, 81-1993, 697 F.2d 810 (6th Cir., (2/19/08); 30 Fair Empl.Prac.Cas. 1170; 30 Empl. Prac. Dec. P 33,281; Internet: http://www.altlaw.org/v1/cases/475853 [enhanced lexis.com version]. Title VII: religion, Wiccan necklace, disparate treatment, remarks Illustrative; not controlling law. A female employee's manager made pervasive disparaging remarks about her Wiccan necklace. Hedum v. Starbucks Corp., No. 3:2007cv00024, 2008 U.S. Dist. LEXIS 9867 (D. Ore., 2/7/08) [enhanced lexis.com version]. Discrimination Evidence: "me too", Sprint/United Management Co. v. Mendelsohn Download 5.55 Mb. Share with your friends:
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