Human resources & employment law cumulative case briefs
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| Martin Tepper . . .
. . . is a Full-Time Regular Letter Carrier for Chagrin Falls USPS. He began his employment on May 3, 1980, and became a Messianic Jew during the 1980s. Messianic Jews hold Sabbath each Saturday and observe Jewish holidays. In 1992, Tepper requested an accommodation from Chagrin Falls USPS that would allow him to not work on Saturdays. This accommodation was granted and from April 1992 until January 2003, Tepper was not required to work on Saturdays or other significant Jewish holidays. Over the years staffing requirements at the postal station decreased, Tepper did not attend a union meeting held to discuss staffing and scheduling matters, and the unanimous vote recommended cutting his accommodation. Over the many years of his USPS employment there had been some grumbling about Tepper's accommodation, and a few jibes at this religious status. Accommodating Tepper put hardships on other carriers. Overtime accommodation costs in the year 2000 were $8,769.60 and $7,015.68 in 2001. Management encouraged Tepper to reserve some of his vacation time for Saturday absences and allowed annual leave without pay and exchanges of days off with other carriers. Tepper sued under Title VII for (1) failure to accommodate his religion and (2) religious discrimination because use of annual leave and leave without pay reduced his annual pay and future retirement benefits. Summary judgment was granted on the employer's motion, and the appellate court affirmed that judgment. Here is the applicable law: Accommodation: Tepper sets forth a religious accommodation claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. [annotated lexis.com version] Title VII states in part: It shall be an unlawful employment practice for an employer - - (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . religion . . . or (2) to limit, segregate, or classify his employees . . . in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's [*9] . . . religion . . . .42 U.S.C. § 2000e-2(a). Religion is defined to include "all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's . . . religious observance or practice without undue hardship on the conduct of the employer's business." 42 U.S.C. § 2000e(j). "The analysis of any religious accommodation case begins with the question of whether the employee has established a prima facie case of religious discrimination." Smith v. Pyro Mining Co., 827 F.2d 1081, 1085 (6th Cir. 1987). To establish a prima facie case, Tepper must show that "(1) he holds a sincere religious belief that conflicts with an employment requirement; (2) he has informed the employer about the conflicts; and (3) he was discharged or disciplined for failing to comply with the conflicting employment requirement." Id. (citation omitted); but see Lawson v. Washington, 319 F.3d 498, 499-500 (9th Cir. 2003) (Berzon, J., dissenting from denial of rehearing en banc) (arguing that the failure to accommodate is itself a Title VII violation.). Using the Pyro Mining test, the appellate court found that elements one and two were met by Tepper because (1) he held a sincere religious belief that conflicted with the station's rotating schedule, and (2) he informed management of the conflict. Tepper failed on the third element because the appellate court found he did not have a prima facie case of discharge or discipline [partially edited]: Tepper asserts that he has been forced to take days off from work without pay in order to avoid Saturday work, and that these days off reduce his annual pay and eventual pension. However, more than loss of pay is required to demonstrate * discipline or discharge. The Supreme Court has stated that "the direct effect of unpaid leave is merely a loss of income for the period the employee is not at work; such an exclusion has no direct effect upon either employment opportunities or job status." Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 70-71, 107 S. Ct. 367, 93 L. Ed. 2d 305 (1986) (quoting Nashville Gas Co. v. Satty, 434 U.S. 136, 145, 98 S. Ct. 347, 54 L. Ed. 2d 356 (1977)). Tepper is simply not being paid for the time he does not work; he has not been disciplined or discharged. Tepper argues that Goldmeier v. Allstate Ins. Co., 337 F.3d 629 (6th Cir. 2003) provides support for his religious accommodation claim. In Goldmeier, the plaintiffs chose to terminate their employment prior to being disciplined by their employer and prior to the start of the policy change that would require them to work on Saturdays. Id. at 632. This Court held that they were not constructively discharged, and restated the requirements of making such a showing: "To constitute a constructive discharge, the employer must deliberately create intolerable working conditions, as perceived by a reasonable person, with the intention of forcing the employee to quit and the employee must actually quit." Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 1080 (6th Cir. 1999); * * * see also Logan v. Denny's Inc., 259 F.3d 558, 568-69 (6th Cir. 2001). Id. at 635. Putting aside the fact that Tepper did not quit, there is no evidence that Chagrin Falls Post Office deliberately created intolerable working conditions, or that there was any intention that the Saturday work requirement was designed to force Tepper to quit. Goldmeier went further to reiterate this Court's requirement that a plaintiff must demonstrate discipline or discharge to succeed in a religious accommodation claim. Id. at 637. Tepper has not been disciplined or discharged, and thus Goldmeier provides no aid to Tepper. Discrimination: [Partially edited] Tepper also appeals the dismissal of his religious discrimination claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. To assert a successful claim of religious discrimination under Title VII, a plaintiff must either present direct evidence of discrimination or, in the absence of direct evidence, present a prima facie * * * case of indirect discrimination by showing (1) that he was a member of a protected class, (2) that he experienced an adverse employment action, (3) that he was qualified for the position, and (4) that he was replaced by a person outside of the protected class or that he was treated differently than similarly situated employees. See Johnson v. Univ. of Cincinnati, 215 F.3d 561, 572 (2000); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). The second prong looks at whether the employee experienced a "materially adverse" employment action. Ford v. GMC, 305 F.3d 545, 553 (6th Cir. 2002); Allen v. Michigan Dep't of Corr., 165 F.3d 405, 410 (6th Cir. 1999). A materially adverse employment action is a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Burlington Indus. v. Ellerth, 524 U.S. 742, 761, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998). Such a change "must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced * * * by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation. Ford, 305 F.3d at 553 (quoting Hollins v. Atlantic Co., 188 F.3d 652, 662 (6th Cir. 1999)). - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1 The Supreme Court has recently expanded the definition of "adverse employment action" for the purposes of a Title VII retaliation claim. Burlington N. and Santa Fe Ry. Co. v. White, 126 S. Ct. 2405, 2415, 165 L. Ed. 2d 345 (2006). In doing so, the Supreme Court distinguished the purposes of the anti-retaliation provision from the anti-discrimination provision in Title VII. Id. at 2411-15. Burlington Northern did not expand or alter this Court's formulation of an adverse employment action for purposes of the discrimination claim before us. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - If the plaintiff is able to present a prima facie case, the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. McDonnell Douglas, 411 U.S. at 802. If the defendant meets this burden, then the burden shifts back to the plaintiff who must show that the defendant's proffered reason is a pretext for discrimination. Id. at 804. Statements by coworkers alleged by Tepper to have been discriminatory were found by the appellate court to be vague, not made by decision-makers, and fell short of demonstrating discriminatory animus. As to the requirement to prove a prima facie case [i.e., basically legally sufficient], Tepper failed to prove that: - he suffered a materially adverse employment action because the pay he missed was for time he did not work, and the reduced pay did not affect his employment opportunities or job status, and rotation was a part of the job requirement [as opposed to a condition imposed on him alone], - comments by coworkers are not protected by Title VII, stated in Faragher v. City of Boca Raton, if the are 'sporadic use of abusive language, gender-related jokes, and occasional teasing", and - he did not show he was replaced by a person outside of his class or treated differently from other similarly situated employees. Employment Practices Liability Insurance: EPLI, claim notification time limits
Negligent hiring or retention; respondeat superior This decision is final and stand "as-is" because the NM Supreme Court quashed [denied] the writ of certiorari [refused to review it because essentially they would not change the ruling and decision of the NM Court of Appeals. Two questions were,answered in this case: 1. Was the employer liable for failing to check on the background of one of its employees either in hiring or retaining him? 2. Was the employer liable for the motor vehicle accident caused by it employee under the legal theory of imputed liability, often also referred to as "respondeat superior"? "Imputed liability" means that the negligence of an employee is imputed (i.e., also assessed against) the employer for the fault of its employee?
Coronado lost on this issue and a jury trial will be conducted on that question to determine if Coronado should be liable for negligently hiring or retaining Fennell. In other words, was Coronado negligent in hiring or retaining Fennell when Coronado either knew or should have known, through the exercise of reasonable care, that Fennell was either incompetent or unfit? Evidence of fitness requires consideration of the risk he might pose to those with whom he might associate. The NM court of Appeals found that Coronado could reasonably anticipate that Fennell might have a motor vehicle accident while driving from jobsite to jobsite. Thus, according to the NM Court of Appeals, two issues need to be considered by the jury when this case proceeds to trial: 1. Public policy statutorily expressed in NMSA 1978, § 66-5-42 states a duty to the public of an employer whose employees are driving for the company, so did the scope of that duty include investigation by Coronado into Fennell's driving record, capabilities or licensing? 2. If so, was that failure a proximate cause of the accident, i.e., could the accident have been avoided if Coronado had checked and not employed Fennell? Respondeat superior: Coronado won on this issue. The legal elements for this issue stated by the NM Court of Appeals were: 1. Was Fennell acting within the course and scope of his employment at the time of the accident? 2. Did Coronado consent to the use of the vehicle driven by Fennell? 3. Did Coronado have the right to control Fennell's operation of the vehicle, or was the use of it so important to Coronado that control could be inferred? 4. Was Fennell acting in furtherance of Coronado's business at the time of the accident? [Note: Each element must be proven by Lessard in order to win against Coronado.]
Title VII: gender discrimination, policy violations, proper documentation, no disparate treatment, no pretext Valid policies prohibiting taking gifts from vendors, adequate training about those policies, proper investigation, proper documentation, and consistent treatment of both the male and the female offenders resulted in a favorable summary judgment in favor of the employer, thus saving the expense of a trial. This case is controlling law in this jurisdiction. Swackhammer v. Sprint/United Management Co., No. 05-3222, 493 F.3d 1160 (10th Cir., 7/9/07); ; 2007 U.S. App. LEXIS 16203; 100 Fair Empl. Prac. Cas. (BNA) 1704; 90 Empl. Prac. Dec. (CCH) P42,908: Internet: http://ca10.washburnlaw.edu/cases/2007/07/05-3222.htm [enhanced lexis.com version] Following up on tips, Dena Swackhammer and Paul Garcia were investigated for violation written policies prohibiting "taking advantage of relationship with vendors". Both knew about the policies because they had been properly trained. In addition to travel records, photographs, emails, etc., an independent investigation disclosed their violation of company policy. The courts found that the employer had a valid reason for termination, and that it was not a pretext. Further, the adverse employment action was consistent against both the woman and the man. Incidentally, there was evidence she presented of other possible violations by others, including her boss who investigated, but it was inconclusive. Litigation: discovery of investigation documents; defamation, retaliation; incomplete attorney-client privilege In the litigation process parties can request documents be produce by their opponents, and this is almost invariably done. Because documentation is so critical to success in employment law cases, it must be done. And because such documentation usually must be produced to the requesting opponent, it is critical that employers anticipated this and make certain that the documentation is fair, objective, professional, comprehensive, indicative of attempts to assist a failing employee (if possible), and of a quality that a hearing officer, judge or jury would find it favorable to the employer and valid evidence of deficient performance by the employee. The specific trial court rule in both state and federal court is civil procedure Rule 34, Production of Documents . . . . As with the Swackhammer case above, it is important that investigations be professionally done because it is highly likely that they will become public. This case is controlling law in our jurisdiction. Gingrich v. Sandia Corporation, 2007-NMCA-101; Internet: http://www.supremecourt.nm.org/opinions/VIEW/07ca-101.html [enhanced lexis.com version] Two of Sandia National Laboratories' internal investigators were of the opinion that their work was being impeded and that their managers were retaliating against them. An independent investigator, Professor Norman Bay of UNM Law School was retained because the Sandia investigators were disqualified by their involvement from investigating the matter. This case is primarily about disclosure of investigatory documents pursuant to a request made by the employees to their employer pursuant to Rule 34. Quoting from the NM Court of Appeals opinion: The letter memorializing Bay's engagement, sent by Lawrence Greher, Senior Attorney for Sandia, instructed Bay to conduct an inquiry into the investigators' allegations that they were: (1) being prevented from fully and faithfully carrying out their assigned duties as security investigators and (2) being retaliated against because of their past or ongoing efforts to ferret out possible fraud, waste [or] abuse at Sandia. {4} Sandia further instructed Bay to conduct a "complete, thorough, and comprehensive investigation into the allegations," to treat his investigation as "attorney-client privileged to the fullest extent possible," and to submit a "comprehensive report on [his] findings to C. Paul Robinson, Sandia's President and Laboratory Director." In addition to submitting a written report containing the results of his investigation, Bay was directed to "advise [Sandia's in-house counsel] from time to time concerning, in general terms, the progress being made in completing [his] investigation." Gingrich's attorney requested Sandia to produce certain items in order to prepare for trial: {6} The district court found that waiver of both the attorney-client privilege and work product immunity had occurred as a result of Sandia's disclosure of the Report prior to and during this litigation, and by Sandia's direct use of the Report in defending against Plaintiff's claim that she was demoted, and constructively discharged, without cause. In determining the scope of the waiver resulting from Sandia's disclosure and use of the Report, the district court ordered that the following additional materials be disclosed as well: (1) communications between Bay, Sandia lawyers, and Sandia representatives regarding Plaintiff and the Report; (2) work product materials prepared by Sandia's in-house counsel and communicated to non-legal representatives of Sandia; and (3) all materials prepared or compiled by Bay relating to the Report. Sandia refused on the grounds that those items were protected by attorney-client privilege, but that argument was rejected by the trial judge because those items formed the basis for Sandia's decision to take an adverse employment action. On appeal, the NM Court of Appeals upheld the ruling of the trial judge except for Bay's personal notes that he had not given to Sandia. ADEA: validity of information at time of decision, pretext Courts focus on what a decisionmaker believed when he took an adverse employment action, and make no difference if it later turns out to be wrong. Proper procedures include, but are not limited to: - Designating one decisionmaker, because group decisions open up inquiry into the motives of each person in the group. - That person should use professional documenting methods discussed in the cases above. This includes, and is not limited to: policies claimed to have been violated, interview/investigation notes, evidence of violations, past disciplinary actions (preferably of similar conduct), etc. Keeping such a file as events unfold is easier than going back and trying to reconstruct one because electronic information may be lost if backup are deleted, etc. - Best practices for good management and thorough documentation of the basis for an adverse employment action are an employer's best justification (and defense in litigation), and giving an employee a written summary of that for which he or she should sign (or have another member of management witness as having been refused) make the matter clear. Enderwood v. Sinclair Broadcast Group, Inc., No. 06-6232, 233 Fed. Appx. 793 (10th Cir., 4/23/07); 2007 U.S. App. LEXIS 9393; 100 Fair Empl. Prac. Cas. (BNA) 745; 12 Wage & Hour Cas. 2d (BNA) 897 [enhanced lexis.com version] Richard C. Enderwood was suspected of violating written policies prohibiting disclosure of confidential information and that was the basis for immediate termination of his employment. Emails indicated he was sending such information about the station to its network. The employer won because the courts found the information the employer had at the time was a valid, nondiscriminatory reason for termination and that it was not a pretext for firing him because of his age. ADEA: comments by management Shooting oneself in the foot hurts. This case is not controlling law in our jurisdiction, but it illustrates the kind of behavior that allows an employee to easily win a discrimination claim or lawsuit. Blair v. Henry Filters Inc., 6th Cir, (10/15/07) [enhanced lexis.com version] These are the damaging statements made by the decisionmaker, each one of which could have been sufficient alone as the basis for ruling in favor of the employee: - his direct supervisor taunted him as "the old man on the sales force", - removed him from a profitable account because he was "too old", and - told another employee he "needs to set up a younger sales force". FMLA: Byrne exception, bizarre behavior, duty to inquire, serious medical condition, constructive notice
- calling the police and - yelling and swearing at her superiors so severely that they locked her out of the building.
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