Human resources & employment law cumulative case briefs
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| Jarvis v Potter, No. 06-4090 (10th Cir., 8/3007); 2007 U.S. App. LEXIS 20789; Internet: http://www.kscourts.org/ca10/cases/2007/08/06-4090.htm [enhanced lexis.com version].
Lanny Bart Jarvis, a decorated Vietnam War veteran, suffered from post-traumatic stress disorder (PTSD), but his employment was terminated because of concerns for the danger he posed to coworkers. He was easily startled, jumpy, combatively defensive, and on one occasion inappropriately touched a female employee. This opinion sets forth an extensive history of such events. Judge Hartz' appellate opinion concludes [partially edited]: We AFFIRM the district court's grant of summary judgment on Mr. Jarvis's discrimination claim and his retaliation * * * claims based on failure to transmit Mr. Palmer's statement to the investigator and on his placement on administrative leave. But we REVERSE the judgment as to his claims that the Postal Service retaliated against him by (1) denying him pay or access to his accrued leave while he was on administrative leave, and (2) terminating him rather than allowing him to take disability retirement; on those claims we REMAND for further proceedings. Union: pre-hire agreement; contract renewal, binding contract; timing of notice; arbitration A pre-hire agreement is allowed by Section 8(f) of the National Labor Relations Act, which means that a union and an employer in the construction industry may enter into an agreement covering wages, conditions of employment and methods of hiring prior to hiring any employees without committing an unfair labor practice. At issue was whether the employer's notice of refusal to renegotiate the pre-hire agreement was timely and effective. It was not. This case is controlling law in our jurisdiction. Sheet Metal Workers' Int'l Assn v McElroy's, Inc., No. 06-3189 (10th Cir., 8/29/07); 2007 U.S. App. LEXIS 20627 [enhanced lexis.com version]. After affirmation of the independent National Joint Adjustment Board (NJAB) arbitrator's ruling in favor of the union, affirmation by the NJAB, affirmation by the federal district trial court, our 10th Circuit court of appeals also affirmed because the employer's notice was late, coming after the union had served notice of intent to renew the pre-hire agreement: Here, the district court was correct to enforce the NJAB's order directing the parties to negotiate new agreement. The Union served McElroy's with notice of reopening more than ninety days prior to expiration of the agreement; negotiations became "deadlocked" when McElroy's refused to negotiate; and the Union submitted the case to arbitration pursuant to Article X, Section 8 prior to expiration of the agreement. Stated simply, this opinion means that contract provisions will be enforced, in this case the agreement to renegotiate the pre-hire agreement. Union: coercion, construction project owners, union-only project labor agreements, permit extortion, environmental projects, unfair labor practice (ULP) Involved in this case is pressure on construction project owners when they start to apply for required regulatory permits and approval for projects. Over the years building trades unions would oppose the project in governmental hearings, especially the environmental and zoning aspects. As practical matter, this slows the project and the tendency is then that owners of the projects bend under this pressure and accept less than favorable union contract terms in order to progress to completion. Glens Falls Building and Construction Trades Council (Indeck Energy Services, Inc.), 350 NLRB No. 42 (2007) [enhanced lexis.com version]. These kinds of cases depend on their particular facts as to whether the project owner is is engaged in the construction industry as defined by Section 8(e) of the National Labor Relations Act. Benefits: deductions allowed, group plan over and above wages Deductions from employee paychecks are usually restricted by state employment law statutes. However, a supplementary compensation rewarding employees, over and above their regular wages, for their collective efforts producing a positive financial result for their employer has some attractive aspects to consider. One observation about these kinds of plans is that they may draw allegations that they discourage reporting such problems as work injuries, discrimination and/or harassment, etc.; as always, whether that is true is another matter. See NMSA § 50-4-1 through 31 for our jurisdiction's basic state statutes, among other laws; Internet: http://www.conwaygreene.com/nmsu/lpext.dll?f=templates&fn=main-h.htm&2.0 This case is not controlling law in our jurisdiction, but employers interested in incentive plans that involve deductions from paychecks may want to check the details and consult with legal counsel. It is noted that a number for courts in eastern states have reached similar results. Prachasaisoradej v. Ralphs, No. S128576 (Cal., 8/23/07); 2007 Cal. LEXIS 8909; Internet: http://www.courtinfo.ca.gov/opinions/documents/S128576.PDF [enhanced lexis.com version]. This bonus plan was based on target profit and target bonus figures. If actual profits increased in relation to the bonus target profits, the percent of the target bonus paid was increased. Calculations were based on "normal concepts of profitability". Reductions from gross target profits were, among other things: - workers' compensation claims, - cash shortages, - merchandise shortages or shrinkage, - the costs of non-employee tort claims not caused by the willful or dishonest acts or gross negligence of the employees, and, among to the things, - costs of goods sold, utilities and the renting of the premises (which are typical deductions from gross profits). Though the opinion is not as clear as attorneys might prefer, apparently the major factor persuading the majority of the justices was that the bonus was supplemental and not earned by any individual employee's efforts, and thus not actually a wage. Attorney-client privilege: discovery, investigation, retaliation, hostile work environment Attorneys' attention is invited to this civil procedure discovery case: Gingrich v. Sandia Corporation, 2007-NMCA-101; Certiorari denied, No. 30,527, July 30, 2007 [enhanced lexis.com version]. Detailed legal case not briefed because of its intricate and extensive complexity relating to civil litigation procedural rules primarily of interest to litigators. Title VII: English language requirement; direct evidence of discrimination Requiring that English be spoken in the workplace can expose employers to claims of discrimination based on national origin unless there is a valid business purpose that English be spoken in matters of safety, health, quality control, process-related matters, etc. This is a complicated case involving factual issues, timing, and other specific factors. Basically, trial of this direct discrimination claim will revolve around those factors. This case is controlling law in our jurisdiction. If the issue of an English-only language policy is critical to your company or clients, then you should read the entire decision for all of the intricate details, twists and turns that cannot accurately be represented in a brief. Nguyen v. Gambro BCT, Inc., No. 05-1422 (10th Cir., 6/20/07); 2007 U.S. App. LEXIS 14956; Internet: http://www.kscourts.org/CA10/cases/2007/06/05-1422.htm [enhanced lexis.com version]. Gambro manufactures medical devices for blood collection and processing, and it requires assemblers to have (1) either a high school diploma or a recognized equivalent and (2) also to be fluent in reading and writing English. Despite those requirements, it hired Dung Nguyen, a Vietnamese woman. After she was hired the company developed and implemented guidelines for use of English in the workplace for all matters related to process in order to ensure high quality standards and team unity. Nguyen worked for Gambro for almost three years, and for her first two years received positive performance evaluations. Trouble arose in her third year for inappropriately playing around with male coworkers, and she was sent home early that day. A second incident a few months later involved an allegation that she had spoken disrespectfully about a coworker in Vietnamese to another coworker. From that point on, the matter of conversations in Vietnamese became the subject of this claim, as well as her employment status, adverse employment actions, and the timing of all of that. Ultimately, she was fired. She claimed discrimination based on race, color, national origin, sex and retaliation. Summary judgment was granted in favor of the employer in all issues. The appellate court affirmed summary judgment on her retaliation claim, but allowed her to proceed to trial on her claim of direct discrimination. As to the proof of direct discrimination, the elements will be: 1) was Dung Nguyen in a protected class, 2) was she qualified for her job, 3) was she fired, and 4) was the position still open [i.e., not eliminated] after her employment was terminated? She will not need to show that she was replaced or treated any differently than any other person not in a protected class who was similarly situated. Clearly she is in at least one of the protected classes, performance evaluation seemed to indicate she was qualified for her job, she was fired, and the position was open after she was fired. Gambro faces the issue that its reason for firing her was a pretext, i.e., had she breached confidentiality restrictions on employment actions by talking about them to a coworker? This is the point at which the testimony about conversations, timing, and other matters will be critical to the outcome of the case. Title VII: sexual harassment, retaliation, adverse employment action The NM Scorpions hockey team threatened to publicize rumors of a former female employee's sexual activities, paid no regard to the truth of those rumors, and opposed her application for unemployment benefits. The trial court ruled in favor of the employer on all counts. The appellate court agreed with the trial court on all but the retaliation claim, finding that there were adverse employment actions upon which the employee might be able to recover. This case is controlling law in our jurisdiction, and it is important to note because it is this jurisdiction's first consideration and application of Burlington Northern & Santa Fe Railway Company v. White retaliation case. Williams v. W.D. Sports, N.M., Inc., No. 05-2127 (10th Cir., 8/7/07); 2007 U.S. App. LEXIS 18721; Internet: http://www.kscourts.org/ca10/cases/2007/08/05-2127.htm [enhanced lexis.com version]. The appellate court summarized the case [partially edited]: Several female former employees of the New Mexico Scorpions, a minor league hockey team, filed suit against the team and various of its managers, alleging that they engaged in sexual harassment and other conduct proscribed by Title VII and state law. After a 10-day trial, a jury found for defendants on all counts. In this appeal, plaintiffs direct us to no fewer than thirty rulings they argue were mistaken and require reversal. We find one such argument meritorious. After the district court's decision, and during the pendency of this appeal, the Supreme Court issued Burlington Northern & Santa Fe Railway Company v. White, ____ U.S. ____, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006), setting forth * * * a new rubric for analyzing Title VII retaliation cases. In White, the Court held that an employee subjected to employer conduct, whether inside or outside the workplace, that well might dissuade an objectively reasonable worker from making or supporting a charge of discrimination suffers a sufficiently adverse action to state a claim under Title VII. Because a reasonable jury could find that the employer in this case took such an action against one of the plaintiffs before us, Rosann Williams, we reverse and remand her retaliation claim for trial. On all remaining scores, we affirm the judgment of the district court. Title VII: religion, national origin, pervasive hostile work environment mental anguish Religious harassment claims have risen in recent years, and in this case the employee is entitled to a jury trial E.E.O.C. v. WC&M Enterprises, Inc., No. 05-21090 (5th Cir., 8/10/07); 2007 U.S. App. LEXIS 19105; Internet: http://www.ca5.uscourts.gov/opinions/pub/05/05-21090-CV0.wpd.pdf [enhanced lexis.com version]. Harassment: These were the hostile actions [partially edited]: Rafiq began having problems with harassment at Streater-Smith immediately following the September 11, 2001 terrorist attacks. When Rafiq arrived at work for his afternoon shift on that day, a number of his co-workers * * * and managers, including Matthew Kiene (a co-worker), Kevin Argabrite (a finance manager), Jerry Swigart (Rafiq's direct supervisor), and Richard Burgoon (the general manager of the dealership), were watching television coverage of the attacks. Upon seeing Rafiq, Kiene called out, "Hey, there's Mohommed," and Argabrite said, "Where have you been?", in a mocking way, at which point everyone began to laugh. Rafiq inferred from these comments "that [his] supervisors and colleagues were implying that [he] had participated in some way in the terrorist attacks against the United States." After the United States took military action against Afghanistan later in 2001, Kiene and Argabrite began calling Rafiq "Taliban" whenever they saw him (i.e., multiple times per day). In addition, Rafiq's manager, Swigart, also called Rafiq "Taliban" on four or five occasions. Rafiq repeatedly asked Kiene and Argabrite to stop calling him "Taliban," to no avail. He also complained a number of times to Swigart and Burgoon without any real success. Kiene and Argabrite also allegedly ridiculed and harassed Rafiq in other ways. For example, Kiene asked Rafiq, "Why don't you just go back where you came from since * * * you believe what you believe?" Kiene and Argabrite mocked Rafiq's religious dietary restrictions and his need to pray during the workday. They also often referred to Rafiq as an "Arab," even though Rafiq told them on numerous occasions that he was from India. In addition, Argabrite once played a "Taliban" joke over a speaker on the sales floor. According to Rafiq, this harassment continued through the end of his employment. On October 16, 2002, Rafiq got into a dispute with his manager, Swigart, after Swigart told him that it was mandatory for all employees to attend a United Way meeting. When Rafiq questioned what, if any, connection there was between the United Way and his job, Swigart said, "This is America. That's the way things work over here. This is not the Islamic country where you come from." After the confrontation, Swigart issued Rafiq a written warning, which stated that Rafiq "was acting like a Muslim extremist" and that he could not work with Rafiq because of his "militant stance." On October 26, 2002, Argabrite "banged" on the partition separating Rafiq's office space from the sales floor, and said to Rafiq, "Got you." According to Rafiq, Argabrite allegedly did this every * * * time he walked by Rafiq's office in order to startle him. This time, however, Rafiq responded by banging on the partition himself and saying, "Don't do that." Argabrite then allegedly got in Rafiq's face and told Rafiq that he was a manager, so Rafiq could not tell him what to do. Rafiq later complained to Burgoon about Argabrite's continual harassment. Two days later, Rafiq was fired from Streater-Smith. Mental anguish: The type of mental anguish involved in a federal hostile work environment claim is different from what may be defined under state law. In the instant case, Rafiq testified at his deposition that the alleged harassment caused problems with his family life that led him to seek counseling from several mosques, that he had difficulty sleeping, lost 30 pounds, and suffered gastrointestinal problems. Although Rafiq equivocated about whether his gastrointestinal problems were attributable to the harassment, the record evidence is sufficient to show that the harassment caused some discernible injury to his mental state even when those symptoms are not considered. Accordingly, the district court erred in concluding that the EEOC could not recover for any mental anguish that Rafiq suffered. Title VII: racial discrimination, plagiarism, retaliation, reprisal Plagiarism in his application, not racial discrimination, was the reason for the community college employer (1) refusing to select the employee for president of the college and (2) for demoting him to a position with paying a significantly lower salary. Gilbert v Des Moines Area Community College, No. 06-3021 (8thCir, August 8, 2007); 2007 U.S. App. LEXIS 18755; Internet: http://www.ca8.uscourts.gov/opndir/07/08/063021P.pdf Discovered in the application of Fred Gilbert were statements found to have been copied almost word for word from two separate textbooks, which Gilbert admitted, but stated that (1) he had hired a consultant to assist him in completing his application, (2) the consultant prepared the essay answers for Gilbert and apparently committed the act of plagiarism, and (3) he was unaware any plagiarism had occurred. The appellate court ruled that: Based on the results of DMACC's investigation, the DMACC Board of Directors voted to terminate Gilbert's contract as Urban Campus Provost on the ground "Dr. Gilbert's application for President of DMACC contained substantial acts of plagiarism and acts of misrepresentation." The decision to remove Gilbert from academic administrative employment was influenced largely by DMACC's consideration of Gilbert's academic governance duties, which included administering academic programs and determining sanctions for academic misconduct. In President Denson's words, "plagiarism is a serious matter in academia," and DMACC "did not want Dr. Gilbert in a position where [Gilbert was] judging students for plagiarism when he has been involved in plagiarism." DMACC offered Gilbert a new position as a grants specialist, which carried a significant reduction in salary. ADA: violent behavior, standards of performance, adverse employment action, no retaliation, corrective action, no inconsistent treatment no comparable seriousness; no pretext; issue preclusion A teacher who had twice injured her head and suffered from anger outbursts and irritability was fired for unprofessional behavior that disqualified her for the job. Her argument that her verbal outburst were symptomatic of her disability was rejected by the appellate court. Note that this appellate circuit did not follow the reasoning of Gambini v. Total Renal Care, Inc., No. 05-35209 (9th Cir., 11/27/06); 2007 U.S. App. LEXIS 5444;154 Lab. Cas. (CCH) P35,261; 19 Am. Disabilities Cas. (BNA) 1; 12 Wage & Hour Cas. 2d (BNA) 692, which has been viewed by many as aberrant [enhanced lexis.com version]. Though not expressly dealt with in the opinion, it seems there might have been a question of how well past corrective actions were documented, if at all. This case is not controlling law in our jurisdiction, but its point of termination based on behavior rather than disability reinforces the importance of that difference in an adverse employment action. For attorneys, the matter of issue preclusion (collateral estoppel) may be of interest. Macy v. Hopkins County School Board of Education, No. 06-5722, 484 F.3d 357 (6th Cir., 4/12/07); 2007 U.S. App. LEXIS 8382; 154 Lab. Cas. (CCH) P60,392; 19 Am. Disabilities Cas. (BNA) 271; Internet: http://www.ca6.uscourts.gov/opinions.pdf/07a0133p-06.pdf [enhanced lexis.com version]. Sharon Macy's closed head injuries in 1987 and 1996 resulted in numerous problems, including anger outbursts and irritability with others. The school board developed an individualized accommodation plan for her. Over time she had numerous problems with standards of performance such as tardiness, outbursts, inappropriate conduct, etc. She had claimed inconsistent treatment, and while that matter was pending an incident occurred in which she contended she had found a group of boys playing unsupervised basketball, took them into the school and lectured them on the dangers of that, and warned them that they could have been seriously injured or killed. The boys claimed that she had threatened to kill them. An investigation was ordered by the school superintendent, and 31 previous incidents of inappropriate conduct were revealed. Macy was terminated. She lost in an administrative tribunal and all judicial appeals. Criminal charges resulted form the basketball incident, she was found guilty and also lost in the appellate courts. EEOC dismissed her claims. The Sixth Circuit Court of Appeals ultimately wound up with the case, and it too rejected her claims. On its own initiative, that court raised the theory of issue preclusion, which means that a party is precluded from litigating an issue that has previously been litigated and decided [i.e., enough is enough]. Thus, Macy was barred from arguing that there was no factual basis for the allegation by the board that she threatened and disparaged students. Her claim of inconsistent treatment was also rejected by this appellate court because she could not demonstrate instances of substantially similar conduct involving a non-disabled employee who was not terminated. Union: objection to fees unrelated to collective bargaining activities, union procedure, Free Speech, First Amendment Public sector employees who are part of a union bargaining unit, but who are not union members, are required to pay their fair share of gains from union collective bargaining activities. Conflicts arise over how to calculate that fair share and the nature and extent of objections, and typically the union is obligated to provide accurate accounting. This case is not controlling law in our jurisdiction, but it may have persuasive value here. Seidemann v. Bowen, No. 05-6773 (2nd Cir., 8/1/07) [enhanced lexis.com version]. The appellate court ruled that it was a violation of professor Seidemann's First Amendment right of free speech to require him to file annual objections for agency fees and to require him to specifically state what percentages of the disputed fees he found unreasonable. ADEA: statutory claims, arbitration agreement unenforceable A clause in a collective bargaining contract waiving the rights of an employee to pursue statutory discrimination claims in court was held to be unenforceable. This is not controlling law in our jurisdiction, but it could persuasive authority here. Pyett v. Penn Bldg Co., Nos. 06-3047-cv(L), 06-3106-cv(CON) (2nd Cir., 8/1/07); Internet: http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA2LTMwNDctY3Zfb3BuLnBkZg==/06-3047-cv_opn.pdf [enhanced lexis.com version]. No brief is provided because the opinion is about the length of the description above. FMLA: light duty pay Returning to work on light-duty status after a torn rotator cuff injury, the employee was held not entitled to be paid the same pay as her regular job. This is not controlling law in our jurisdiction, but it is helpful reasoning. Hendricks v. Compass Group, USA, No. 06-3637 (7th Cir., 8/6/07); 2007 U.S. App. LEXIS 18606; 154 LC 35,322 [CCH] [enhanced lexis.com version]. Susan D. Hendricks worked as a utility driver when she sustained a workers' compensation injury to her rotator cuff (shoulder area). A week later she returned to work at light duty on workers' compensation benefits pay, a difference of $3.23/hr. She sought payment of the differential under the FMLA. The district court granted her employer's motion for summary judgment on the grounds that FMLA leave is unpaid leave and that the collective bargaining agreement (CBA) did not entitle Hendricks to payment of the wage rate differential. The appellate court agreed and affirmed the judgment of the trial court: Download 5.55 Mb. Share with your friends:
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