Human resources & employment law cumulative case briefs

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  Her supervisor once referred to her job duties as “girly work”.
  
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  He immediately apologized, she didn’t complain, but the president heard about it and spoke to the supervisor, and the supervisor complained to her.
  
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  A coworker:
  
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    referred to a female vendor as “Double D” and made other comments about how he admired her chest size,
    
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    made boorish comments about feminine care products,
    
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    spoke enviously about how women can have multiple orgasms
    
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    suggested she clean the trailer while wearing a French maid’s costume, and
    
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    repeatedly told her to “f----“ off during a disagreement.
    
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  Her supervisor heard some of the coworker’s comments but did nothing to stop them.
  
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  She complained to the company president, who then conducted an investigation, which included hiring a court reporter to record the statements of each witness.
  
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  The president reprimanded the supervisor for failing to stop the coworker’s misconduct and was warned that he would be fired if such misbehavior happened again.
  
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  Following the investigation, she felt her supervisor began petty criticism of her work and was ridiculing her in front of subcontractors.
  
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  Finally, the pettiness escalated:
  
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    Her supervisor lost his temper when she told a subcontractor that no company employees would attend the subcontractor’s social event because they were all going to the wedding of the supervisor’s daughter.
    
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    Coworkers whined and tattled to the president, who blew up and fumed that he was sick of the drama and told her that she had a problem getting along with her supervisor and that it would be best if she packed her belongings, which she did, and was escorted from the building.
    

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  Disgusting behavior, but neither severe nor pervasive enough to survive a motion for summary judgment on the hostile work environment claim, but
  
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  enough of a factual issue on retaliation to proceed to trial.
  

[Note: It’s not unusual that even if the discrimination claim fails, the retaliation claim ( and other claims ) may survive and succeed and result in a judgment of as much or more than for discrimination.]

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  http://www.courts.ca.gov/opinions/nonpub/B232823M.PDF;
  
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  http://www.google.com/#hl=en&gs_rn=7&gs_ri=psy-ab&cp=59&gs_id=5&xhr=t&q=Winston+v.+Countrywide+Financial+Corp.+et+al.,+No.+B232823&es_nrs=true&pf=p&output=search&sclient=psy-ab&oq=Winston+v.+Countrywide+Financial+Corp.+et+al.,+No.+B232823+&gs_l=&pbx=1&bav=on.2,or.r_qf.&bvm=bv.44442042,d.cGE&fp=7d6c36e61d74ed8b&biw=704&bih=1045;
  
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  http://www.fearnotlaw.com/articles/article53750.html [enhanced lexis.com version].
  

$3M verdict reversed for failure to show causal connection between activities relied on as related to retaliation and termination of employment.

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  Winston contended he was retaliated against for two events:
  
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    July 2006 – some of his reports were reassigned to another employee after he had filed a complaint with California’s Division of Occupational Safety and Health regarding an alleged chemical exposure in the workplace.
    
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    December 2006 – executives threatened to fire him after he refused to change an audit report to a rating agency to present the company’s succession planning practices in a manner more favorable version
    
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  Acquisition of the company:
  
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    2008 – Bank of America announced plans to acquire Countrywide Financial.
    
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    Interview for position – not accepted as not be a “good fit”.
    

1. 
   he or she engaged in protected activity,
   
2. 
   the employer discharged the employee, and
   
3. 
   a causal link existed between the protected activity and the discharge, such as a retaliatory motive against the employee that led to termination of employment.
   

Essential to a causal link is evidence that the employer was aware that the plaintiff had engaged in the protected activity.

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  No evidence presented that decisionmaker had unfavorable information at interview of previous matters.
  
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  Decided not to hire for “legitimate and nonretaliatory” reasons:
  
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    No open position for an executive with his expertise (interviewer already held the equivalent position).
    
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    Winston’s base salary exceeded interviewer’s
    
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    Found Winston to be arrogant during the interview and did not believe he would fit well with Bank of America’s corporate culture.
    
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  Cat’s paw theory rejected for lack of causal link:
  
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    BofA acquired countrywide for its loan portfolio, not its human resources employees.
    
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    BofA hired none of the executives he relied in his contentions.
    

Arbitration: Title VII, "pattern-or-practice" claim, "substantive right to challenge systemic discrimination", class action allegations

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  waiver of statutory substantive right,
  
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  systemic discrimination, and
  
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  pattern-or-practice.
  

Informative article by Constangy, Brooks & Smith, LLP, 3/29/13, at http://www.constangy.com/communications-448.html.

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  The class representative could not rely on random statistical samples to establish liability,
  
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  individual issues predominated over common issues case, and
  
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  the class representative failed to show that the employer had a uniform policy of depriving managers of meal or rest breaks.
  

FMLA: transfer to new position, calculation of damages – “unduly speculative”- back pay – front pay, trial court – abuse of discretion – remanded to recalculate damages

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  The "definitively and specifically" standard conflicts with § 806 of SOX, which prohibits retaliation against employees for reporting information that they "reasonably believe" violates SOX – its previous decision in Passaic Valley Sewerage Comm’rs v. U.S. Dep’t of Labor, 992 F.2d 474 (3d Cir. 1993) stated that for the whistleblower provision to accomplish the goals of the statute, then "employees must be free from threats to their job security in retaliation for their good faith assertions of corporate violations of the statute."
  
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  Looking at SOX legislative history of § 806, it also held that an employee must establish both a subjective, good faith belief that his or her employer violated a provision listed in SOX, and also that his or her belief must be objectively reasonable.
  

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  This approach is overly broad because it doesn’t to take into account the statutory requirement that the whistleblower’a complaint relates to one of the six categories of federal law.
  
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  This standard also could allow complaints that merely allege wrongdoing without also showing that the violation is even covered by § 806.
  

Arbitration, Litigation: employment law – adverse employment action – employee grievances, appeal and error – standard of review, civil procedure – summary judgment – remedies – declaratory judgment

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  it violated California’s prohibition against employer interference with employee communications and
  
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  there were First Amendment free speech concerns.
  

[Note: The phrase “qui tam” refers to a legal action to recover a penalty under a statute – this is to encourage actions by an individual or individuals that otherwise might not be taken and gives part of the penalty to the individual or individuals bringing the action and the rest to the state or a public entity.]