Jurisdiction: 2nd Circuit

As Dana Thomas’s manager, McGrory proposed to begin a Performance Improvement Program (PIP). She objected and complained to the Vice President for Human Resources. She objected because she believed it was not warranted; she believed his increasing micromanagement and criticism of her work performance was based on “sexual orientation and/or gender discrimination and harassment” as an openly gay female, which she had announced to her coworkers in an e-mail on November 10, 2008 stating that she had married despite the Proposition 8 prohibition. Additionally, she alleged she had witnessed him In addition to McGrory's criticism of her work and abilities, Thomas claimed she had witnessed McGrory “telling off-color jokes in the presence of groups, which indicated his lack of good judgment and sensitivity to those of other cultures.

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  He alleged his termination violated various public policies, among other things:
  
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    being male,
    
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    participating in an employer's internal investigation, and
    
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    he was defamed when the company’s Vice President of Human Resources disclosed to another employee why was fired.
    
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  Court disposition and reasoning:
  
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    he was an at will employee who could be fired at any time for any reason, or no reason, so long as it wasn’t an illegal reason – “No inference of discrimination can reasonably be drawn from the mere lack of conclusive evidence of misconduct by the employee.”
    
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    Not a “protected witness” – the company’s internal investigation was not a “proceeding under this part” as referenced in FEHA – i.e. participating in the internal investigation was not a protected activity.
    
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    As a supervisor, he failed to fully cooperate in the investigation and apparently lied – so termination of his employment for such misconduct is lawful – the FEHA “does not shield an employee against termination or lesser discipline for either lying or withholding information during an employer's internal investigation of a discrimination claim. In other words, public policy does not protect deceptive activity during an internal investigation. Such conduct is a legitimate reason to terminate an at-will employee.”
    
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    Legitimate reason to fire – there is “no authority requiring an employer to retain an at-will employee until his conduct creates civil liability.”
    
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    No discrimination against men:
    
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      he had no evidence to support this claim,
      
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      there was male witness who was not disciplined,
      
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      the investigator made no anti-male comments,
      
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      there was no statistical evidence that the company exhibited a bias against male employees,
      
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      he criticized the investigator’s decision to believe the female witnesses and disbelieve the men, but even if the investigator made the wrong decision, there was no evidence that her choice was made due to a gender bias – “There is no evidence of express antipathy to males, no evidence of disparate discipline, indeed nothing more than rank speculation that the investigator was biased against males,” – “No reasonable inference of a discriminatory motive can be drawn from this evidence.”
      
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    No defamation. Though it is possible for a company to defame an employee in connection with an investigation or termination, a legal defense called “privilege” is difficult to overcome:
    
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      California Civil Code section 47. A communication is privileged if made: “In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information.”
      
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      This defense applies to statements by management and coworkers to other coworkers explaining why an employer disciplined an employee.
      
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      There was no proof that the employer made malicious comments about the reason for termination of his employment.
      
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      There was no evidence that management believed otherwise when stated he was terminated for not cooperating.
      
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      There was no other evidence from which to infer that the statements regarding the reason for termination was made with malice.
      

Litigation: social media, cell phones, text messages, cloud-based storage, electronic discovery (e-discovery), EEOC misconduct, failed to comply with court order, special master, sanctions, Federal Rule of Civil Procedure (FRCP) 16(f)

Title VII: women, gender discrimination, harassment
Jurisdiction: Colorado federal trial court
EEOC v. The Original HoneyBaked Ham Co. of Ga., Inc., (U.S.D.C.CO., 2/28/13); 2012 U.S. Dist. LEXIS 160285 [enhanced lexis.com version]; ©2013 Littler Mendelson P.C. article at http://www.littler.com/publication-press/publication/eeoc-sanctioned-failing-produce-class-claimants-social-media-esi-and-o.
This notice is for litigators. Essentially, the EEOC changed its position on complying with the order of the trial judge and failed to follow the e-Discovery process. This misconduct would have cost the employer more money, and it filed a motion for sanctions. The court found that though it was not quite bad faith, it delayed the proceedings and created unfair expense for the employer. Read the informative Littler Mendelson article for the details - March 18, 2013 EEOC Sanctioned for Failing to Produce Class Claimants' Social Media ESI and Other e-Discovery Misconduct, by Angelo Spinola, Danielle Kitson, Paul Weiner, and Katherine Hinde.
Title VII, Title IX, New York State Human Rights Law (NYSHRL): litigation, sexual harassment, prompt remedial action, retaliation – timing – knowledge – adverse employment action decision, evidence – McDonnell Douglas – pretext, summary judgment
Jurisdiction: 2^nd Circuit, New York state law
Summa v. Hofstra Univ., No. 11-1743 (2^nd Cir., 2/21/13); http://www.ca2.uscourts.gov/decisions/isysquery/a6793313-c7d8-4706-a027-714c56f481a0/1/doc/11-1743_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a6793313-c7d8-4706-a027-714c56f481a0/1/hilite/ [enhanced lexis.com version].
Lauren E. Summa, graduate student alleged sexual harassment by football players, and retaliation by her employer.
Summary by the appellate court panel:
Lauren E. Summa appeals from a memorandum, order, and judgment of the United States District Court for the Eastern District of New York (William D. Wall, M.J) granting summary judgment in favor of defendants Hofstra University, David Cohen, and Melissa Connolly, and dismissing in its entirety Summa’s suit claiming sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and corresponding provisions of the New York State Human Rights Law. We hold that Summa presented evidence sufficient to survive summary judgment with respect to her retaliation claims but not her harassment claim.
Prompt remedial action saved the university from liability for the discrimination claims. However, the court found she had shown sufficient evidence of pretext in her adverse employment action retaliation claims to proceed to trial:

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  he timing of the subsequent adverse employment actions, and
  
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  knowledge by decisionmakers of her complaints.
  

Title VII: race, disparate treatment, hostile work environment, adverse employment action. employment terminated, wrongful termination under state law, allegations of unsatisfactory work performance, collective bargaining agreement (CBA), arbitration, evidence - McDonnell Douglas, increased scrutiny

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  Luis Arango claims he submitted medical certification supporting his need for FMLA leave from November 22 through January 15.
  
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  Apparently, the TPA neither clarified the certification or otherwise questioned its validity, but rather accepted the certification and allowed him only four weeks of leave through December 18.
  
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  For the remaining half of his requested leave, he was told it would be extended only if he provided additional supporting medical information.
  
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  Arango did not, and his employment was terminated.
  

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  His FMLA claim was dismissed because the court ruled it could not be raised against the TPA. His request for a class action was dismissed.
  
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  However, his attorney had also pleaded the legal theory of tortious interference with contract [i.e., the plaintiff alleges that the defendant's wrongful conduct intentionally caused the end of a business relationship that otherwise would have continued.]
  

[Note: Another possible legal theory of liability might be that of principal and agent, i.e., when a person company or entity is retained to do something for another person company or entity, both the principal and the agent can be liable if the agent does something wrong.]

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  Rodney McMillan’s schizophrenia can be managed with calibrated medication.
  
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  He worked as a case manager for ten years with the City of New York’s Human Resources Administration, and since 1997, he worked as a case manager for the HRA Community Alternative Systems Agency, which job consists of home visits, processing social assessments, and meeting with clients on a daily basis in the Agency’s office.
  
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  The Agency’s flex-time policy requires 35 hours of work each week:
  
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    Arrival time is between 9:00 and 10:00 a.m. (an employee is not considered late until 10:15 as an allowance for having to wait for an elevator),
    
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    Lunch break is an hour.
    
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    Departure time is between 5:00 and 6:00 p.m.
    
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  Tardiness can be either approved or disapproved by a supervisor.
  
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    If approved, an employee may use sick leave or other accumulated time, such as additional hours worked so that time missed can fill out the workweek. If there isn’t any such time accumulated or the employee doesn’t want to use accumulated time, then there is no pay for the time missed.
    
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  His medication causes him to be drowsy and slow in the morning, thus often being tardy, and there was no dispute that is caused by his treatment.
  
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  Over about a period of 10 years, his tardiness was either explicitly or implicitly approved.
  
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  Beginning in 2008, his supervisor, Loshun Thornton, at the direction of her supervisor Jeanne Belthrop, refused to approve any more of his tardiness.
  
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  He then requested a later arrival time to avoid adverse employment action, which was refused:
  
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    A later start time meant he would have to work after 6:00 p.m., after which no supervisors were present.
    
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    His suggestion of working through the lunch hour was rejected.
    
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  May 2009 – he was fined eight days’ pay for tardiness.
  
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  December 2009 – additional adverse employment action was recommended because of his “long history of tardiness”, the City recommended terminating his employment, but later reduced the recommended adverse action to a 30-day suspension without pay.
  

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  He used on an allegation of the ADA, contending that his requested accommodations were reasonable because:
  
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    he often worked past 7:00 p.m.,
    
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    the office is open until 10:00 p.m., and
    
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    he could arrive late and still work the required 35 hours a week.
    
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  Summary judgment dismissal was granted to the employer by the trial judge because the court ruled was “required to give considerable deference to the employer’s judgment” as to whether timely arrival at work was an essential function of a particular job.
  
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  Reversed on appeal:
  
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    Though a “timely arrival is normally an essential function,” the trial court failed to conduct a “fact-specific inquiry” into his situation, but merely assumed that his job required at least seven hours of work each day and that the work could not be successfully performed by accumulating (banking) time on some days to cover tardiness on others.
    
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    Further, the appellate court noted:
    
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      on numerous occasions his tardiness had been allowed for years without discipline, and
      
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      the City allows flex-time hours and regularly permits employees to “bank” time to cover certain late arrivals,
      
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      all of which undermine the City’s assertion that it would have been an undue hardship to grant his request for modified work hours.
      

Wage and Hour: voluntary payments, Wage Act litigation nor precluded