Jurisdiction: 4th Circuit

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  Cynthia Laing , delivery driver, fell during work, injured her knees, and required surgery. Around that time her supervisor had become concerned with her efficiency – perhaps she was falsifying her delivery times, and the issue was referred to human resources for investigation.
  
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  Before that investigation began, she scheduled her surgery, and her request for approximately 9 weeks of FMLA leave was approved.
  
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  When she returned to work after her FMLA leave, she was called into her supervisor’s office and management notified her that she was being investigated for falsifying her delivery times.
  
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  She was suspended pending the investigation.
  
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  Three weeks later her employment was terminated because the company had determined that she had violated company policy.
  

Her suit alleged retaliation for exercising her right to take FMLA leave –contending that the charges against her were phony and were a pretext for retaliation for taking leave.

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  The federal district court granted the employer’s motion for summary judgment dismissal.
  
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  The appellate court affirmed the summary judgment:
  
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    The FMLA prohibits retaliation – employers cannot use taking FMLA leave as a negative factor in employment actions.
    
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    However, the court noted that proving FMLA retaliation is similar to proving discrimination under Title VII of the Civil Rights Act of 1964, i.e., an employee must show a discriminatory motive.
    
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    The court found no evidence of discriminatory intent.
    
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      She claimed that when she requested her leave, a supervisor told her “We’ll do our best to keep your job open for you.” The court found that this statement does not show animus against her because of her FMLA leave. “If anything, it suggests exactly the opposite.”
      
    • 
      The employee also brought up a joke that another supervisor made that management was “going to do everything we can to get rid of your route while you’re gone. Just kidding.”
      

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  Finding no evidence of discrimination, the court said the supervisor “never suggested that Laing's route might be changed because she was taking FMLA leave, rather than for some other, lawful reason.” Rather, the court found the company’s reasons for firing her were legitimate – Fed Ex had a strict no tolerance policy when it came to falsifying route times, and it also had documented numerous instances where the employee had apparently violated the policy.
  
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  Further, the court noted the fact that the same Fed Ex managers had terminated another employee for the same offence five months earlier, and that employee had not taken FMLA leave, which indicated it had consistently applied discipline for this type of violation.
  

FEHA: legitimate mixed-motive – denial of damages, back pay, and reinstatement

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  Hired by the City of Santa Monica as a bus driver trainee, Wynona Harris had a “preventable accident” in which she cracked the glass on the bus’s back door.
  
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  She was promoted to probationary part-time driver after completing her training, and during that period Harris was involved in a second “preventable accident” – sideswiping a parked car.
  
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  Later she reported late to work and received her first “miss-out” – defined in the city’s job performance guidelines as a driver’s failure to give his or her supervisor at least one hour’s notice that the driver will not be reporting to an assigned shift.
  
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  A month later she received a written performance evaluation covering her first three months as a probationary driver that stated ,“further development needed.”
  
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  Next month she had another miss-out that she attributed as the stress from attending her daughter’s juvenile court hearing that day that caused her to forget to notify the dispatcher that she would be late for her shift. Bob Ayer, the transit services manager, investigated the circumstances, reviewed her personnel file, and told the bus company’s assistant director that Harris was not meeting the city’s standards for continued employment.
  
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  Shortly thereafter she told her supervisor that she was pregnant.
  
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  Four days later, her employment was terminated.
  

She sued the city violated FEHA’s prohibition against sex discrimination by firing her for being pregnant.

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  Trial court:
  
  • 
    The city contended she was fired for poor job performance, and it requested the court to instruct the jury with a mixed-motive instruction:
    

If you find that the employer‘s action, which is the subject of plaintiff‘s claim, was actually motivated by both discriminatory and non-discriminatory reasons, the employer is not liable if it can establish by a preponderance of the evidence that its legitimate reason, standing alone, would have induced it to make the same decision.

• 
  The trial judge refused to give this instruction, and instead instructed the jury that the city should be held liable if her pregnancy was a “motivating factor/reason for [her] discharge.”
  
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  The jury found in favor of Harris and awarded her more than $300,000 in damages.
  
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  California Court of Appeal:
  
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    It relied on prior appellate cases holding that the mixed-motive instruction is consistent with California law but,
    
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    It held that there was substantial evidence to support the jury verdict that she was fired because of pregnancy discrimination.
    
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  California Supreme Court:
  
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    When a jury finds that unlawful discrimination was a substantial factor motivating an employee’s termination, the employer is “entitled to demonstrate that legitimate, nondiscriminatory reasons would have led it to make the same decision at the time” and
    
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    if the employer succeeds in proving that it would have made the same decision, the court held, it will not be liable for damages, back pay, or reinstatement.
    
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    But do be aware that it noted that the employee may be entitled to declaratory or injunctive relief, where appropriate, as well as attorneys’ fees and costs.
    

[Comment: This case illustrates the importance of critical analysis in sorting through all that is presented in litigation in order to arrive at a correct result – somewhat like not getting lost in the woods. Much like the recent Lucasfilm case, this Harris case aids a judge or jury in getting to the point, perhaps like this – After all of the testimony and exhibits and perhaps some strong emotional factors, here is what to focus on when sorting through all of that to reach legal conclusion.]

Thus, we conclude that Ms. Conroy’s arguments concerning alleged merit disparities fail to raise a “genuine doubt about [the Forest Service’s] motivation” in selecting Mr. Hager. Santana, 488 F.3d at 866 (quoting EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1200 (10th Cir. 2000)) (internal quotation marks omitted).

After neck surgery John Wardia’s permanent impairment was such that he was not allowed by his physician to perform physical restraints required on occasion by a Youth Worker, which was an essential function of the job, and his ADA claim failed. An essential function remains essential, even though it may rarely be needed.

{8} Ultimately, the arbitrator awarded Horne “all wages and benefits lost as a result of discipline in connection with this matter” as well as attorney’s fees. The arbitrator also directed LANL “to restore any loss of rights which Mr. Horne may have sustained as a result of the unfounded ‘infraction’ and the adverse personnel action arising from the report of the infraction.” Apparently satisfied with the award, Horne did not move to vacate or modify the award under the New Mexico Uniform Arbitration Act. See NMSA 1978, § 44-7A-24 & -25 (2001) (permitting a party to petition the court for modification of an arbitration award on certain limited grounds).

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  If a hold order has been issued by a court or government agency, promptly take all necessary steps to obey it and preserve the evidence.
  
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  Even if one has not been issued, and litigation or agency action might come up, promptly take all necessary steps to preserve the evidence.
  

• 
  The trial court instructed the jury that they were allowed, but not required, to assume that the contents of the files destroyed by the defendant would have been adverse or detrimental to her.
  
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  The appellate court ruled that the instruction was appropriate, but added that trial judges had to make express findings of bad faith and prejudice before delivering such instructions, and important findings by the trial judge are:
  

1. 
   that it was done in bad faith by the party who destroyed such evidence; and
   
2. 
   the other party was prejudiced by the destruction of that evidence.
   

NLRB: handbook policies, validity of NLRB decisions and rulings

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  Handbook policy dealing with work-related communications with outside media; Among other things, the policy expressly stated, "Do not contact the media." The Board held that reasonable employees would construe this language as prohibiting them from communicating with the media about labor disputes. For some reason, the Board did not distinguish unprotected communications, such as maliciously false statements, when it determined this policy rule violated Section 7 of the NLRA.
  
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  Handbook policy related to employee communications with "law enforcement": The portion of the policy in question was, "If law enforcement wants to interview or obtain information regarding a [Company] employee, whether in person or by telephone/email, the employee should contact the security department . . . who will handle contact with law enforcement agencies . . . ." The Board found employees could reasonably conclude that "law enforcement" encompassed the NLRB's own agents with the duty it is to investigate and enforce the Act. It acknowledged an employer's legitimate interest, in certain circumstances, in knowing about law enforcement agents' attempts to interview employees, but it found this interest did not support the "broadly written" prohibition in the rule.
  
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  Intranet rule on confidentiality: The confidentiality provision instructed employees to "[n]ever discuss details about your job, company business, or work projects with anyone outside the Company" and to "[n]ever give out information about [the Company's] customers." The Board determined reasonable employees would understand this explicit prohibition on releasing information concerning the "job" or fellow employees to restrict discussion of their wages and other terms and conditions of their employment, and it ruled this provision violated employee's Section 7 rights.
  
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  Intranet rule on company information: It prohibited employees from blogging, entering chat rooms, posting messages on public websites or otherwise disclosing "company information" that was not already disclosed as public record. Though this policy was not unlawful on its face, the Board noted the policy must be read in conjunction with the unlawful confidentiality provision in the employee handbook. It determined that reading the two policies in together would created an understanding that the intranet policy would prohibit disclosure of "employee records," which would include information concerning their own or fellow employees' wages, discipline, and/or performance ratings. Once again, it ruled this provision violated the NLRA.
  

SOX: Sarbanes-Oxley, whistleblower protected activity, "definitively and specifically", relating to one of the categories of unlawful acts n 18 U.S.C. Section 1514A