Jurisdiction: 10th Circuit

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  Alex Held was one of five National Account Coordinators employed at Ferrellgas’ Overland Park, Kansas location, and was the only male employee there in that job description.
  
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  He began working for Ferrellgas on February 13, 2008.
  
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  His complaints were:
  
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    For a couple of months before an April 2009 meeting his immediate supervisor, Amber Potts, was rude, sharp-toned, sighed, and had an off-putting look.
    
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    At the April meeting to discuss his concerns about coworker Megan Foresee, her tone and behavior was the same.
    
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    Shortly thereafter there was a meeting a meeting to discuss that conflict, and Foresee explained that she responded to Held as she did because she had a grudge against him because when she was a new employee Held declined to help her despite being more senior, plus she felt he was not carrying his weight on the team; she said that she would work on her attitude and phrasing things more appropriately in the future. Held felt that resolved the conflict.
    
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  Around that time Troy Coats, Held’s second-level supervisor, told Held he was immediately terminating Held’s employment because:
  
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    Coats did not he had handled the situation with Foresee because Held should have first tried to resolve the situation on his own, and
    
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    Held alleged Coats further stated he did not see Held “busting his ass” on his accounts.
    
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  Coats and Potts subsequently testified:
  
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    they were generally concerned that Held could not manage his workload, was often absent from work,
    
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    did not always follow company procedures, and
    
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    was not a team player.
    

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  Held filed a lawsuit alleging that Ferrellgas retaliated against him for complaining about reverse gender discrimination and harassment and the district court granted summary judgment in favor of Ferrellgas.
  
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  The appellate court affirmed the order and judgment of the trial court:
  
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    To assert a prima facie case of gender discrimination in the workplace, a plaintiff must ordinarily show that:
    
    1. 
       the victim belongs to a protected class;
       
    2. 
       the victim suffered an adverse employment action; and
       
    3. 
       the challenged action took place under circumstances giving rise to an inference of discrimination.
       
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    Would a reasonable person have believed he or she was subjected to a hostile work environment?
    
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    Was there disparate treatment, i.e., was he treated differently from other similar situated male employees?
    
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    Was there actually a work environment that a reasonable person would have found so hostile that the terms and conditions of employment had adversely changed?
    
  • 
    The appellate court found that he had failed on all of those required elements of proof and had not proved a prima facie case of discrimination as required by the McDonnell Douglas three-part evidentiary test for his allegations:
    
    1. 
       that [h]e engaged in protected opposition to discrimination,
       
    2. 
       that a reasonable employee would have found the challenged action materially adverse, and
       
    3. 
       that a causal connection existed between the protected activity and the materially adverse action.
       

Title VII, ADEA: gender and age; timely and untimely filing, pattern-or-practice method of proof does not address individual employment decisions, but rather seeks to prove the existence of “a pattern of discriminatory decision-making

(10^th Cir., 12/11/12); http://www.ca10.uscourts.gov/opinions/11/11-3211.pdf [enhanced lexis.com version].

• 
  During Douglas Milhauser’s leave of absence to serve in the military, his position was eliminated as part of a reduction in force.
  
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  After his release from military service, he contacted his employer and requested timely reinstatement under USERRA.
  
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  His employer responded:
  
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    his position had been eliminated during his leave of absence,
    
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    the company would be reinstating the plaintiff to the position of termination, and
    
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    thus ending his employment with the company.
    

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  His contention on appeal was:
  
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    USERRA uses the phrase "position of employment in which they would have been employed" to describe the reinstatement rights of returning veterans in 38 U.S.C. section 4313(a)(1)(A), an employer cannot terminate a returning veteran's employment and meet its reinstatement obligations, and.
    
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    an employer must reinstate the returning veteran to a position and then may only terminate that employee if it proves the affirmative defense under 38 U.S.C. section 4312(d)(1) that the employer's circumstances have so changed as to make reemployment "impossible or unreasonable."
    
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  Appellate reasoning:
  
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    Based on USERRA's language and on the language of its regulations,
    
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      "the escalator principle [under USERRA] requires that an employee's career trajectory be examined as if his or her employment 'had not been interrupted by' military service."
      
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      Thus, if an employee's employment would have been terminated had the employee not taken a military leave of absence, but remained employed, then termination of employment is a proper "reinstatement position" under USERRA.
      
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    Further, the court also relied upon USERRA's implementing regulations, which clearly provide that "[d]epending on the circumstances, the escalator principle may cause an employee to be reemployed in a higher or lower position, laid off, or even terminated." Accordingly, that clear language, adopted by the United States Department of Labor to implement USERRA, was entitled to "considerable deference" by the court.
    
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    Finally, it also relied upon a district court decision that had reached the same conclusion, although under an earlier prior military leave statute adopted by Congress.
    

Arbitration: arbitrator determines if contract arbitration governs the dispute over a confidentiality and noncompetition agreement, enforceability of arbitration agreements under the Federal Arbitration Act (FAA) policy extends to all such contracts

State courts rather than federal courts are most frequently called upon to apply the Federal Arbitration Act(FAA), 9 U. S. C. §1 et seq., including the Act’s national policy favoring arbitration. It is a matter of great importance, therefore, that state supreme courts adhere to a correct interpretation of the legislation. Here, the Oklahoma Supreme Court failed to do so. By declaring the noncompetition agreements in two employment contracts null and void, rather than leaving that determination to the arbitrator in the first instance, the state court ignored a basic tenet of the Act’s substantive arbitration law. The decision must be vacated.

extended leave request, but it offered to accommodate her medical needs in any manner, including reduced hours or work restrictions, after returning on December 16 return, which was when her remaining FMLA leave would expire. Her physician had told her that January 4^th was more probable. She did not respond to that offer. Her employer’s written FMLA policy states

• 
  The required proof to establish a prima case of FMLA interference, an employee must show
  

1. 
   the employee was entitled to FMLA leave,
   
2. 
   some adverse action by the employer interfered with the employee’s right to take FMLA leave, and
   
3. 
   this adverse action was related to the exercise or attempted exercise of the employee’s FMLA rights.
   

• 
  She claimed her affidavit showed her employer had misrepresented her employer had misrepresented the amount of FMLA leave she had remaining, but her subsequent deposition testimony contradicted that. Thus:
  
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    she did not present any evidence of misrepresentation by her employer,
    
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    evidence showed her employer had provided her with an accurate written statement of remaining leave, and
    
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    it provided her the full amount of FMLA leave available to her.
    
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  Her contention then was that though her employer ought to have granted her request for extended leave, it wasn’t obligated to provide more than the statutory amount, and her deposition testimony was that Ms. Peterson “did everything she could to help [her] with all of [the] FMLA issues,” and did not think CCH was trying to interfere with her ability to use FMLA leave.
  
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  Not surprisingly, the district court ruled there was no FMLA interference, and the appellate court affirmed it.
  

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  Her argument was that her employer’s stated reason for its adverse employment action of terminating her employment was a pretext for retaliation.
  
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  The applicable test here for establishing a prima facie case of FMLA retaliation, an employee must prove that she:
  

1. 
   availed herself of a protected right under the FMLA,
   
2. 
   was adversely affected by an employment decision, and
   
3. 
   that there was a causal connection between the two actions.
   

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  The evidence was:
  
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    Her employer’s termination letter stated that it was terminating her employment because she had exhausted her FMLA leave and was not able to return to work.
    
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    She does not dispute that CCH’s FMLA policy states employees may be terminated if they fail to return to work at the expiration of their FMLA leave.
    
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    She admitted in her deposition that this policy was reasonable and that she did not think CCH was attempting to retaliate against her because she had used FMLA leave.
    
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    It is also undisputed that CCH encouraged her to return to work by December 16 and offered to provide her with any necessary work accommodations.
    
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  Not surprisingly, the district court ruled there was no FMLA interference, and the appellate court affirmed it.
  

Public sector, Title VII: state government attorney; retaliation; fired for bearing bad news; summary judgment dismissal for employer affirmed

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  She claimed it was in retaliation for telling her boss what he didn’t want to hear about allegations of unlawful discrimination by two employees, and that those allegations ought to be taken seriously.
  
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  Her boss claimed that . . .
  

In his view, Ms. Weeks just didn’t do much work. Asked to produce a piece of draft legislation in 2007, she didn’t finish it until September 2008. Told to update a set of regulations later in 2007, months slipped by with almost nothing to show for it. Besides that, he says, Ms. Weeks spent altogether too much time on personal matters at the office — as many as five hours a day. This, the Fire Marshal insists, is why she was fired, not the content of the legal advice she rendered.

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  The appellate ruling was that she had to establish a prima (basically legally sufficient) case:
  

A prima facie case requires the plaintiff to present facts from which a reasonable jury could conclude (among other things) that she had engaged in “protected opposition” to Title VII discrimination.

duties of her position” as a lawyer by “advising the agency of potential personnel

issues” and doing that much didn’t amount to “protected opposition to

discrimination.” Weeks v. McLaughlin, No. 09-CV-02498-CM, 2011 WL

2631831, at *8 (D. Kan. June 28, 2011).
The district court’s holding is consistent with this circuit’s precedent. This

court has held that for an in-house lawyer to engage in protected opposition she

must do more than provide legal advice to her employer on how best to resolve a

claim of discrimination asserted by another employee. To engage in protected

opposition the lawyer must instead “step outside . . . her role of representing the

company and either file (or threaten to file) an action adverse to the employer,

actively assist other employees in asserting [Title VII] rights, or otherwise engage

in activities that reasonably could be perceived as directed towards the assertion

• 
  The federal district trial court concluded Frank Brown had provided sufficient evidence by which a reasonable jury could find (1) that he was entitled to FMLA leave and (2) that ScriptPro interfered with his FMLA rights, and
  
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  that he was correct in that timing can be particularly suggestive in determining whether termination relates to the exercise of FMLA rights.
  
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  However, his employer provided undisputed evidence that he would have been terminated anyway for other reasons (indicated above in the key-word tags).
  
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  Thus, there was an issue of timing for those other reasons when the adverse employment action was in “temporal proximity” to the FMLA leave. This brings is to the McDonnell Douglas three-part evidentiary test, which you may recall as requiring the parties – the plaintiff (employee) and the defendant (employer) to go through these steps:
  

1. 
   the plaintiff must establish a prima facie (basically, legally sufficient) case of discrimination (i.e., a rebuttable presumption of discrimination), and if the court rules that burden has been met,
   
2. 
   the defendant must produce evidence of a legitimate non-discriminatory reason for its actions, and if the court rules that burden has been met, then the presumption of discrimination becomes invalid, and then
   
3. 
   the plaintiff must present facts to show an inference of discrimination.
   

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  The district court found that he produced uncontroverted evidence of actually having worked overtime at home (however, not how much):
  
  • 
    his own testimony,
    
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    his wife’s testimony, and
    
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    discussion with his VP about his work at home.
    
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  But he failed to show the amount of overtime by justifiable or reasonable inference.
  
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    chose not to enter any of the hours he allegedly worked from home in ScriptPro’s timekeeping system, and
    
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    did not keep any other record of any sort to document the hours worked.
    
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  His contented that his employer was that responsible for keeping accurate records and that the employee should not bear the burden of proving the precise amount of overtime worked.
  
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  The appellate court rejected that argument:
  
  • 
    Courts only relax the plaintiff’s burden to show the amount of overtime worked where the employer fails to keep accurate records.
    
  • 
    It was undisputed that his employer keeps accurate records, and employees can access the timekeeping system from home.
    
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    He could have done that easily to could have entered his hours, and in fact, he was required to do so.
    
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  Thus, there was no failure by his employer to keep accurate records, but he failed to comply with his employer’s timekeeping system
  
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  When the employee fails to notify the employer through the established overtime record-keeping system, the failure to pay overtime is not an FLSA violation.
  

Title VII: race, retaliation, claim of failure to hire based on race, timing of adverse employment action, temporal proximity, 10 month gap, unique circumstances, causation analysis; evidence, McDonnell Douglas three-part evidentiary test, pretext argument needs to be reconsidered, summary judgment inappropriate, full trial may be necessary on pretext issue