Human resources & employment law cumulative case briefs
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Controlling law. An employee’s ex-wife fraudulently withdrew everything from his retirement account, and the courts ruled the plan administrator was not held liable because he failed take prompt and appropriate action to protect his assets when his marriage fell apart and apparently became acrimonious and predatory. Foster v. PPG Industries, Inc., No. 10-5123 (10th Cir., 9/5/12); http://www.ca10.uscourts.gov/opinions/10/10-5123.pdf [enhanced lexis.com version] EBEL, Circuit Judge: Plaintiff-Appellant William Foster (“Foster”) sued his former employer, Defendant-Appellee PPG Industries, Inc. (“PPG”), and Defendant-Appellee the PPG Industries Employee Savings Plan (the “Plan”) (collectively, “Defendants”) under the Employee Retirement Income Security Act (“ERISA”) to recover Plan benefits allegedly due him after Foster’s ex-wife fraudulently withdrew Foster’s entire Plan account balance. The district court upheld the decision of the Plan Administrator, who had determined that the Plan was not liable to reimburse Foster for the fraudulently withdrawn benefits. Foster appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM. Title VII: hostile work environment, among other issues, anonymous racial discriminatory behavior, duty to adequately and diligently investigate discrimination claims; duty to provide a safe workplace; $3.5 Million punitive damages verdict. Illustrative; not controlling law. One of the major objectives of the anti-discrimination acts is to provide a workplace that is not hostile, a place where work can be done free from harassment. And when harassment is reported, an employer has a duty to adequately investigate, take appropriate and sufficient prompt remedial action, and follow up with training and other measures reasonably sufficient to avoid future misconduct. A typical difficult situation could be when an employee makes a complaint but says something like, “I just want you to know about this, but please don’t do anything about it because I don’t want to create problems.” Well, there already is a problem, and it needs to be taken care of, not dodged. In the May case, the discriminatory hostile behavior is described in graphic detail in the summary by the appellate court set forth below. May, Jr., v. Chrysler Group, LLC, Nos. 11-3000 & 11-3109 (7th Cir., 8/23/12); http://www.ca7.uscourts.gov/tmp/L40K51GB.pdf [enhanced lexis.com version] TINDER, Circuit Judge. More than fifty times between 2002 and 2005, Otto May, Jr., a pipefitter at Chrysler’s Belvedere Assembly Plant, was the target of racist, xenophobic, homophobic, and anti-Semitic graffiti that appeared in and around the plant’s paint department. Examples, unfortunately, are necessary to show how disturbingly vile and aggressive the messages were: “Otto Cuban Jew fag die,” “Otto Cuban good Jew is a dead Jew,” “death to the Cuban Jew,” “fuck Otto Cuban Jew fag,” “get the Cuban Jew,” and “fuck Otto Cuban Jew nigger lover.” In addition to the graffiti, more than half-a-dozen times May found death-threat notes in his toolbox. Different medium, same themes: “Otto Cuban Jew muther fucker bastard get our message your family is not safe we will get you good Jew is a dead Jew say hi to your hore wife death to the jews heil hitler [swastika].” The harassment was not confined to prose. May had his bike and car tires punctured, sugar was poured in the gas tanks of two of his cars, and, most bizarrely, a dead bird wrapped in toilet paper to look like a Ku Klux Klansman (complete with pointy hat) was placed in a vise at one of May’s work stations. May contacted the local police, the FBI, the Anti-Defamation League, and, of course, complained to Chrysler. And Chrysler responded: The head of human resources at the Belvedere plant met with two groups of skilled tradesmen (like May) and reminded them that harassment was unacceptable, a procedure was implemented to document the harassment, efforts were made to discover who was at the plant during the periods when the incidents likely occurred, and a handwriting analyst was retained and used. Unfortunately, the harasser or harassers were never caught. May sued Chrysler in 2002 (relatively early in the cycle of harassment) and alleged a variety of claims under Title VII and 42 U.S.C. § 1981. Only his hostile work environment claim survived summary judgment and made it to trial. And at trial there were only four contested issues: First, whether someone other than May was responsible for the harassment. (Chrysler, obviously, would not be liable for self-inflicted “harassment.”) Second, whether Chrysler took steps reasonably calculated to end the harassment. Third, to determine if punitive damages were appropriate, whether Chrysler recklessly disregarded May’s federally-protected rights. And fourth, the amount of damages, if any. The jury concluded that May carried his burden and awarded him $709,000 in compensatory damages and $3.5 million in punitive damages. Responding to Chrysler’s post-verdict motions, the district court sided with May on the first two issues: May had presented sufficient evidence for the jury to conclude that Chrysler was liable for the hostile work environment. The district court believed, however, that the jury’s compensatory damages award was excessive. Rather than returning to trial on compensatory damages, May accepted remittitur to $300,000. On the third issue, punitive damages, the district court sided with Chrysler, and concluded that May failed to present sufficient evidence for the jury to decide that Chrysler recklessly disregarded his federally-protected rights. The verdict on punitive damages was therefore vacated. Both parties appeal. Chrysler argues that it should not be held liable at all; May argues that the jury was entitled to conclude not only that Chrysler was liable but that it was reckless, and so the jury’s verdict on punitive damages should be reinstated. The district court correctly rejected Chrysler’s motions for judgment as a matter of law on liability. It should have also rejected Chrysler’s post-verdict motion for judgment as a matter of law on punitive damages. We reverse in part to reinstate the verdict. [Investigation and other responses by the employer were woefully inadequate, and it literally paid the price for inadequate attention to a terrible problem.] Benefits: denial of future contingency payments after termination for misconduct, mooning executives; claim of implied contract rejected Illustrative; not controlling law. As serious as the law can be, occasionally some humor ought be allowed. In this Illinois case, “turning the other check” was a bad idea, and I hope you’ll pardon me for taking some liberties with this case, which others on the internet have also done. Selch v. Columbia Management, et al., Nos. No. 1-11-1434 & 1-11-2060 (cons.) (2012 IL App (1st) 111434, 8/29/12); http://www.state.il.us/court/Opinions/AppellateCourt/2012/1stDistrict/1111434.pdf [enhanced lexis.com version] Facts:
Litigation:
Municipal employment dispute with multiple issues involving an employee handbook and whether its disclaimer of being an employment contract holds up in the light of possible proof of additional circumstances:
Controlling law. Because this case involves very specific facts and laws, it will not be briefed. Litigators involved with these issues may read the case at the link cited below. However, the portion of the opinion dealing with the employee handbook issue is instructive, and that paragraph of the opinion is set forth below as a review the applicable law on handbooks and how other factors such as statement, employment practices and other factors can invalidate an express written disclaimer in an employment handbook contending that the handbook does not create an implied employment contract – i.e., employers must be very careful of what is said and done in the workplace. Madrid v. Village of Chama, No. 30,764, 2012-NMCA-071; certiorari denied, June 29, 2012, No. 33,651; http://www.nmcompcomm.us/nmcases/NMCA/2012/12ca-071.pdf [enhanced lexis.com version] Opinion summarized by Linda M. Vanzi, Judge of the Court of Appeals: {1} Plaintiff Jonathan Madrid appeals from a district court order granting a motion to dismiss in favor of Defendant Village of Chama (the Village). We address two issues on appeal: (1) whether Madrid was required to appeal the Village’s administrative decision terminating his employment by petitioning the district court for a writ of certiorari and (2) whether the district court erred when it concluded that Madrid failed to state a claim on which relief could be granted because the Village’s employee handbook, Village of Chama, N.M., Personnel Policies 1999-01 (the Ordinance), clearly stated that it did not create an implied contract. We hold that Madrid was not required to petition the district court for a writ of certiorari. Thus, Madrid’s failure to timely appeal the decision pursuant to Rule 1-075(D) NMRA was not a jurisdictional defect requiring dismissal. We further hold that the district court erred in granting the Village’s Rule 1-012(B)(6) NMRA motion for failure to state a claim. Finally, we clarify that our courts should not evaluate motions to dismiss for failure to state a claim in accordance with the United States Supreme Court’s interpretation of the Federal Rules of Civil Procedure. * * * {19} In this case, Madrid’s fourteen-page complaint provided a detailed account of the facts leading up to and including his termination. Based on those core factual allegations, count one of the complaint specifically alleged that the Ordinance, handbook, memoranda, letters, forms, and other documents setting forth reasons for just cause termination established an implied contract between Madrid and the Village and that the Village breached that contract by failing to outline the disciplinary offenses listed in the Ordinance warning employees that discipline could be sought if the infractions were proved. Madrid’s complaint further stated that the Village breached its contract (1) by failing to conduct an impartial investigation on July 12, 2009; (2) by failing to conduct a pre-termination hearing in accordance with the Ordinance; (3) by failing to conduct a post-termination hearing in accordance with the Ordinance; (4) by allowing the Mayor to attend the post-termination hearing; and (5) by issuing the final termination letter more than 14 days after the post termination hearing. Count two of the complaint asserted that the implied contract between Madrid and the Village contains an express or implied covenant of good faith and fair dealing and that Madrid was denied the “right to receive the benefit of [the] implied contract with the Village due to the Village’s failure to follow [the O]rdinance.” Taking these well-pleaded facts as true and construing them in a light most favorable to Madrid, we conclude that Madrid’s complaint states a claim for breach of implied contract and breach of the covenant of good faith and fair dealing upon which relief may be granted. The complaint sets forth detailed factual allegations of the incidents giving rise to Madrid’s claims and gives the Village adequate notice of the legal claims asserted against it. The district court’s dismissal of the complaint with prejudice was in error, and its decision is reversed. ADEA, ERISA and ADA: discrimination, retaliation, pattern or practice under the ADEA, statistics, statements about older employees, statements by Boeing managers and executives about the economic health of the Wichita Division, statements from lower-level management, communications between Spirit and its consultants, subjective process, tracking employees’ ages, expert testimony, pattern or practice conclusion, disparate impact under the ADEA, ERISA § 510, ADA and Title VII; mass litigation, summary judgments for employers affirmed Controlling law. This extensive case is primarily of interest to litigators. The PDF version runs forty-five pages, and attempting to “brief” it might leave out important points. Further, it is interesting reading on the various issues and provides a good review of numerous human resources and employment law concerns. Apsley v. The Boeing Company, No. 11-3238 (10th Cir., 8/27/12); http://www.ca10.uscourts.gov/opinions/11/11-3238.pdf [enhanced lexis.com version] This case arises from the Boeing Company’s (“Boeing”) 2005 sale, to Spirit AeroSystems, Inc. (“Spirit”),1 of facilities in Wichita, Kansas, and Tulsa and McAlester, Oklahoma (the “Wichita Division” or “Division”). On June 16, 2005, Boeing terminated the Division’s entire workforce of more than 10,000. The next day, Spirit rehired 8,354 employees, who had been selected by Boeing’s managers. Although older employees predominated in the workforce both before and after the sale, a lower percentage of older workers than younger ones were rehired.2 The plaintiffs (the “Employees”) sued, seeking to represent a class of about 700 former Boeing employees who were not hired by Spirit. Employees alleged, among other things, that Boeing, Onex, and Spirit (the “Companies”) violated the Age Discrimination in Employment Act (“ADEA”), the Employee Retirement Income Security Act (“ERISA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), and the Americans with Disabilities Act (“ADA”). In two separate orders, the district court granted summary judgment on the Employees’ Title VII and ADA claims, Apsley v. Boeing Co.,05-1368-MLB, 2007 WL 3231526 (D. Kan30, 2007), and their ERISA and ADEA claims, Apsley v. Boeing Co., 722 F. 2d 1218 (D. Kan. 2010).3 The court denied the Employees’ motion for reconsideration. Mem. & Order, Apsley v. Boeing Co05-1368-EFM (D. Kan. Mar. 28, 2011) (Doc. 365) [hereinafter “Mem. & Order of Mar. 28, 2011”]. The court certified its orders as final judgments under Federal Rule of Civil Procedure 54(b), and the Employees appealed. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Comments: Facing problems of competitiveness in the late 1990s, Boeing decided it need to significantly change its business model to concentrate on initial engineering and design, sales and marketing, and final assembly of aircraft. Its Wichita Division had about 10,671 employees, of whom approximately 8,354 would be affected by a major change of this nature – almost all of whom were in categories protected by various anti-discrimination acts, and of course, a great deal of litigation resulted. With a group of this size, statistical evidence was essential. To guide you with reading the lengthy and technical opinion, here is a brief outline of how the appellate court organized its analysis:
Each one of these detailed sections contains clear statements of applicable law. Few companies or agencies, if any, in New Mexico will face a change of this magnitude, but the review of the pertinent law and analysis is a valuable short course. ADEA, Title VII: age, national origin; sealed records; summary judgment order in favor of employer affirmed Controlling law. However, this case is of limited value because it involves evidence in sealed records and depends on very specific facts rather than new law. Formatting in this case is unusual too, so it makes for difficult reading. Lucero v. Sandia Corporation, No. 11-2028 (10th Cir., 8/28/12); http://www.ca10.uscourts.gov/opinions/11/11-2028.pdf [enhanced lexis.com version] : discovery; evidence, theory, importance of timely presentation of a critical argument Controlling law. Introductory paragraph of the opinion: began with an angry bill collector, metamorphosed into a discovery dispute, and now serves mostly as another reminder about the importance of preserving your best arguments in the proper administrative forum rather than trying them for the first time in an appellate courtService Company of New Mexico v. National Labor Relations Board, Nos. 11-9536 & 11-9540 (10th Cir., 8/28/12); http://www.ca10.uscourts.gov/opinions/11/11-9536.pdf [enhanced lexis.com version] of the appellate court: PNM’s preserved arguments fail on their merits and PNM’s unpreserved arguments we cannot hear, however meritorious they may be. Congress has given the courts only the power to help those who help themselves by developing their best objections during the administrative process, rather than waiting until it’s all over and the case is on appeal. PNM’s petition for review is denied. The Board’s cross-petition for enforcement of its order is granted. sacroiliac joint dysfunction, unable to perform the essential functions of the job, FMLA, sick, and vacation leave exhausted, no reasonable accommodation available, at-will employment terminated [note cautionary statements below]; evidence, McDonnell Douglas test applied; claim dismissed Controlling law. This plaintiff was unable to perform the essential functions of her job, and there was no reasonable accommodation available. Note, however that her constitutional due process claim failed because Kansas courts do not recognize a property tight for public sector employees, and other jurisdictions may rule differently on that issue. Robert v. Board of County Commissioners of Brown County, Kansas, No. 11-3092 (8/29/12); http://www.ca10.uscourts.gov/opinions/11/11-3092.pdf [enhanced lexis.com version] LUCERO, Circuit Judge. Catherine Robert had worked as supervisor of released adult offenders for ten years when she developed sacroiliac joint dysfunction. After a lengthy leave of absence, including the period authorized by the Family and Medical Leave Act (“FMLA”), Robert remained unable to perform all of her required duties, and she was terminated. For the reasons stated hereafter, we conclude that Robert’s discharge did not constitute discrimination in violation of the Americans with Disabilities Act (“ADA”), retaliation in violation of the FMLA, breach of contract, or abridgment of procedural due process. Note: The law applying to public sector employees and at-will status may differ in other jurisdictions: Robert’s § 1983 procedural due process claim fails for the same reason as her contract claim: her employment was at-will. Kansas courts have been quite clear that at-will employees lack a property interest in their position. See Farthing, 38 F.3d at 1136. Absent a property interest, there can be no violation of Due Process. example, see Camuglia v. City of Albuquerque, 448 F.3d 1214, 1219 (10th Cir. 2006): A procedural due process claim requires (1) “a protected property interest,” and (2) deprivation of that interest without “an appropriate level of process.”
Appellant Bradley Seff filed this class action lawsuit, alleging that Appellee Broward County’s (Broward’s) employee wellness program violated the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq. The district court granted Broward’s motion for summary judgment, finding the employee wellness program fell within the ADA’s safe harbor provision for insurance plans. I. Broward offers its employees a group health insurance plan. In 2009, employees enrolling in Broward’s group plan became eligible to participate in a new employee wellness program sponsored by Broward’s group health insurer, Coventry Healthcare (formerly known as VISTA). employee wellness program consisted of two components: a biometric screening, which entailed a “finger stick for glucose and cholesterol,” and an “online Health Risk Assessment questionnaire.” Coventry Healthcare used information gathered from the screening and questionnaire to identify Broward employees who had one of five disease states: asthma, hypertension, diabetes, congestive heart failure, or kidney disease. Employees suffering from any of the five disease states received the opportunity to participate in a disease management coaching program, after which they became eligible to receive co-pay waivers for certain medications. Participation in the employee wellness program was not a condition for enrollment in Broward’s group health plan. To increase participation in the employee wellness program, however, Broward imposed a $20 charge beginning in April 2010 on each biweekly paycheck issued to employees who enrolled in the group health insurance plan but refused to participate in the employee wellness program. Broward suspended the charges on January 1, 2011. Seff, a former Broward employee who incurred the $20 charges on his paychecks from June 2010 until January 1, 2011, filed this class action,1 alleging that the employee wellness program’s biometric screening and online Health Risk Assessment questionnaire violated the ADA’s prohibition on non-voluntary medical examinations and disability-related inquiries. On the parties’ crossmotions for summary judgment, the district court granted Broward’s motion, finding that the ADA’s safe harbor provision for insurance plans exempted the employee wellness program from any potentially relevant ADA prohibitions. Because it found that the employee wellness program fell within the ADA’s safe harbor provision, the district court declined to address whether the program imposed non-voluntary examinations or inquiries that would have otherwise been prohibited under the ADA. the opinion offers little or no guidance on how employers ought to handle such situations. Here are two URL links articles discussing the case that may provide more perspective and ideas:
ADA: medical examination, continued employment, employer’s request for psychological evaluation and possible counseling Illustrative; not controlling law. In order to decide about continuing the employment of a “distressed” employee, it required psychological evaluation and counseling. The standard for inquiring about the nature or severity of an employee’s possible disability is that the employer must show it to be “job-related and consistent with business necessity.” This applies both to medical examinations of current employees and to post-offer pre-employment physicals. Also, and importantly, this 6th Circuit case held that the employer’s requirement that the employee be evaluated by a mental health counselor as a condition to keeping her employment constituted a medical examination under the ADA. Kroll v. White Lake Ambulance Authority, No. 10-2348 (6th Cir., 8/22/12); ; Ogletree Deakins http://www.employmentlawmatters.net/uploads/file/8-22-12-8thCir-psych%20exam%20=%20medical%20exam.pdf; [enhanced lexis.com version].
One can well understand that action by the employer, but it had ADA implications
Analysis:
Here is the URL link to the Ogletree Deakins article providing helpful observations about how to proceed in such situations, particularly for the matters of “job-relatedness” and “business necessity”, plus adequate documentation of that entire process: http://www.employmentlawmatters.net/2012/08/articles/ada/employers-request-for-psychological-counseling-as-criteria-to-continued-employment-is-viewed-as-a-medical-examination-under-the-ada/. ADEA, ERISA and ADA: discrimination, retaliation, pattern or practice under the ADEA, statistics, statements about older employees, statements by Boeing managers and executives about the economic health of the Wichita Division, statements from lower-level management, communications between Spirit and its consultants, subjective process, tracking employees’ ages, expert testimony, pattern or practice conclusion, disparate impact under the ADEA, ERISA § 510, ADA and Title VII; mass litigation, summary judgments for employers affirmed Download 5.55 Mb. Share with your friends:
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