Human resources & employment law cumulative case briefs



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Controlling law. The company prepared the three consecutive contracts that governed the sublease with the optometrist, and each of those contracts included a non-compete provision that restricted him from opening another optometry practice within a certain time frame and distance of the company’s store if he either defaulted on his contractual obligations or elected not to accept an offer by it to renew the existing contract. The company elected not to renew an existing contract, which was not a condition that activated the non-competition agreement, and thus it was not enforceable against him.
Lenscrafters, Inc., v. Kehoe, 2012-NMSC-020, (NMSC, 6/14/12); http://www.nmcompcomm.us/nmcases/NMSC/2012/12sc-020.pdf [enhanced lexis.com version].
Daniels, Justice:
{1} We granted certiorari to review a Memorandum Opinion of the Court of Appeals and to address four issues stemming from a lawsuit by LensCrafters to enforce a noncompete provision against optometrist Dennis Kehoe after a sublease contract between the two parties ended. Having reviewed the record in this complex, convoluted, and contentious eleven-year dispute, we hold that (1) the district court properly dismissed LensCrafters’ breach of contract claim on summary judgment because LensCrafters terminated the parties’ contract as a matter of law and, with it, the contract’s noncompete provision; (2) the district court did not abuse its discretion when it denied Kehoe’s request to supplement his pleadings shortly before trial; and (3) summary judgment dismissing Kehoe’s malicious abuse of process and tortious interference with contract counterclaims was proper because Kehoe did not demonstrate genuine issues of material fact. Because we hold that the noncompete provision was not in effect during any relevant time, we do not need to address Kehoe’s fourth issue, whether the provision would have been contrary to public policy. Accordingly, we affirm the Memorandum Opinion of the Court of Appeals in part and reverse in part.
NMHRA: The New Mexico Human Rights Act, public sector employee, constitutional right to protection of property right in a job; New Mexico Personnel Act (NM PA), NMSA 1978, §§ 10-9-1 to -25 (1961, as amended through 2009), probationary status and termination; employment at will, employment terminated, NMHRA action may be brought sex and age discrimination regardless of the provisions of the Personnel Act
Controlling law. Summary judgment ordered in favor of the state agency by the trial judge was reversed because the rights granted by the NM HRA are not superseded the NM PA.
Because this case so well illustrates the application of persuasive authority from one jurisdiction to another, significant portions of the legal reasoning are quoted here – though federal law does not control in our state jurisdiction, very often one court will borrow from the sound reasoning of another court. Also, as previously mentioned in this collection, there is a very strong tendency of courts to fashion law in a manner that provides consistency across the various jurisdictions. That’s fortunate for those of us dealing with all of the various laws because we don’t have to keep track of a diverse set of requirements, responsibilities and rights.
Rodriguez v. New Mexico Department of Workforce Solutions, 2012-NMCA-059 (4/29/17), certiorari not applied for [and therefore this is a final judgment]; http://www.nmcompcomm.us/nmcases/NMCA/2012/12ca-059.pdf; or locate in http://www.nmcompcomm.us/nmcases/NMARYear.aspx?db=car&y1=2012&y2=2012 [enhanced lexis.com version].
Jonathan B. Sutin, Judge:

{1} This appeal pits the New Mexico Personnel Act against the New Mexico Human Rights Act on the question of which law is controlling when a discharged probationary state employee with no property interest in continuing employment seeks relief under the Human Rights Act for sex and age discrimination. The district court dismissed the employee’s Human Rights Act claim on the ground that, under the Personnel Act, the State agency was permitted to terminate the probationary employee’s employment without cause even if the termination was based on sex or age discrimination. We disagree and hold that the employee can pursue a claim under the Human Rights Act.


* * *
{14} The Human Rights Act, like its federal analog, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (1991), was “designed to encourage employees to report when they or others are being subjected to illegal workplace discrimination[.]” Mitchell v. Zia Park, LLC, No. CV 10-1206 WPL/GBW, 2012 WL 310824, at *1, *9, __ F.2d__ (D.N.M. Feb. 1, 2012). Owing to the similarities between the Human Rights Act and Title VII, our Supreme Court has noted that our analysis of claims under the Human Rights Act is guided by the federal courts’ interpretation of unlawful discrimination under Title VII. Garcia-Montoya v. State Treasurer’s Office, 2001-NMSC-003, ¶ 39, 130 N.M. 25, 16 P.3d 1084. {15} We are guided by two federal cases in which the plaintiffs, who lacked a property interest in employment, filed complaints alleging violations of both § 1983 and Title VII. See Walters v. City of Atlanta, 803 F.2d 1135 (11th Cir. 1986); Henderson v. City of New York, 818 F. Supp. 2d 573 (E.D.N.Y. July 20, 2011). In each case, the respective courts determined that the plaintiff’s § 1983 claim could not stand because the plaintiffs had no property interest in the employment, however, in each case, the court permitted the plaintiff’s Title VII claim. See Walters, 803 F.2d at 1140, 1142, 1144-45 (stating that because the plaintiff did not have a property interest in the employment that he sought to obtain, the district court properly granted the defendants’ motion for directed verdict on the plaintiff’s § 1983 claim and also holding that the district court properly found that the plaintiff prevailed on his Title VII discrimination and retaliation claims); Henderson, 818 F. Supp. 2d at 575-78, 583- 84 (explaining that the plaintiff, who was a probationary employee when he retired (which he claimed was a “constructive discharge”), unlike a permanent employee he had no property interest in his position and therefore could not establish a § 1983 claim, and further, denying the defendant’s motion for summary judgment on the plaintiff’s Title VII retaliation claim, as well as the claims under the state’s and city’s human rights acts).
{16} Furthermore, we cannot give the Personnel Act an enforcement status superior to the exceptionally important public policy against discrimination set out in the Human Rights Act. We will not lend credence to a view that a probationary state employee can be discharged based on the employee’s sex or age. See Bottijliso v. Hutchison Fruit Co., 96 N.M. 789, 792, 635 P.3d 992, 995 (Ct. App. 1981) (stating that under the doctrine of abusive discharge, “implied by operation of law as an additional condition of the contract similar to the restrictions imposed by the Equal Employment Opportunity provisions of the Civil Rights Act of 1964 . . . the interest of the employer in the exercise of his unfettered right to terminate the employee under a contract at will is balanced against the interest of the community in upholding its laws in public policy”), overruled on other grounds by Boudar v. E.G. & G., Inc., 105 N.M. 151, 730 P.2d 454 (1986); see also Been v. N.M. Dep’t of Info. 815 F. Supp. 2d 1222, 1236 n.5 (D.N.M. 2011) (stating that, in the face of the defendant’s argument that the plaintiff was a probationer under the Personnel Act, “[a]lthough an employee at will may be terminated without cause, she is still entitled to the protections of Title VII and the [Human Rights Act]”); Vigil v. Arzola, 102 N.M. 682, 688-89, 699 P.2d 613, 619-20 (Ct. App. 1983) (stating that “a cause of action should exist when the discharge of an employee contravenes some clear mandate of public policy” and that the Human Rights Act falls within the category of “clearly mandated public policy” (internal quotation marks and citation omitted)), overruled on other grounds by Chavez v. Manville Prods. Corp., 108 N.M. 643, 777 P.2d 371 (1989). The Human Rights Act forbids an employer to discriminate against “any person otherwise qualified[.]” Section 28-1-7(A).
{17} We hold that the district court erred in concluding that, owing to Plaintiff’s status as a probationary employee under the Personnel Act, her claim under the Human Rights Act could not stand because the Department “was permitted to terminate [her] employment without cause[.]” On remand, the district court shall determine whether Plaintiff can establish a prima facie case of discrimination and retaliation pursuant to the Human Rights Act and proceed under the analytical framework as discussed in Garcia-Montoya, 2001-NMSC-003, ¶ 39, and Juneau v. Intel Corp., 2006-NMSC-002, ¶¶ 9, 23, 139 N.M. 12, 127 P.3d 548, to resolve the claims on their merit.

National Labor Relations Act, Section 8(a)(1) violation, employer leaflet opposing unionization was distributed to customers; National Labor Relations Board (NLRB)


Controlling law. A grocery store violated Section 8(a)(1) of the Act when it required its employees to distribute $5 store coupons to customers with an apology for union protest activity near its front entrance and information countering the union’s claims.
Tesco PLC d/b/a Fresh & Easy Neighborhood Market, Inc., 358 NLRB No. 65 (NLRB, 6/25/12); http://www.nlrb.gov/case/31-CA-029913; http://www.laborrelationscounsel.com/Fresh%26EasyNLRBDecision.pdf [enhanced lexis.com version].
The union presented the operator of a chain of grocery stores with a petition. It was allegedly signed by a majority of employees and stated that the employees wanted to be recognized by the union. The employer declined to voluntarily recognize the union and distributed the store coupon leaflet.
Instead of filing a petition for a secret ballot election, the union began distributing leaflets near the employer’s front entrance stating, in part, “[d]espite repeated requests from workers, Fresh & Easy has never recognized a union of their workers – instead choosing to fight their employees as they try to form a union.” Customers were upset by the union protest activity and complained to store management, and the employer responded with a customer flyer that contained a $5 store coupon and read, in part:


  • The protesters are not our employees and have been hired by the United Food & Commercial Workers (UFCW) union.



  • The UFCW wants fresh&easy [sic] to unionize.



  • We’ve told the UFCW this is a decision only our employees can make. They have not made this choice.



  • We offer good pay as well as comprehensive, affordable benefits to all our employees.



  • We take pride in being a great place to work.

The employer ordered its employees to personally hand the coupons to customers or stick them in the customers’ bags, as they did with other store flyers. Two employees complained about this, one of whom claimed the flyer was “lying to customers.”


Alleging an unfair labor practice charge that the employer violated Section 8(a)(1) of the Act - requiring employees distribute the coupon flyer to customers - the matter was heard by an Administrative Law Judge, who analyzed the language in the coupon flyer, determined that it “did not express a position on unionization” and dismissed the allegation.
The National Labor Relations Board disagreed and ruled that the company’s actions violated Section 8(a)(1) on these grounds:

  • “employees reasonably would have perceived the flyer to be a component of the [employer’s] campaign against union representation”,

  • two employees protested distributing the coupon flyer, which confirmed the Board’s conclusion that it was campaign material, and

  • the flyer contained misrepresentations, most notably the statement that employees had not chosen to unionize.

Thus, the NLRB concluded that the petition allegedly signed by a majority of employees was sufficient evidence that employees had authorized the union to represent them, and therefore was protected by § 8(a)(1).independent contractor or employee, “economic reality” test
Illustrative; not controlling law. This is a good review of the applicable reasoning.
Martin v. Spring Break ‘83 Productions, L.L.C., No. 11-30671 (5th Cir., 7/24/12); http://www.ca5.uscourts.gov/opinions/pub/11/11-30671-CV0.wpd.pdf [enhanced lexis.com version].
The district court concluded that the evidence, even when viewed in the light most favorable to the Appellants, did “not suggest that Plaintiffs depended upon the individual Defendants or that any of these Defendants could independently exercise control over the work situation”, and the 5th Circuit Court of Appeals affirmed:
We apply an “economic reality” test to determine whether an individual or entity is an employer for the purposes of the FLSA. * * * “To determine whether an individual or entity is an employer, the court considers whether the alleged employer: ‘(1) possessed the power to hire and fire employees; (2) supervised or controlled employee work schedules or conditions of employment; (3) determined the rate or method of payment; and (4) maintained employee records.’”
Title VII: Federal Rules of Civil Procedure, McDonnell Douglas, pleading discriminatory bias
Illustrative; not controlling law. Primarily of interest to litigators, this 6th Circuit case revived a race discrimination suit filed by a former employee of Humana Inc. on behalf of a class of employees. It ruled that a Title VII plaintiff need not allege a prima facie case of discrimination in order to satisfy federal pleading because a Title VII plaintiff cannot be required to meet heightened pleading criteria beyond those required by the Federal Rules of Civil Procedure, and that the McDonnell Douglas prima facie case "is an evidentiary standard, not a pleading requirement."
ERISA: § 502(a)(3); liability, equitable estoppel; damages, surcharge
Illustrative; not controlling law. The 4th Circuit recognized these legal doctrines as possible methods for awarding “make whole” relief under ERISA Section 502(a)(3).
McCravy v. Metropolitan Life Insurance Company, Nos. 10–1074, 10–1131 (4th Cir., 5/16/11); http://federal-circuits.vlex.com/vid/mccravy-metropolitan-life-insurance-276658247 [enhanced lexis.com version].
The court held that, if applicable, equitable estoppel and a surcharge would allow an alleged possible beneficiary of a life insurance policy to recover the full amount of the policy proceeds, rather than only a premium refund if she proved that the plan administrator led her to believe inaccurately that she had coverage

lactation [breastfeeding] policy, adverse employment action, retaliation


Illustrative; not controlling law. A federal trial court in the district of Iowa ruled in favor of a nursing mother against whom the employer had taken an adverse employment action for complaining about not providing a private place to breast feed her baby.
Salz v. Casey’s Mktg. Co., No. 11-cv-3055 (N.D. IA, 7/19/12); http://op.bna.com/dlrcases.nsf/id/ldue-8wcmsv/$File/Salz%20v.%20Casey.pdf [enhanced lexis.com version].

pattern or practice; litigation hold order on electronic and other evidence


Illustrative; not controlling law. This is a reminder of important litigation factors by the 2nd Circuit.
Chin v. Port Authority of New York & New Jersey, Nos. 10-1904-cv(L), 10-2031-cv(XAP) (2nd Cir., 7/1012); ; http://www.ca2.uscourts.gov/decisions/isysquery/9ba9efcd-8c79-490a-811b-a43e84d75ac6/1/doc/10-1904_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/9ba9efcd-8c79-490a-811b-a43e84d75ac6/1/hilite/;

2012 U.S. App. LEXIS 14088 [enhanced lexis.com version]


The two key holdings involved required in individual discrimination cases and litigation hold were:

  1. Private plaintiffs may not use the “pattern or practice” method of proving discrimination outside the class action context. Note that in most discrimination cases where the ultimate burden of proof is always with the plaintiff and the plaintiff must present a prima facie case of discrimination, under a pattern or practice method of proof the plaintiff is only required to prove the existence of an employer's discriminatory policy and then the burden of proof shifts to the employer to demonstrate that it did not discriminate against the plaintiff pursuant to that policy.

  2. Here can be the possible consequences of an employer's failure to issue a litigation hold to preserve evidence once it was on notice of potential litigation. The Second Circuit held that a "case by case" approach to the failure to produce evidence must be applied and affirmed the trial court's refusal to issue an adverse inference instruction – despite an admitted loss of evidence. [Essentially, such a jury instruction states that if evidence is missing that had been required to be preserved, the jury my infer that it was unfavorable to the party that failed to preserve it. For more information, see this example, as well as others online, http://www.nixonpeabody.com/116986.]

Harassment: hostile work environment, prompt action, adequate investigation; $2.1M award


Illustrative; not controlling law. Prompt action and adequate investigation of misconduct are critical when harassment has been reported [or becomes known]. In this case the West Virginia Supreme Court affirmed the $2.1M jury verdict.
CSX Transportation v. Smith, (S.C.W.Va., 6/7/12); Justicia cite at http://law.justia.com/cases/west-virginia/supreme-court/2012/11-0694-0.html; 2012 W.Va. LEXIS 296 [enhanced lexis.com version].
Angela Smith, a CSX female trainmaster, alleged that a co-worker made derogatory comments about her sexual orientation, which she reported to her employer. Subsequently, someone (presumably the same co-worker) pounded on her front door and yelled, “Come out b****. . . . You cost me my job [sic] and I am going to get you, come on out.” Following this almost daily threatening calls at her house from an anonymous caller would say, for example, “I’m not finished with you” and “Watch your back. I’m going to get you.”
She alleged that:

  • Her employer failed to question the co-worker about the off-site conduct, and, though it demoted the co-worker based on the overheard derogatory comments, it allowed him to use his union seniority status to transfer to a position where he would report directly to her.

  • The employer declined Smith’s request for a transfer away from the co-worker and eventually put Smith on administrative leave “out of a concern for her safety and corresponding fear of what actions, if any, [the co-worker] might take in retaliation for being demoted.”

In affirming the jury award, the Supreme Court of Appeals of West Virginia affirmed the award because the “cumulative effect” of the co-worker’s misconduct and the employer’s responses was sufficient to support the jury verdict and award of compensatory and punitive damages.


Title VII: harassment, nature and extent, context, severe, pervasive
Illustrative; not controlling law. Use of a gender specific word was held not to automatically amount to gender harassment. Context is essential, and this case illustrates the importance of investigating the entire situation of any alleged verbal harassment, because the speaker’s demeanor, intent, manner of delivery, tone, and the surrounding context determine whether the use of a gender-specific term supports a claim for sexual harassment. As you read this case, it ought to be apparent that the behavior of the supervisor was unacceptable and unprofessional.
Passananti v. Cook County, No. 11–1182 (7th Cir., 7/2012); http://www.ca7.uscourts.gov/tmp/KB0O1NYA.pdf; [enhanced lexis.com version].
Passananti alleged:

  • Her supervisor repeatedly and angrily called her “bitch,” (often preceded by other words like “lying,” “stupid,” and “f---ing”) and belittling her in front of her co-workers.

He also trumped up charges against her by claiming that she tampered with an inmate’s urine, and falsely accused her of having sexual relations with another inmatedecision:

A reasonable jury could find harassment based on the supervisor’s conduct and the context in which he called Passananti a “bitch.” Specifically, the facts as alleged, showed:



  • Her supervisor repeatedly used the term in a demeaning context—while yelling at her and angrily criticizing her in front of other employees. For example, he was overheard to demand, “what is that f---ing bitch doing in here this time?” and “you better instruct that F’n bitch to dress appropriately.”

  • Similarly, when Passananti denied his accusation that she tampered with an inmate’s urine, he screamed at her to “shut the ‘F’ up, you lying ‘B’.” Because the supervisor allegedly used the term in an evidently hostile and demeaning manner, the Seventh Circuit held that these facts, by themselves, supported Passananti’s sexual harassment claim.

However, the appellate court cited and reaffirmed previous cases that held that the repeated use of “bitch” in the workplace does not automatically constitute sexual harassment. It said that although “bitch” is an inherently gendered term, it does not necessarily mean that the word is being used to target someone because of his or her gender.

settlement without court supervision



Illustrative; not controlling law. Some circuits hold that settlements must be approved by a court, and others do not. The 5th Circuit held in this case that court approval was not required.
Martin, et al v. Spring Break '83 Prodn, L.L.C, No. 11-30671 (5th Cir. 7/24/12); http://www.ca7.uscourts.gov/tmp/KB0O1NYA.pdf [enhanced lexis.com version].
A dispute over time worked by the lighting and rigging technicians on that now famous film, Spring Break '83, the production company and the union reached an agreement, money was paid and accepted, but then a law suit was filed. The two issues were:

  1. The individuals who had brought the suit had not signed the settlement agreement. However, the court found the union was their authorized representative.

  2. They also contended that the settlement was not permitted under the terms of the FLSA, because it was not approved by a court or the DOL. The Court found that this was not the type of case where that prohibition applies, because it was not a challenge to substantive FLSA rights, but merely settlement of a disputed liability.


ADA: successor corporation need not continue predecessor’s accommodations, not a qualified individual with a disability [QIWAD]
Illustrative; not controlling law. This reasoning of the U.S. District Court for the Northern District of Georgia might provide some valuable insights to consider. It held that a successor employer lawfully refused to continue granting an accommodation made by its predecessor. A reasonable accommodation is not necessarily valid forever. a reasonable accommodation is not set in stone. An employer has the right and flexibility to react to changing circumstances in the workplace. The lesson here is that employers ought to periodically re-evaluate accommodations made to employees to ensure they remain feasible and appropriate.
Equal Employment Opportunity Commission v. Eckerd Corporation d/b/a Rite Aid, Civil Action No. 1:10-cv-2816-JEC (7/9/12, U.S.D.C. N.D. GA Atlanta Division); http://scholar.google.com/scholar_case?case=2314579780633042749&q=equal+employment+opportunity+commission+v.+eckerd+corporation&hl=en&as_sdt=2,14 [enhanced lexis.com version].
Background:

  • Fern Strickland had worked for Eckerd for many years:

  • 2001 - she was diagnosed with osteoarthritis in both of her knees, which prevented her from standing for long periods of time.

  • Her store manager approved allowing her to intermittently sit in a chair to relieve the pain in her knees.

  • 2007 - Rite Aid bought the Eckerd Corporation and acquired the store where Strickland worked.

  • Rite Aid streamlined its payroll by staffing each store with only one or two cashiers and one manager or supervisor.

  • It also then began requiring its cashiers to work productively on the sales floor when there was no customer at the register, to assist with unloading trucks, regularly stock the shelves, clean the store, conduct inventory, and work in the photo lab.

  • At that time her store manager continued to allow her to sit intermittently.

  • Less than a year later, during a visit to the store Rite Aid District managers observed Strickland sitting on the job.

  • Learning that the store manager had allowed her to do that, it reviewed her file and discovered a doctor’s note from January of 2007 vaguely stating that she needed a stool or chair at work.

  • Because that note was not specific and was more than a year old, Rite Aid requested a new note from her doctor.

  • It also reviewed videotape and estimated that she spent half of her time at work sitting down.

  • Her doctor submitted a new note that stated she had to spend 30 minutes out of every hour sitting down.

  • Rite Aid decided this restriction was an undue hardship and asked her doctor to provide an alternate accommodation, but he never responded.

  • Rite Aid eventually terminated her, and the EEOC filed a lawsuit on her behalf, alleging that Rite Aid failed to provide a reasonable accommodation and terminated Strickland because of her disability.


District Court action:

  • It granted Rite Aid’s motion for summary judgment on the grounds that she was not a “qualified individual” with a disability because she could not perform the essential functions of the job with or without a reasonable accommodation because she could not work productively on the sales floor if she spent half of her time sitting in a chair, i.e., the sitting accommodation would eliminate many of the essential functions of her job.

  • The EEOC argued that because the store allowed her to sit down for eight years, the additional job duties could not be essential, and furthermore, the employer’s actions gave Strickland a right to the accommodation. That contention was rejected on the grounds that an employer who voluntarily accommodates an employee does not concede that a job function is unessential by temporarily removing the function from the disabled employee’s duties. Further, it also found that an employer’s willingness to provide a certain accommodation does not establish that the accommodation is reasonable or required.

ADA: Justice Department Releases New ADA Guidance on the Rights of Persons with HIV/AIDS: http://www.brgslaw.com/compliance_matters/2012_1_jul/index.html.


FMLA: DOL publishes its "plain language" explanation and guidebook for the FMLA: http://www.employmentlawmatters.net/2012/07/articles/fmla/dol-publishes-its-plain-language-explanation-and-guidebook-for-the-fmla/.
FMLA: supervisor, comments, interference, reduction in force, suspicious timing, disparate treatment; retaliation
Drew v. Quest Diagnostics, Inc., No. 1:10-CV-00907 (U.S.D.C. S.D, OH, W.DIV); http://www.fmlainsights.com/drew%20v%20quest%20diag.pdf; and an article with helpful advice at http://www.fmlainsights.com/interference/supervisors-comments-after-employee-seeks-leave-for-hysterectomy-creates-viable-fmla-claims/ [enhanced lexis.com version].

judgment reversed and the case will continue on to trial before a jury:



  • Brenda Drew, an excellent employee of Quest Diagnostics for 15 years told her supervisor at that she would need a leave of absence to undergo a hysterectomy, and.

  • the supervisor allegedly said it's "not a good time to take leave," and advised employee to read the book titled, No More Hysterectomies.

  • While on FMLA leave she learned that her domestic partner had cancer.

  • Shortly thereafter, and while still on FMLA leave, a Quest Human Resources staff HR generalist informed her that she would be terminated in a reduction-in-force after Quest lost a significant client contract, and

  • then continued talking, suggesting that the termination might be a "blessing in disguise," as she would have more time to take care of her partner, and that, in any event, Drew "would not be able to give 100% to her job anyway."

  • In addition to this, the trial court found that the manner in which Quest chose employees to be terminated as part of the RIF had problems - Drew pointed out that discipline issued to another employee was not used as part of the objective criteria of the RIF, but discipline issued to Drew was one of the factors in her dismissal. That evidence of disparate treatment created doubt about Quest's explanation that it chose employees for the RIF based on performance evaluations and discipline.

CFAA: litigation, pleading requirements, former employee copying trade secrets


Illustrative: not controlling law. Litigators may want to check this case from a federal district trial court in Seattle. The reasoning is helpful and persuasive.
Del Vecchio v. Amazon.com, Inc., No. C11-cv-00366-RSL; http://www.unfaircompetitiontradesecretscounsel.com/DelVecchioVsAmazon.pdf [enhanced lexis.com version]; and helpful article at http://www.unfaircompetitiontradesecretscounsel.com/federal-law/computer-fraud-abuse-act/washington-court-clarifies-pleading-requirements-for-cfaa-claims/.
ADA: qualified, perform essential function, accommodation; evidence, McDonnell Douglas test; summary judgment
Controlling law. There were two major issues:

  • Did the plaintiff establish an essential element of her case, that she was qualified—with or without accommodation—to perform an essential function of her job as a “performer” in her employer’s store?

  • Did the plaintiff prove her retaliation claim? No, because she offered no evidence that her employer’s legitimate, non-discriminatory reasons were pretextual.

The trial court’s dismissal by order of summary judgment was affirmed.
Equal Employment Opportunity Commission v. The Picture People, Inc., No. 11-1306 (10th Cir., 7/10/12); http://www.ca10.uscourts.gov/opinions/11/11-1306.pdf [enhanced lexis.com version].
The decision sets out four to five pages of detailed facts about the inability of the congenitally and profoundly deaf employee to perform essential functions of the job. She had a number of communication skills, but not enough of the necessary ones to be proficient enough to perform those that the job required. Therefore, rather than duplicate the appellate court’s recitation of the many pages of facts, reading the actual opinion is recommended.

Title VII: harassment, hostile work environment, “prompt and effective remedial action”; failure of evidence that offensive behavior persisted; retaliation, Burlington Northern standard, disparate treatment


Controlling law. As with the case of The Picture People, Inc., the facts extend over five to six page of separate short paragraphs, so reading the actual opinion rather than essentially copying them into bullet point in a brief would be an unnecessary duplication of effort.
Bertsch v. Overstock.com, No. 11-4128 (10th Cir., 7/10/12); http://www.ca10.uscourts.gov/opinions/11/11-4128.pdf [enhanced lexis.com version].
Essentially, the problem was with offensive sexually explicit materials, misogynistic (“male-chauvinistic”) comments, and the effect of recognition and apology by the perpetrator, and how effective corrective actions were by the employer. The district court’s judgment dismissing the hostile work environment sexual harassment claim and denying leave to amend is affirmed; it is reversed insofar as it dismisses the retaliation claim.

: overtime, exemption, incorrect jury instruction on burden of proof


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