Human resources & employment law cumulative case briefs

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  retaliation for exercising his FMLA rights,
  
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  interference with those rights by failure to restore him to his position following FMLA leave.
  

Once again, adequately utilized policies and practices of publicizing and training in policies; warning and counseling about deficiencies and properly documenting that process, and having a valid business purpose for taking an adverse employment action resulted in success for the employer.

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  During maintenance operations, normal factory lighting was turned off, but some degree of lighting came from skylights, fluorescent lights, open doors and Peterson’s forklift headlights. Nonetheless he once again struck a pole, causing batteries to fall, break and spill acid.
  
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  He also struck his head on the forklift’s protective rack, which injured his head, neck and back.
  
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  His supervisor took him to the hospital, where he received stitches to his head and was released, and then Exide placed him on FMLA leave and workers’ compensation leave and benefits [most likely running concurrently with FMLA, which is a typical good practice].
  
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  His supervisor investigated the incident and is report concluded Peterson was “going rather fast.”
  
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  Exide’s Human Resources Manager reviewed the incident further to determine what corrective action or adverse employment action, if any, might be appropriate. He found three written warnings on file, among which were incidents of:
  
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    unauthorized use of machinery,
    

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  c areless handling of material that caused damage to batteries,
  
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  unspecified health and safety violations,
  
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  collision of forklift with a pole the year before,
  
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  the month before his termination, Plaintiff had received a “Performance Expectations” memo, which noted areas for improvement including “[m]ust follow all safety rules at all times” and “[m]ust drive under control at all times, including maintaining a safe speed.”
  
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  Also in April 2007, Plaintiff’s supervisor completed a “Performance Expectations Review,” noting that Plaintiff had moved to a different department before his final performance review. In the memo, his supervisor said:
  

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  Based on this collection of deficiencies, Peterson was notified of the adverse employment action of terminating his employment.
  

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   retaliation for exercising his FMLA rights,
   
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   interference with those right, and
   
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   failure to restore him to his position following FMLA leave.
   

There is a three-step evidentiary proof process base sometimes conveniently referred to as McDonnell Douglas, as our federal appellate court did in this case [edited slightly for easier reading]:

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   if the plaintiff makes out a prima facie retaliation case,
   
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   the burden shifts to Defendant to demonstrate “a.” If Defendant meets this burden,
   
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   the burden shifts back to Plaintiff to “show that there is a genuine dispute of material fact as to whether defendant’s explanations for terminating plaintiff’s employment are pretextual”, and that burden can be met by showing “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence.”
   

Exide conceded the first factor, and for the second factor argued that its legitimate, nonretaliatory reason for deciding to fire him was because of his unsafe performance of his job – as described above. That shifted the burden back to Peterson, and he contended:

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   The employer failed to follow each step of its progressive discipline policy before firing him:
   
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      that he receive a first written warning,
      
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      a second written warning,
      
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      indefinite suspension, and
      
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      then discharge.
      
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      He also contended that the policy didn’t allow Exide to consider violations older than one year when deciding on corrective or adverse action.
      

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   His next attempt was that the employer created dangerous conditions during its lighting maintenance activities, and the court was not impressed because his path was lighted but skylights, fluorescent lights and headlights.
   
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   However, what is important to employers and practitioners on the issues of retaliation ad pretext is whether the employer:
   
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      reasonably believed at the time of its decision that he had violated company policy, and
      
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      acted then in good faith on that belief – not whether the decision was wise, fair or correct.
      

Law: Section 3 of the Defense of Marriage Act (DOMA) held unconstitutional, denial of equal protection under the law, Spending Clause, Tenth Amendment, Fourteenth Amendment, applicable constitutional analytical classifications and levels of constitutional scrutiny, federalism, state’s rights, limits on federal authority; rulings on hold pending further appellate considerations and action

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  A group of gay couples in Massachusetts (where gay marriage is legal under state law) sued the federal government.
  
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  The state of Massachusetts filed its own suit, contending DOMA makes its Medicaid program illegal because the state combines gay married couples' incomes in calculating eligibility.
  

initial paragraph by the appellate court by Circuit Court Judge Boudin [and numerous paragraphs follow]:

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   Bones did not establish a prima facie case of retaliatory discharge in violation of Kansas state law;
   
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   Bones' violation of Honeywell's attendance policy was a legitimate, non-retaliatory reason for Bones' discharge;
   
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   Bones did not provide the proper notice for leave under the FMLA;
   
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   Honeywell would have dismissed Bones regardless of her request for an FMLA leave because she failed to comply with its notification of absence policy;
   
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   Bones is not disabled within the meaning of the ADA;
   
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   Bones did not establish a prima facie case of retaliation under the ADA;  and
   
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   Bones' violation of Honeywell's attendance policy was a legitimate, non-retaliatory reason for Bones' termination, and such a reason was not pretext for retaliation in violation of the ADA.
   

“[u]nsubstantiated allegations carry no probative weight in summary judgment proceedings”; thus, to defeat a motion for summary judgment, “evidence, including testimony, must be based on more than mere speculation, conjecture, or surmise.” Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875–76 (10th Cir. 2004) (finding that plaintiff’s own speculation was not sufficient to defeat summary judgment); see also Hester v. BIC Corp., 225 F.3d 178, 185 (2d

Cir. 2000) (finding that “in an employment discrimination action, Rule 701(b) bars lay opinion testimony that amounts to a naked speculation concerning the motivation for a defendant’s adverse employment decision”
Privacy: social media, “shoulder surfing”, issue of coerced access to employee's Facebook posts; invasion of privacy, NJ Wiretapping Statute, federal Stored Communications Act (SCA)
Illustrative; not controlling law. As this area of employment law evolves, analyzing various cases may assist us in determining what might be persuasive reasoning for our NM and 10^th Circuit jurisdiction. This is a New Jersey state trial court case, so it has limited binding authority, but every little bit helps as we grope our way through this tangled set of concepts with the tension of how much privacy to grant balanced against an employer’s need to know certain things about prospective employees and current employees, such as:

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  employee privacy
  
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  NLRA protected comment and concerted activity
  
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  workplace safety
  
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  fiscal safety
  
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  trade disparagement
  
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  trade secrets and confidentiality
  
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  validity of employee claims against the employer
  
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  comments that might adversely reflect on the employer
  
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  . . . and many more concerns
  

First of all, “shoulder surfing” means an employer requires a perspective employee or a current employee (a “poster”) to log on to his or her social media site and then be ordered by the company employee to direct that person to call up whatever the company might want to look at.

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  an employer looking online at what has been publicly posted rather than
  
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  what has been set by the poster as private and restricted access.
  

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  Deborah Ehling is a registered nurse and a paramedic who worked for Monmouth Ocean Hospital Service Corp., a non-profit hospital corporation.
  
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  She was in union leadership.
  
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  She alleged Monmouth engaged in a pattern of retaliatory conduct against her based on her activities and statements.
  
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  She apparently maintained a Facebook account and was careful not to “friend” Monmouth management, although she was friends with many of her coworkers.
  
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  In 2009 she posted comments about an incident in which an eighty-eight year old white supremacist opened fire at the Holocaust Museum in Washington, D.C., was wounded, and survived. She wrote:
  
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    I want to say 2 things to the DC medics.
    
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      1. WHAT WERE YOU THINKING? And . . .
      
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      2. This was your opportunity to really make a difference. WTF!!!
      
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    And to the other guards….go to target practice.
    
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  Monmouth’s management did not have access to her Facebook post, but it requested asked another Monmouth employee to make her go online to her profile and posts while “in [a] supervisor’s presence” [hence, the shoulder surfing].
  
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  Consequently, because of that and other allegedly retaliatory action by Monmouth, she sued on a variety of claims against Monmouth.
  
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  Monmouth filed a motion to dismiss two counts in her complaint:
  
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    the claim under New Jersey’s wiretapping and eavesdropping statute and
    
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    the one for invasion of privacy.
    

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  NJ Wiretapping Statute:
  
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    Dismissed because New Jersey courts have construed the definition of “electronic storage” to cover only those messages that are “in the course of transmission or are backup to that course of transmission”.
    
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    NJ case law interprets the statute not to cover communications that already have been received and are in “post-transmission storage” because they were not intercepted while "in transmission".
    
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  Invasion of Privacy: The critical issue is whether she had a “reasonable expectation of privacy” about her Facebook postings under NJ law:
  
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    The two essential elements of proof are:
    

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   Monmouth intruded on her solitude, seclusion or private affairs and
   
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   the intrusion would be highly offensive to a reasonable person.
   

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  The trial court noted that privacy for social networking posts is an “emerging, but underdeveloped” area of the law.
  
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  The “spectrum of cases” is broad [see my comment above] :
  
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    at one end there is clearly no expectation of privacy in material posted to an unprotected site that is accessible by anyone, and
    
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  at the other end courts have recognized an expectation of privacy for password-protected on-line communications.
  
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  Because there is no consistent approach for cases in between the two ends, , such as when someone makes statements to a “limited group” of people, such as their Facebook friends, these cases should be resolved on a case-by-case basis and the court concludes that plaintiff states a plausible claim for invasion of privacy.
  
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  The federal Stored Communications Act (SCA): This issue is unclear, and
  

About the best one can do is to recognize at least the factors outlined above under the introductory paragraph, plus, as always, being able to articulate a valid, legitimate business purpose for needing any such information, having consulted with competent legal counsel, having clear written notification in the application process and having provided the same to current employees, and things of that nature. This indicates that an employer recognizes its legal duties and rights, the employee’s legal rights and responsibilities, the need for fairness to all concerned, and above all – the employer wasn’t just snooping.]

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  hired,
  
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  became pregnant while single (not caused by the school),
  
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  married,
  
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  fired, and
  
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  sued.
  

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  Filed a charge of discrimination with the Equal Employment with EEOC
  
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  Received a right-to-sue letter on May 4, 2010.
  
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  Sued in federal district court against Southland asserting a claim of pregnancy discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e(k), 2000e-2(a)(1)–(2), and state law claims of marital status discrimination and invasion of privacy. After discovery Southland moved for summary judgment on all three claims. The trial court granted Southland’s motion on all three claims.
  
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  On appeal, The Eleventh Circuit ruled that despite some evidence of religious motivation for the termination, the teacher’s claim should be decided by a jury because there was enough circumstantial evidence to raise a reasonable inference of pregnancy discrimination. Specifically:
  
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    upon learning of the pregnancy (and before the school administrator learned that the situation involved a premarital conception), the administrator allegedly said that the school had “feared something like this would happen.”
    
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    After learning it was a premarital pregnancy, the administrator was reportedly upset about both the premarital nature of the pregnancy and the need to find a replacement for the teacher.
    
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    Although the administrator testified that he would not have fired the teacher if she had apologized for sinning, the teacher testified that she had apologized and had told the administrator that she was remorseful and contrite for her sins.
    
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    Based on this evidence, it held that a jury could reasonably conclude that the school had actually fired Hamilton because she became pregnant, rather than because of the premarital pregnancy, and thus the case could proceed to trial.
    

FLSA: April 2011 tipping regulation effective 5/5/11, explanatory case and article