Human resources & employment law cumulative case briefs

Computers have become an indispensable part of our daily lives. We use them for work; we use them for play. Sometimes we use them for play at work. Many employers have adopted policies prohibiting the use of work computers for nonbusiness purposes. Does an employee who violates such a policy commit a federal crime? How about someone who violates the terms of service of a social networking website? This depends on how broadly we read the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030.

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  In 2004 Sabourin became a program manager with the Department of Environmental Health and Safety (EHS) of the University of Utah.
  
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  In April 2006, his supervisor, Marty Shaub, requested the University’s internal audit department to review EHS’s administrative practices.
  
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  The draft report indicating potentially “systematic problems” within the program, and Shaub asked him to prepare a response “as quickly and as efficiently as possible.”
  
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  As weeks passed, Shaub became concerned that she had not received the requested draft response, plus Sabourin had become defensive when Shaub asked for updates.
  
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  Shaub sent an email on May 31 to the University’s human resources department stating her intention to “impose a reduction in force” that would eliminate Sabourin’s position because of a depletion in grant money.
  
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  Coincidentally with Shaub’s preparation for a reduction in force, Sabourin requested FMLA leave for childcare necessities, and that FMLA leave was approved.
  
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  During subsequent weeks, problems between Shaub and Sabourin concerning the audit report persisted, and Shaub terminated Sabourin’s employment, and the termination letter listed a number of reasons for that adverse employment action, including, among other things:
  
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    failure to comply with university policies,
    
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    late work, and
    
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    non-responsiveness to requests for to be performed; and
    
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    it also contended that the University could suffer a loss of more than $350,000 from his actions and inactions that obstructed the audit.
    

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   teamwork,
   
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   face-to-face interaction with patients and their families, and
   
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   working with complex medical equipment.
   

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   Denied the employer’s “honest belief” jury instruction to the jury.
   
   1. 
      For this to apply, an employer's disciplinary decision is not pretextual if the decision was based on an “honest belief” that the employee engaged in misconduct, and if an employer terminates an employee based on particularized information, it will not be liable if the information in its possession later turns out to be incorrect.
      
   2. 
      If the employer was acting on an “honest belief” at the time of the adverse employment action that the employee engaged in misconduct, then the employer's decision is valid.
      
   3. 
      The 6^th Circuit Court of Appeals reasoned that a jury finding intentional discrimination implicitly rejects the possibility that the employer was acting on an “honest belief”. What the implications are of this decision is unclear, but litigators need to be aware of this decision that might provide persuasive authority in our 10^th Circuit jurisdiction.
      
2. 
   Expanded the definition of what constitutes a "similarly situated" comparator (i.e., another employee to who a comparison similar situation is made).
   
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      Such evidence is used to either justify or undermine an employer's disciplinary decision in discrimination and retaliation cases.
      
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      If a plaintiff offers comparator evidence, the comparator must be “similarly situated”. Caselaw has indicated that the two disciplinary actions must involve the same decisionmaker, applying the same standards, to the same conduct without differentiating or mitigating circumstances.
      
   3. 
      The 6^th Circuit disagreed and held:
      
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         that the two decisions do not need to be made by the same decisionmaker, in order to be comparable,
         
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         that the two decisions being compared do not need to be “the same”, they only have to be “similar”, and an “exact correlation is not required”, and finally,
         
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         that the issue of what conduct was “similar” enough for comparison purposes was a question for the jury.
         

Social media: applicant, requesting password, Stored Communications Act (SCA) or the Computer Fraud and Abuse Act (CFAA)

practicalities and realities of applying for a job, is it convincing for a prospective employer to argue that providing one’s password would be done voluntarily? Looking at other cases dealing with social media, the consensus of decisions seems to be that if a person publishes information without any limitation or restriction, then that information can be viewed without problem, whereas information intended to remain private and designated as such in the site has been considered to beyond prying by others, including prospective employers. Your attention is invited to this interesting cartoon on the subject of social media: http://www.gocomics.com/closetohome/2012/04/10.

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   the employee has the burden of identifying the adverse action and then
   
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   the employer has the burden of proving a RFOA.
   

It defines RFOA as an “objectively reasonable non-age factor” and provides a list of relevant considerations, including the extent to which:

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   the factor is related to the employer’s stated business purpose;
   
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   the factor was applied accurately and fairly;
   
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   managers were trained on how to apply the factor to avoid discrimination;
   
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   manager discretion was appropriately limited (especially in highly subjective situations subject to age-based stereotypes);
   
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   the employer analyzed potential adverse impact on older workers;
   
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   age-protected individuals were harmed; and
   
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   the employer took steps to reduce potential harm.
   

Note that RFOA does not relate to “business necessity”. Rather, it clarifies that the RFOA analysis is more stringent than the business necessity test used in non-age discrimination cases (a fairly-easy-to-satisfy “rational basis” or “non-arbitrary” standard). As such, adequate documentation of performance and of warning and counseling is extremely important.

Upon consideration of Sears’ motion for summary judgment, the district court found Brush could not support a Title VII retaliation claim. Among the deficiencies the district court identified in Brush’s claim was the fact that she was not engaged in “protected activity” as defined by Title VII and therefore her subsequent termination could not be actionable as retaliation. We affirm.