Human resources & employment law cumulative case briefs
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Controlling law. The EEOC generally has the authority to subpoena "any evidence of any person being investigated" as long as the evidence "related to the unlawful employment practices … and is relevant to the charge under investigation." However, this decision held that an EEOC subpoena was overbroad and sought information that was not relevant to the case. EEOC v. Burlington Northern Santa Fe Ry. Co., No. 11-1121, 669 F.3d 1154 (10th Cir., 2/27/12); 2012 U.S. App. LEXIS 3902; http://www.ca10.uscourts.gov/opinions/11/11-1121.pdf [enhanced lexis.com version]. This decision, of interest to litigators, confirms the limits of the agency's subpoena and discovery authority and prohibits the EEOC from trying to initiate "pattern and practice" discovery without a proper aggregation of claims. . The subpoena issued in 2010 requested the following: [A]ny computerized or machine-readable files…created or maintained by you….during the period December 1, 2006 through the present that contain electronic data about or effecting [sic] current and/or former employees…throughout the United States.
ADA, ADAAA: reasonable accommodation, vacant positions, undue hardship Controlling law or illustrative? This case and the 10th Circuit case cited by it as persuasive authority raise questions of their effect, and that means it is time to confer with a competent employment attorney on the effect of both of those cases [as you may know, having elected inactive status, I am no longer licensed to provide legal opinions, though giving notice of court cases is permitted, as is done in this collection of cases.] Two cases involved are:
The problem is that Smith is cited in the United Airlines case as holding that an employer has a duty to reassign the employee to an equivalent, vacant position for which the employee is qualified, even if he is not the most qualified for the job in comparison to other applicants. Going back and reading the Smith case, it may not be all that clear because of a complex set of facts, circumstances and law, and there is a question of what is actually the current state of the law, and might it change soon? Here is the United Airlines case summary: Before CUDAHY, KANNE, and SYKES, Circuit Judges. CUDAHY, Circuit Judge. In this case, the Equal Employment Opportunity Commission (EEOC) asks this court to change its interpretation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (ADA). The EEOC contends that the ADA requires employers to reassign employees, who will lose their current positions due to disability, to a vacant position for which they are qualified. However, this court has already held, in EEOC v. Humiston-Keeling, 227 F.3d 1024, 1029 (7th Cir. 2000), that the ADA has no such requirement. The EEOC argues that the Supreme Court’s ruling in US Airways, Inc. v. Barnett, 535 U.S. 391 (2002), undermines Humiston-Keeling. Several courts in this circuit have relied on Humiston- Keeling in post-Barnett opinions, though it appears that these courts did not conduct a detailed analysis of Humiston-Keeling’s continued vitality. In accordance with this circuit’s case law, we affirm the district court’s holding that the ADA does not mandate reassignment. However, this circuit might reconsider the impact of Barnett on Humiston-Keeling. At this point, we have an illustrative case that may be reversed by its own 7th Circuit Court of Appeals at a later date, and the 10th Circuit case cited as possible persuasive authority that may not be as persuasive as the 7th circuit might hold it to be. The Smith 10th Circuit case’s ADA portion of its decision consists of about 2,700 words of detailed facts and law. Briefly stated, the 10th circuit said: We hold that under the ADA, when a plaintiff is not qualified, even with reasonable accommodation, for the job which he currently holds (or, as here, from which he was terminated), the employing entity has no obligation to consider reassigning him to another position. Under the current EEOC guidelines, the employer's obligation to consider reassignment arises only if the employer can accommodate the employee in his current position, but would experience undue hardship in doing so. That’s important, but just as important is all of the law and facts considered in arriving at that holding. [So, after this passage of time from the 10th Circuit’s decision in Smith, the passage of the ADAAA, the possible issuance of new EEOC regulation, and the possibility of a change of reasoning by the entire panel of judges [referred to as en banc]of the Seventh Circuit Court of Appeals in United Airlines, etc., the law is unclear. That means it is essential to confer with an experienced human resources and employment law attorney on the matter of what might be the new status of persuasive authority on reasonable accommodation, undue hardship, and temporary employees vacating a suitable accommodation position, and so on. I wish I could give a definitive answer now, but this is one of those situations in which human resources and employment law is evolving and is not yet settled.] Public Sector: employment agreement, breach of contract issue; NM Open Meetings Act, waiver of rights issue; effect of acceptance of benefits on contract claim Controlling law. This “brief” is more of a notice to practitioners potentially interested in the specific facts and laws that pretty much limit the general value of this case, and more importantly, certiorari was granted by the New Mexico Supreme Court (NMCA) on 2/6/12, No. 33,380, so the final decision may differ from that of the New Mexico Court of Appeals. Palenik v. City of Rio Rancho, 2012-NMCA-018; http://www.nmcompcomm.us/nmcases/NMCA/2012/12ca-018.pdf [enhanced lexis.com version]. Jonathan B. Sutin, Judge, FYI: After the City of Rio Rancho (the City) was informed by the New Mexico Attorney General that its termination of Plaintiff James Palenick as its City Manager violated the Open Meetings Act (the Act), NMSA 1978, §§ 10-15-1 to -4 (1974, as amended through 2009), the City, in a meeting eleven months after the termination, passed a resolution attempting to retroactively cure the violation. Plaintiff sued on two counts: Count I, to enforce the Act, and Count II, for debt and money due under the employment agreement for the period between the initial termination and the later-attempted cure. We refer to Plaintiff’s claim for debt and money due as a claim for breach of contract. The district court dismissed Plaintiff’s claim in Count I seeking to enforce the Act on the ground that the court lacked subject matter jurisdiction. On Count II, the breach of contract claim, the court determined that the City violated the Act. The court nevertheless held against Plaintiff on his breach of contract claim, holding that the City’s cure in the later meeting of its prior invalid action applied retroactively, resulting in an effective earlier termination. A related issue is whether Plaintiff waived his contention that the City violated the Act when to his employment agreement, when he was initially terminated, believing at the time that the City had violated the Act. The district court held that Plaintiff’s after his termination constituted a waiver of his breach of contract claim. A further issue involves the district court’s denial of Plaintiff’s claim under the Act for attorney fees. We hold that the City’s later attempt to make its invalid termination valid was not effective. We also hold that Plaintiff’s constitute a waiver of his right to salary agreement. We further hold that Plaintiff is not entitled to attorney fees or costs under the Act. Be alert to the certiorari list (as I will be for us). How much may change is uncertain, though Judge Sutin is a keen analyst and excellent jurist and any changes may be more matters of elucidation. Also, it may be that both the NMCA and NMSC opinions will need to be read together to have a complete understanding of the case. , Title VII, THRA: discrimination, retaliation; evidence, similarly situated, discovery erroneously limited; influence on decision-maker; summary judgment Illustrative; not controlling law. The primary issues were (1) how would the decision to terminate the employment of this employee compare with such an action taken against a similarly situated employee, and (2) was the person who made the adverse employment decision free of bias? Bobo v. United Parcel Service, Inc., No. 09-6348, 665 F.3d 741 (6th Cir., 1/9/12); 2012 U.S. App. LEXIS 394; 2012 FED App. 0006P (6th Cir.); 192 L.R.R.M. 2524; 114 Fair Empl. Prac. Cas. (BNA) 254; 161 Lab. Cas. (CCH) P10,435; http://www.ca6.uscourts.gov/opinions.pdf/12a0006p-06.pdf [enhanced lexis.com version]. Facts: Walleon Bobo, African-American in the Army Reserve, worked for UPS as a “feeder supervisor”:
His employment was terminated or falsifying records in violation of the company’s written policies. The company had an objective reason supported by written documentation. He sued on grounds of discrimination and retaliation under the Uniformed Services Employment and Reemployment Rights Act (USERRA), Title VII of the Civil Rights Act, 42 U.S.C. § 1981, and the Tennessee Human Rights Act, essentially alleging that the employer’s adverse employment action was a pretext for discrimination and retaliation because other non-African-American and non-military employees engaged in this widespread practice of falsification of forms and were not ultimately terminated from employment.
Court rules allow parties a number of methods to prepare for trial by discovering the nature and extent of the other party’s case – commonly referred to as “discovery”. During that process, UPS had only provided discovery about a single employee, who was the only Caucasian, non-military feeder supervisor who reported to Bobo’s supervisor. Not surprisingly, his attorney filed a motion to expand the scope of discovery to seek information about several Caucasian, non-military supervisors to whom Bobo attempted to compare himself, even though these individuals reported to a different supervisor. The trial judge denied that motion. The appellate court disagreed with that ruling limiting discovery so narrowly, and held that . . . . . . [c]ontrary to the holding below, Bobo was not required to demonstrate an exact correlation between himself and others similarly situated; rather, he had to show only that he and his proposed comparators were similar in all relevant respects, and that he and his proposed comparators engaged in acts of comparable seriousness. It explained that the similarly situated employees did not have to deal with the same supervisor in every case and that this criterion was never “an inflexible requirement.” It went on to hold that the trial court’s reliance on the standard that only included similarly situated employees that reported to the plaintiff’s supervisor was too narrow and the inquiry on who constituted a comparable depended on the facts of the case and, given the facts of this case, the search should have been expanded by the trial court. [Note: This is similar to the reasoning in Coleman v. Donahoe found several cases below in this collection.]
[Note: Those two factors taken together most likely strongly affected the reasoning of the appellate court, though even considered separately, employers would be wise to avoid making either mistake.] Thus, the appellate court affirmed the grant of summary judgment on the retaliation claims brought under § 1981, Title VII, and THRA, but reversed and remanded for trial on the remaining claims. FMLA, ADA, NMHRA: Unreasonable accommodation request, additional leave of an unspecified duration; retaliation Controlling law. This ruling confirms that indefinite leave is not a reasonable accommodation under the ADA after FMLA leave. A warehouse supervisor died of cancer and Gabriella Valdez, his personal representative, appealed the case on his behalf - unsuccessfully. Valdez v. McGill, No. 11-2051 (10th Cir., 2/13/12); 2012 U.S. App. LEXIS 2783; 18 Wage & Hour Cas. 2d (BNA) 1256; http://www.ca10.uscourts.gov/opinions/11/11-2051.pdf [enhanced lexis.com version]. Doyle “Rocky” Brown was a warehouse supervisor:
He sued on a number of grounds, one of which was that the company failed to accommodate his disability and it ought to have given him more leave time as a reasonable accommodation under the ADA. Valdez also argues Mueller could have reasonably accommodated Brown with additional leave time. A leave of absence may be a reasonable accommodation as long as the employee’s request states the expected duration of the impairment. See Rascon v. US West Comms., Inc., 143 F.3d 1324, 1333-34 (10th Cir. 1998), overruled on other grounds by New Hampshire v. Maine, 532 U.S. 742 (2001); Cisneros, 226 F.3d at 1130. For example, when an employee seeks a leave of absence for treatment and has a good prognosis for recovery, a leave of absence is a reasonable accommodation. Hudson v. MCI Telecomm. Corp., 87 F.3d 1167, 1168-69 (10th Cir. 1996). Conversely, when the employee seeks leave, but it is uncertain if or when he will be able to return to work, a leave of absence is not a reasonable accommodation. Cisneros, 226 F.3d at 1130 (noting the employee must provide “an expected duration of the impairment” which must be more definitive than the mere duration of the leave request). Here, the record shows it was uncertain if or when Brown would sufficiently recover from his impairments to be able to return to work. He submitted two physician’s notes describing his treatment for bronchitis, colon cancer, and fatigue. In the first note, his physician wrote he could return to work on February 8, 2007. Yet he was unable to return to work on that day. The second note stated he “may return to work on March 1[, 2007.]” (Aplt. App. Vol. 1 at 102.) In light of his diagnosis with colon cancer, his frequent absences, and his inability to return to work according to the earlier physician’s note, it was uncertain he would be able to return to work on March 1, 2007. In addition, even if he had been able to return to work, neither note stated the impairment from his cancer and other conditions would be resolved at that time. Quite to the contrary, both notes stated his cancer diagnosis remained unchanged. Valdez also argues Mueller could have reasonably accommodated Brown by using either a temporary employee or an existing employee as a substitute for him. Requiring an employer to reallocate job duties to change the essential functions of a job is not a reasonable accommodation under the ADA. Milton, 53 F.3d at 1124-25. Therefore, Mueller had no obligation to do so. And, to the extent Valdez argues Mueller could have reasonably accommodated Brown through temporary reassignment, the district court correctly concluded he failed to specifically identify an appropriate available job vacancy as our precedent requires. See Duvall v. Georgia-Pacific Consumer Prods., 607 F.3d 1255, 1263 (10th Cir. 2010); Taylor v. Pepsi-Cola Co., 196 F.3d 1106, 1110 (10th Cir. 1999). Because Brown did not show a reasonable accommodation would allow him to perform the essential functions of his job, we agree with the district court that Brown was not a qualified individual4 under the ADA and, consequently, Mueller did not wrongfully terminate him. Tenth Circuit and New Mexico practitioners may find it helpful to read this entire opinion for other controlling authority on other ADA, FMLA and NMHRA issues, because the plaintiff lost on all arguments: Gabrielle Valdez, acting as the personal representative of the estate of Doyle “Rocky” Brown, appeals from the district court’s summary judgment for appellees Brent McGill and Mueller Supply Company on claims related to Brown’s discharge. She contends the district court erred because there were genuine issues of material fact which preclude summary judgment on both her: (1) Americans with Disabilities Act (ADA) and New Mexico Human Rights Act (NMHRA) claim; and (2) Family and Medical Leave Act (FMLA) and breach of contract claim. We affirm. Class action: Title VII, disparate impact issue, sufficient demonstration of common issues of fact and law Illustrative; not controlling law. Class action status was granted in this Title VII case because the plaintiffs clearly demonstrated there were common issues of fact and law. Thus this case differed from Dukes v. Walmart in which there were a million and a half claimants and a theory that the only relevant policies were those forbidding sex discrimination and a policy of delegating employment decisions to local managers. McReynolds v. Merrill Lynch, No. 11-3639 (7th Cir. Feb. 24, 2012); 2012 U.S. App. LEXIS 3683; http://www.ca7.uscourts.gov/tmp/G50LH7MB.pdf; http://www.employmentlawblog.info/2012/02/mcreynolds-v-merrill-lynch-no-11-3639-7th-cir-feb-24-2012.shtml [enhanced lexis.com version]. Similarly to Dukes, Merrill Lynch had delegated certain employment decisions to local managers and brokers, and it had delegated discretion to its local managers and brokers be exercised in a particular fashion, i.e., creating informal teams to generate and manage business, and in distributing accounts to its brokers. Essentially, the problem with this plan was not intentional discrimination, but rather that the delegation of employment decisions in these ways "exacerbates racial discrimination by brokers" through disparate impact. The appellate court stated the following important considerations: Merrill Lynch, accused of discriminating against 700 black brokers currently or formerly employed by it, delegates discretion over decisions that influence the compensation of all the company's 15,000 brokers ('Financial Advisors' is their official title) to 135 'Complex Directors.' Each of the Complex Directors supervises several of the company's 600 branch offices, and within each branch office the brokers exercise a good deal of autonomy, though only within a framework established by the company. Two elements of that framework are challenged: the company's 'teaming' policy and its 'account distribution' policy. The teaming policy permits brokers in the same office to form teams. They are not required to form or join teams, and many prefer to work by themselves. But many others prefer to work as part of a team. Team members share clients, and the aim in forming or joining a team is to gain access to additional clients, or if one is already rich in clients to share some of them with brokers who have complementary skills that will secure the clients' loyalty and maybe persuade them to invest more with Merrill Lynch. As we said, there are lone wolves, but there is no doubt that for many brokers team membership is a plus; certainly the plaintiffs think so. The teams are formed by brokers, and once formed a team decides whom to admit as a new member. Complex Directors and branch-office managers do not select the team's members. Account distributions are transfers of customers' accounts when a broker leaves Merrill Lynch and his clients' accounts must therefore be transferred to other brokers. Accounts are transferred within a branch office, and the brokers in that office compete for the accounts. The company establishes criteria for deciding who will win the competition. The criteria include the competing brokers' records of revenue generated for the company and of the number and investments of clients retained. Also see this wage and hour class and collective action case that was dismissed for failure to allege facts establishing similarly situated class or common issues; Manning v. Boston Medical Center Corporation, Civil Action No. 09-11463-RWZ (U.S.D.C. MA, 4/18/12); http://www.healthcareemploymentcounsel.com/files/2012/04/ManningVsBostonMedCente-GrantingMotionToDismiss.pdf. Title VII: race, gender, constructive discharge blatant misbehavior Illustrative; not controlling law. The white plaintiff and another white administrative employee, the school superintendent, were demoted. The plaintiff claimed that her demotion was a "constructive discharge, and a jury voted in favor of the plaintiff and against the school board consisting of a majority of African-Americans. Constructive discharge is a legal term that means adverse treatment of an employee was sufficient to be equivalent to firing because the employee felt compelled to resign. This is a close relation to constructive discharge. Sharon Y. Sanders v. Lee County School District No. 1, No. 10-3240 (8th Cir., 2/28/12); 2012 U.S. App. LEXIS 3945; http://www.ca8.uscourts.gov/opns/opFrame.html; http://www.employmentandlaborinsider.com/Blog.3.2.12.Sanders.pdf [enhanced lexis.com version]. As summarized by the appellate court: An Arkansas jury found in favor of Sharon Sanders on her Title VII claims of race discrimination and constructive discharge against the Lee County School District No. 1 and individual members of the County's Board of Education. The jury awarded $10,000 in compensatory damages on the race discrimination claim, $60,825 in wages and fringe benefits on the constructive discharge claim, and a total of $8,000 in punitive damages against three individual defendants. Following trial, the district court granted the defendants' motion to set aside the constructive discharge and punitive damage verdicts, and awarded a fraction of the attorney fees requested by Sanders on her race discrimination claim. Sanders filed a timely appeal contending the district court erred in vacating the constructive discharge claim and the punitive damage award, and abused its discretion in reducing her request for attorney fees. We reverse and remand for further proceedings. The facts are detailed, so read the opinion to make sure you understand the entire situation, which is important in constructive discharge and hostile work environment cases. Another issue on appeal was whether the plaintiff was entitled to punitive damages [to punish and/or make an example of a defendant in an egregious case, rather than compensate the plaintiff]. Proof needs to consist of malicious behavior or showed "reckless indifference" to a plaintiff’s rights, safety or property. The Eighth Circuit held that when an employer "blatantly" discriminates based on race, "reckless indifference" can be presumed because employers know or have a duty to know in this day and age that race discrimination is illegal, and this has been the holding in the Third Circuit. The Eighth Circuit remanded [i.e., returned] the case to the trial court to hear the school board's evidence that it had no idea that race discrimination was illegal. Download 5.55 Mb. Share with your friends:
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