Human resources & employment law cumulative case briefs
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| § 706 of Title VII gives the EEOC authority to sue on behalf of one or more persons aggrieved by an unlawful discriminatory employment practice if the individual filed a charge with the Commission within 300 days after the alleged act.
§ 707 allows the Commission to investigate and act on cases involving a pattern or practice of discrimination in accordance with the procedures set forth in section 706. Note: A “pattern and practice” claim differs from a “continuing violation” claim. EEOC v. Kaplan Higher Education Corp., No. 1:10 CV 2882 (U.S.D.C.N.D. OH, 5/10/11; http://scholar.google.com/scholar_case?case=1289765973445445651&q=EEOC+v.+Kaplan+Higher+Education+Corp.&hl=en&as_sdt=2,32&as_vis=1 [enhanced lexis.com version]. FMLA: trip to Cancun during FMLA leave, employer’s written FMLA leave policy, travel restrictions Illustrative; not controlling law. The employer, the Communications Workers of America (CWA), had in place written work rules specifically required employees to "remain in the immediate vicinity" of their home while absent on sick leave. An exception was allowed for seeking treatment or taking care of "ordinary or necessary activities directly related to personal or family needs", and in those instances the employee must have express permission from CWA. The employee did not have permission and was fired. The trial judge ruled that CWA policy was reasonable because it is a sick leave policy that she would have been fired for violating even if she had not been on FMLA leave. Pellegrino v. Communications Workers of America, No. 10-0098 (or 2:10-cv-00098-GLL) (U.S.D.C.W.D.PA, 5/19/11); FMLA Insights article with PDF link to the court decision: http://www.fmlainsights.com/abuse-of-fmla-leave/employees-fmla-claim-dismissed-after-taking-a-trip-to-cancun/ [enhanced lexis.com version]. NLRA: pre-emption by the National Labor Relations Act, unfair labor practice (ULP), Section 301; Garmon, Beasley and Machinists cases Controlling law. This case is of interest primarily to litigation attorneys. Humphries v. Pay and Save, Inc., aka Lowe’s Grocery #55, and Tim Cotton, 2011-NMCA-035, Certiorari Not Applied For; 2011 N.M. App. LEXIS 11; http://www.nmcompcomm.us/nmcases/NMCA/2011/11ca-035.pdf [enhanced lexis.com version]. An employee suspected of union organizing was fired, and he sued in state district court for (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) negligent or intentional misrepresentation; (4) wrongful termination; (5) tortious interference with contractual relations (against Tim Cotton individually); and (6) declaratory relief. All counts relied on the same core of common facts. {1} Plaintiff William R. Humphries argues the district court improperly dismissed his claims. He alleged below that his employers Pay and Save, Inc., and Tim Cotton (collectively Defendants) improperly terminated his employment on suspicion that he engaged in union-organizing activities. The district court concluded that federal labor law preempted. {24} We affirm the district court. While it is true that Section 301 of the LMRA poses no obstacle to Plaintiff’s claims, each still fails under either Garmon, Beasley or Machinists, regardless of whether we consider Plaintiff an employee or a supervisor under the NLRA. ERISA: summary plan description (SPD). Inconsistencies between SPD and underlying plan document, detrimental reliance may not be necessary for recovery Controlling law. Depending on circumstances, (1) plan participants may be entitled to equitable relief when there are inconsistencies between an SPD and the underlying plan document, and (2) detrimental reliance by participants need not necessarily be proved; rather, the amount of harm to be proved in each particular case will depend on the applicable equitable theory of relief. The evidentiary process is:
This decision settles divergent opinions among the various federal circuit courts of appeal:
CIGNA Corp. v. Amara, No. 09-804, ____ U.S. ____ (5/16/11); slip opinion pending formal publication; http://www.supremecourt.gov/opinions/10pdf/09-804.pdf [enhanced lexis.com version]. CFAA: not intended as a basis to dismiss for poor performance Illustrative; not controlling law. The CFAA has been held to be applicable for instances of employer's trade secrets or proprietary information via email, but in this case it was rejected as a basis for terminating the employment of an employee who was accessing Facebook at work rather than working. Wendi Lee v. PMSI, Inc., No. 8:10–cv–2904–T–23TBM (U.S.D.C.M.D.FL, 5/6/11); http://blog.internetcases.com/about/library/lee-v-pmsi-m-d-florida-may-6-2011/ [enhanced lexis.com version]. ADA, ADAAA: cancerous tumor, leave for surgery, fired; new federal rule of civil procedure Illustrative; not controlling law. This is a federal district court decision at the trial level, so strictly speaking it has limit applicability, but the reasoning may be strong persuasive authority, though not controlling, or binding, authority, and it is an important case for a couple of reasons:
Norton v. Assisted Living Concepts Inc., No. 4:2010cv00091 (U.S.D.C.E.D.TX, 5/13/11); http://dockets.justia.com/docket/texas/txedce/4:2010cv00091/121321/ [enhanced lexis.com version]. Here are the operative facts:
He sued for disability discrimination, and his employer answered that he was fired for poor performance. As is typical, the employer moved for partial summary judgment on the grounds that the employee did not a disability. In rejecting that argument, the federal trial judge noted three factors:
most importantly, the major difference between the ADA as originally passed and the ADA after the ADAAA is that there is a disability even if the only major life activity the condition substantially limits is something very narrow, such as normal cell growth. Title VII: discrimination, decisionmaker, racial animus, retaliation, termination Illustrative; not controlling law. $1.6M was the award in this case. This one makes interesting reading about egregious misconduct still going on in the workplace. The employee’s complaints were unavailing, and condition worsened. Termination of his employment was stated to be because of poor performance. Evidence indicated that the decisionmaker harbored racial animus. Thomas v. iStar Financial, Inc., has a long legal history, and the summaries by the courts are instructive:
Title VII: race, history of twenty-three complaints against, recent complaint filed by him; evidence, timing, documentation, three-step proof; no pretext; no retaliation Controlling law. Twenty-three internal complaints (five for sexual harassment) had been made against this African-American male employee who had adequate performance evaluation. A complicating factor in this case was that he had recently filed his own complaint alleging lack of advancement opportunities for African-Americans. Crowe v. ADT Security Services, Inc., No. 10-1298 (10th Cir., 4/25/11); 112 Fair Empl. Prac. Cas. (BNA) 1; http://www.ca10.uscourts.gov/opinions/10/10-1298.pdf [enhanced lexis.com version]. Fortunately, the employer had adequate documentation of his misbehavior, and the employer’s investigation of the situation also was adequate. As you will recall, these are the essential elements of the three-step evidentiary proof rule:
Element 3 was a pivotal issue, and the plaintiff used an interesting approach in his attempt to prove pretext: he argued that his long disciplinary history, eight years, proved that his employer tolerated his misbehavior for so long that it could not be the basis for terminating his employment, and it stopped when he participated in a discussion about the lack of African-American managers. The appellate court rejected that novel argument because it found that the employer’s corrective action of his misbehavior had been consistent and coherent. Also, it found that there was no evidence of discrimination, i.e., no evidence that similarly situated employees were treated differently. Finally, it found that there was no evidence of pretext for retaliation because his termination was based on his extensive history of inappropriate behavior as shown by the investigator's report stating his long history of bad behavior and that no remedial measures had been effective. judgment in favor of the employer was affirmed because the appellate court found that a reasonable jury could not conclude that firing plaintiff based on his history of inappropriate behavior was pretextual, even when this occurred after his participation in the discussion about the lack of African-Americans in management. Caution: The appellate court distinguished this case from those cases in which the employer explains its reason for terminating employment based on subjective evaluation criteria and there was a shift from positive performance reviews to negative ones, which might be considered to be evidence of pretext. FLSA: “continuous workday” rule, tasks performed at home, commuting time, and more Illustrative; not controlling law. As electronic devices become more prevalent in the business world, when does the workday begin and end? If employment duties extend into personal time and space, how is pay calculated? Does commuting time count? These are questions to discuss with your employment law attorney to ensure you are complying with the FLSA. Under the FLSA, the “continuous workday” rule refers to time spent traveling after the workday has begun. Thus if an employee reports to work at a central office, completes necessary paperwork, and thereafter drives to his or her first work assignment, the time spent traveling is compensable work time, as is time spent traveling between customer locations. On the other hand, ordinary time spent commuting from home to and from work is not compensable Kubuel v. Black & Decker, No. 10-2273-cv (2nd Cir., 5/5/11); 2011 U.S. App. LEXIS 9448; http://www.ca2.uscourts.gov/decisions/isysquery/cd37e10c-f29e-4e63-8355-123f9b87503e/2/doc/10-2273_opn.pdf [enhanced lexis.com version]. This Second Circuit case decided, among other things, that the workday has not begun when the employee: he works from a home office, completes work at home, such as reviewing and responding to e-mail, before commuting to the first job assignment or doing things like that after commuting home. However, it let other issues remain for trial. Caution: Read this case for the details of what the employee did and did not do, and what the appellate court considered important. Decisions in these situations depend on very specific facts and circumstances, so no general rule can be stated, which is why each employer must discuss their unique factual situations with their employment attorney. In addition to FLSA situations, there are also implications for whether an employee might be covered by workers’ compensation and other laws. Privacy: electronic information, Computer Fraud and Abuse Act (CFAA), departing employee obtained confidential company documents, who is an authorized user, and who is not, disloyal employee(s) Illustrative; not controlling law. This case provides new and helpful additional perspectives on the CFAA that may be helpful to employers faced with activities by disloyal employees. David Nosal employee signed a covenant-not-to-compete in effect for a period of one year. Soon after executing that agreement he began recruiting fellow employees to use their company email accounts to access confidential company information for him to use to start a competing business. One twist on the CFAA in this case is that the employees still with the company were authorized to have access to that information, but only for use on behalf to the company and for the benefit of the company. He also had sent such information to himself at his personal email account. Such activities were found by the 9th Circuit Court of Appeals to violate the CFAA. Read the entire opinion of pertinent history of previous appellate rulings on the CFAA (Citrin, Brekka, and others). United States v. Nosal. No. 10-10038 (9th Cir., 4/28/11); 2011 U.S. App. LEXIS 8660; http://www.ca9.uscourts.gov/datastore/opinions/2011/04/28/10-10038.pdf [enhanced lexis.com version]. ADA, Disability: mental disability, bipolar disorder, misbehavior, medication and psychotherapy, chemical imbalance; corrective action, focus on behavior, not condition Illustrative; not controlling law. As has been seen previously, focusing on the behavior or misbehavior is different from reacting to an employee’s actual or perceived condition. This 2008 EEOC guideline provided assistance: http://www.eeoc.gov/facts/performance-conduct.html. An employer may apply the same performance standards to all employees, including those with disabilities. The ADA does not restrict an employer’s right to hold all employees to basic standards of conduct, though it cautions that “employers must make reasonable accommodations that enable individuals with disabilities to meet performance and conduct standards.” Wills v. Superior Court, G043054 (Cal.App., Dist. 4, Div. 3, 4/13/11); 194 Cal. App. 4th 312; 2011 Cal. App. LEXIS 434; http://www.courtinfo.ca.gov/opinions/documents/G043054.PDF [enhanced lexis.com version]. A court clerk assisted with video criminal arraignments in the city detention facility. One day she had to wait several minutes after buzzing to enter, and she flared up by swearing and yelling at detention officers for what she perceived and accused them of intentionally leaving her outside on a hot summer day. She told one officer that she added him and the detention facility assistant to her “Kill Bill” list for leaving her out in the heat. Consequently officers and other witnesses felt threatened by her demeanor and statements, which they interpreted to refer to the Kill Bill movie’s death list. The police department reported her misbehavior to the county court and requested she never be assigned to the city facility in the future. After a physician released her to return to work following this incident, the county court investigated and decided to terminate her employment for these reasons:
which the county court explained violated its employee handbook provisions prohibiting verbal threats, threatening behavior, and violence, plus her behavior and other efforts to minimize her conduct as a joke demonstrated poor judgment. She filed a discrimination lawsuit that alleged violations of California’s Fair Employment and Housing Act (FEHA) for disability discrimination, retaliation, and hostile work environment, failure to prevent harassment, failure to engage in the interactive process, and failure to make reasonable accommodations. Summary judgment was granted by the trial court judge in favor of the employer. On appeal there was no dispute that her bipolar disorder caused her misbehavior. Recognizing that federal and state courts do not all agree on whether this is disability discrimination, the California state appellate court opted to narrowly rule on the matter and limit its decision in this instance to situations of workplace threats and violence, stating that . . . that “Consistent with the federal courts' interpretation of the ADA, we interpret FEHA as authorizing an employer to distinguish between disability-caused misconduct and the disability itself in the narrow context of threats or violence against co-workers.” [California Labor Code § 6400(a) states: “Every employer shall furnish employment and a place of employment that is safe and healthful for the employees therein.”] It went on to state: We emphasize we are not presented with a situation involving misconduct impacting an employee's job performance the employer potentially could address through accommodation. For example, an employer could accommodate an employee whose disability caused chronic tardiness or absenteeism by altering the employee's work schedule. We express no opinion on whether FEHA permits an employer to distinguish between disability-caused misconduct and the disability itself in any factual setting other than threats or violence against coworkers. [Note: As always, check with your employment law attorney for the latest law in your jurisdiction on this issue. The California appellate court’s caveat on accommodation is worth considering in such instances. Also, this is a good article to review – How far Is Too Far?: http://www.google.com/#sclient=psy&hl=en&site=&source=hp&q=HOW+FAR+IS+TOO+FAR%3F++EMPLOYEE+MISCONDUCT+AND+THE+AMERICANS+WITH+DISABILITIES+ACT*++by++Clay+D.+Creps++and++Frederick+B.+Finberg&aq=&aqi=&aql=&oq=&pbx=1&fp=adcf664a5d2e9331&biw=665&bih=984.] ADA: drug rehabilitation, status of recovery, refusal to rehire; no “bright-line” time rule, proof must be on a case-by-case basis Controlling law. The employer decided not to rehire an employee at the conclusion of his one-month participation in a drug rehabilitation program because he could not show he was not currently using illegal drugs. Our 10th Circuit Court of Appeals ruled the employer had not violated his rights under the ADA. Decisions about current drug use need to be handled on a case-by-case basis. The full opinion provides a detailed analysis of the law on this sensitive and sometimes complicated matter. Mauerhan v. Wagner Corp., Nos. 09-4179 & 09-4185 (10th Cir., 4/19/11); 2011 U.S. App. LEXIS 7952; http://www.ca10.uscourts.gov/opinions/09/09-4179.pdf [enhanced lexis.com version]. Peter Karl Mauerhan worked for Wagner Corporation as a sales representative starting in 1994. In 2004 he voluntarily entered a one-month drug rehabilitation program, his employer was aware of that, and it did not interfere with his work schedule. In 2005 he submitted to a drug test requested by his employer, and he failed it, which was a violation of the employer’s company drug policy. His supervisor informed him that “he could return to Wagner if he could get clean.” Mauerhan returned to the program, but the prognosis at the end was “guarded”. Mauerhan was advised that “he could return to work, but that he would not receive the same level of compensation as he had previously received or be able to service the same accounts he had prior to his discharge”, and based on those conditions he declined the offer. He sued and the federal trial court ruled that “one month of abstaining from drugs was too short as a matter of law to gain the protections of the ADA”, and the 10th Circuit Court of appeals affirmed that ruling. Here are the important aspects of the appellate decision:
Arbitration: class action prohibition ruled unconscionable and unenforceable, Federal Arbitration Act (FAA) preempts state legislation Download 5.55 Mb. Share with your friends:
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