Human resources & employment law cumulative case briefs



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Controlling law. This case is cited for its comprehensive review of the applicable legal theories and definitions, which are conveniently located in one place. The facts are numerous and detailed and can be read in the full opinion linked below. Here is the appellate court’s recitation of the applicable law [set forth in portions edited for ease of readability – full legal citations available in the unedited opinion]:
III.
"Sexual harassment is actionable under a hostile work environment theory when the harassing conduct is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." * * * This is true regardless of whether the environment is created by a fellow employee or nonemployee, such as a customer, because "the employer ultimately controls the conditions of the work environment."
In cases where a plaintiff claims harassment by a nonemployee, we apply a negligence theory. * * * "The negligence analysis can be divided into two separate inquiries, looking first, into the employer's actual * * * or constructive knowledge of harassment, and second, into the adequacy of the employer's remedial and preventative responses."
"With regard to knowledge, a plaintiff may prove actual knowledge based on her reports of harassment to management-level employees or constructive knowledge based on the pervasiveness of the sexual hostility within the working environment."
There is "no bright-line rule for measuring the [adequacy] of an employer's response." Instead, we look at "whether the response was reasonable under the circumstances." * * * "Key factors in that determination are the promptness and effectiveness of any action." * * * Because "[i]t is not always possible for an employer to completely eliminate offensive behavior, . . . the effectiveness inquiry looks not to whether offensive behavior actually ceased but to whether the remedial and preventative action was reasonably calculated to end the harassment
IV.
In cases where a Title VII plaintiff relies on indirect or circumstantial evidence to prove retaliation, we examine the claim under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green. * * * Under this framework, the plaintiff carries the initial burden of establishing a prima facie case, which requires her to "demonstrate (1) that [s]he engaged in protected opposition to discrimination, (2) that a reasonable employee would have found the challenged action materially adverse, and (3) that a causal connection existed between the protected activity and the materially adverse action." * * * Once a plaintiff meets her initial burden, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse action. If the defendant makes this showing, the burden shifts back to the plaintiff to demonstrate the proffered explanation is pretext.
Aguiar v. Bartlesville Care Center, No. 10-5002 (10th Cir., 1/28/11); 2011 U.S. App. LEXIS 1804; http://www.ca10.uscourts.gov/opinions/10/10-5002.pdf [enhanced lexis.com version].
Title VII: hostile work environment defined
Controlling law. This case is cited for a review of the definition a hostile work environment: * * * "a plaintiff must show that a rational jury could find that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Shaw v. Tulsa Dynaspan Arrow Concrete, No. 10-5066 (10th Cir., 1/28/11); 2011 U.S. App. LEXIS 1867; http://www.ca10.uscourts.gov/opinions/10/10-5066.pdf [enhanced lexis.com version].
FMLA: validity of medical certification, reasonable doubt, alleged faith healing vacation; summary judgment for the employer affirmed
Illustrative; not controlling law. What is valid FMLA medical leave, and what may an employer do to obtain other certification information in a questionable situation?

  • Validity: The employer questioned the validity of the employee’s seven-week trip to the Philippines with her husband, who was suffering from multiple health problems. During their trip they visited family and friends, attended mass and met with officials of the Catholic Church. The First Circuit Court of Appeals ruled that this was not medical care for the employee’s husband within the meaning of the FMLA, and thus concluded that the employer did not violate the FMLA by terminating the employee for taking unapproved leave.

  • Certification: As to the basis for that decision, the court ruled that it was not an FMLA violation for the employer to question the medical certification under these circumstances. When faced with a questionable medical certification purporting to support the type and need to care for a family member, an employer is authorized to request the employee to submit a second medical certification from the health provider who was treating the family member and was more familiar with the potential need for medical leave.

In this case the employer’s actions were held not to be violations of the FMLA. Tayag v. Lahey Clinic Hosp., Inc., No. 10-1169 (1st Cir., 1/27/11); 2011 U.S. App. LEXIS 1697; [typographical corrections to the following initial opinion] http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=10-1169E.01A; [original PDF opinion with typographical errors] http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=10-1169P.01A [enhanced lexis.com version].
NLRA: union, “protected concerted activity”, only one employee involved
Controlling law. The National Labor Relations Act covers all employees - unionized or non-unionized - and grants them the right to engage in protected concerted activity concerning matters of the terms and conditions of employment, such as they talk with each other about their wages, hours and working conditions, and an employer may not discipline or discriminate against employees who engage in such discussions.
In this case, one employee was fired after complaining to her supervisor about a perceived wage disparity, which she had not discussed the issue with fellow employees. The common interpretation of “concerted activity” has been activity engaged in by two or more people, and that was the reasoning of the Administrative Law Judge (ALJ) in ruling that the employer did not violate the NLRA because the employee had not discussed the wage issue with her co-workers and thus had not engaged in protected concerted activity. However, The National Labor Relations Board reversed the ALJ and ruled that Parexel fired the employee as a “preemptive strike” in order to prevent her from discussing the wage issue with her co-workers. As the NLRB explained:
It is beyond dispute that an employer violates Section 8(a)(1) by threatening to terminate an employee in order to prevent her from exercising her Section 7 rights, for example, by discussing wages with co-workers. It follows that an employer similarly violates Section 8(a)(1) by simply terminating the employee in order to be certain that she does not exercise her Section 7 rights. Indeed, the Board has often held that an employer violates the Act when it acts to prevent future protected activity. (footnote omitted)
Whether this NLRB ruling will stand up if challenged in court remains to be seen. For the time being, though, it is a ruling to be aware of and comply with. Parexel International, LLC, 356 NLRB No. 82 (2011); http://www.nlrb.gov/shared_files/Board%20Decisions/356/v35682.pdf [enhanced lexis.com version].
Title VII: discrimination, race, age, three-step evidentiary proof; retaliation
Controlling law. This former employee’s case failed in both the trial court and the 10th Circuit Court of Appeals. Altus Gardner, male African-American had serious performance deficiencies that were found to be the reason for his resignation, not racial discrimination. His retaliation claim also failed.
Gardner v. Sears Holding Corp., No.10-5017 (10th Cir., 10/15/10; not officially published by the court); 2010 U.S. App. LEXIS 21315; http://www.ca10.uscourts.gov/opinions/10/10-5017.pdf [enhanced lexis.com version].
Discrimination:

Three evidentiary steps are required in this type of discrimination claim:



  1. the employee must establish an initial prima facie case that as an employee within a statutorily protected class he was treated differently from “similarly situated” employees, and then

  2. the employer would need to show it had a legitimate, non-discriminatory reason for its adverse employment action(s), and if it did, then

  3. the employee must then prove that reason was merely a pretext for discrimination.

His race claim failed because evidence showed his store received negative performance reviews [employer’s valid business reason], whereas store managed by non-African-Americans did not. Similarly, his age discrimination claim failed for the lack of similar proof of age bias. The appellate court noted that even if he had proved a prima facie case, the employer’s evidence of poor performance was sufficient.


Retaliation:

His proof also failed here because even if he had proved a prima facie case, he failed to show that Kmart’s non-discriminatory explanations for its actions was not legitimate, i.e., there were valid negative performance evaluations.


Title VII: discrimination, race, untimely filing, intake questionnaire; retaliation; minimal acts, minor annoyances, petty slights
Controlling law. Proof of racial discrimination failed, as did proof of retaliation.
Riley v. Tulsa County Juvenile Bureau, ex. Rel. Tulsa County Bd. of Comm’rs, No. 10-5038 (10th Cir., 11/30/10; not officially published by the court); 2010 U.S. App. LEXIS 24547; http://www.ca10.uscourts.gov/opinions/10/10-5038.pdf [enhanced lexis.com version].
Untimely discrimination claim:

The worker failed to file most of his claims within the 300 day filing requirement. His one remaining claim was without merit because it was based on action taken after he had resigned, and thus was not a basis for his resignation. Further, opposition to his unemployment compensation claim was not protected by Title VII because any alleged conduct of his supervisor in the unemployment hearing process did not affect either his employment or alter the conditions of his workplace [because he was no longer there], and thus was outside of Title VII’s scope of matters within the workplace [an important distinction].


Retaliation:

Here his evidence consisted of a delay in reimbursing his mileage claim. That claim was initially rejected because it was on the wrong form, but it was soon approved. This was found to be a petty slight or minor annoyance that did not rise to the level of a serious retaliation contemplated to be covered by Title VII’s anti-retaliation provisions.


WARN Act: mass layoff, 60-day notice, reasonable calculation, definitions, “employment loss”, exceptions, employees who have left
Illustrative; not controlling law. The Worker Adjustment and Retraining Notification Act (WARN) was enacted to provide employees of a possible mass layoff in order to allow them time to look for other work, etc. WARN and its regulations contain so many exceptions and special definitions regarding who is an employee, who counts as a layoff, etc., that employers definitely need to seek expert legal advice if a business is possibly facing a large layoff or closing. In this case the main issues were whether (1) 50 or more employees were involved and (2) how to count the 60 days required advance notice. The notice stated an anticipated shutdown date of October 7, and the employer argued that by that date all the employees had left employment after being told the business is going to shut down. The ruling of the 9th Circuit Court of Appeals was that when employees leave employment after being told the business is going to shut down, that is not a "voluntary departure" exception to the "employment loss" definition. Whether this case provides persuasive authority and reasoning for other jurisdictions is arguable and uncertain, so take this notice that employers need to confer with legal counsel if a large shutdown is a possibility. Collins v. Gee West Seattle LLC, No. 09-36110 (9th Cir., 1/21/11); 2011 U.S. App. LEXIS 1169; http://www.ca9.uscourts.gov/datastore/opinions/2011/01/21/09-36110.pdf [enhanced lexis.com version].
Title VII; third-party claim retaliation allowed
Controlling law: The United States Supreme Court allowed a third-party retaliation claim to be brought by the fiancé of a woman who filed a gender discrimination claim with the EEOC. The retaliation was against him, termination of his employment, and he filed for violation of the anti-retaliation provisions of Title VII. Both the trial court and the Sixth Circuit Court of Appeals dismissed his lawsuit on the grounds that it was not based on a legally recognized theory of law.
Thompson v. North American Stainless, LP, No. 09-291, ____U.S. ____, (6/29/10, but published 1/24/11); 130 S. Ct. 3542; 177 L. Ed. 2d 1121; 2010 U.S. LEXIS 5525; 79 U.S.L.W. 3007; http://www.supremecourt.gov/opinions/10pdf/09-291.pdf [enhanced lexis.com version].
Here is the analysis of the Justices:

  1. Does Title VII prohibit an employer from retaliating against an employee based on the employee's close association with an individual who engaged in protected activity? Yes, The Court reasoned if Thompson's claims were true, termination of his employment violated Title VII because "Title VII's antiretaliation provision prohibits any employer action that 'well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.'" Further, the Court noted that it thought it was "obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired."




  1. Next, if so, could Thompson could sue NAS for retaliation under Title VII, and it concluded that Thompson fell within the "zone of interests protected by Title VII" because the statute is supposed to protect employees from employers' unlawful actions. The Court went on to state that if the facts alleged by Thompson were true, injuring him was NAS' intended means of harming his fiancée.

The Roberts court tends to rule narrowly, i.e., not announcing law unnecessary to decide the strict issues before it. Thus it didn't "identify a fixed class of relationships for which third-party reprisals are unlawful." Nonetheless, the Court did say that firing an employee's close family member as a means of retaliation would most likely be unlawful.


Public Sector: contract employees, background checks, extent of inquiry regarding drug treatment or counseling and other negative "general behavior or conduct" information
Controlling law. Employees of the federal government are protected by rights granted in the United States Constitution and Amendments. Issues arise relating to the balance between the privacy rights of its employees and the right of the government’s interests in managing its workforce. The Court avoided discussing or answering the interesting issue of whether the information was actually protected by a Constitutional right to privacy. Rather, it recognized the precedent of thirty years that created a broad Constitutional interest in avoiding disclosure of personal matters, but it declined to limit, expand or even address the contours of that right.
Caution: As a matter of good business practice, it is essential for employers to carefully protect all such information in order to fully respect the privacy rights of employees.

NASA, No. 09-530 ____ U.S. ____ (2010); 130 S. Ct. 1755; 176 L. Ed. 2d 211; 2010 U.S. LEXIS 2298; 78 U.S.L.W. 3521; http://www.supremecourt.gov/opinions/10pdf/09-530.pdf [enhanced lexis.com version].
In this case certain low-risk employees of the Jet Propulsion Laboratory in Pasadena, CA, questioned the extent to which NASA could inquire into behavioral information. That process was the same background investigation that it requires of its civil service employees, and challenges were made by the low-level employees as violating their privacy:

  • Form, SF-85, requested residential, educational, employment, and military histories; the names of three references that "know you well"; and whether the applicant has used, possessed, supplied or manufactured illegal drugs.

  • Any applicants who answered "yes" to the drug-related questions were then asked to provide information regarding the types of substances, the nature of the activity, and any other details relating to their involvement with illegal drugs, including treatment or counseling received.

  • After completing SF-85, the government ran the employee's information through FBI and other federal-agency databases.

  • The government also sent an inquiry, Form 42, to each of the employee's references and former landlords requesting any adverse information about "honesty or trustworthiness," "violations of the law," "financial integrity," "abuse of alcohol or drugs," "mental or emotional stability," "general behavior or conduct," and "other matters" that may have a bearing on the applicant's suitability for employment at a federal facility.

In ruling that this inquiry process was reasonable, the United States Supreme Court stated that when the government acts as an employer, it has more discretion to deal with citizen employees because of its interest in the security of its facilities, managing its internal operations, and employing a competent, reliable workforce to carry out its business.


Concerning questions about drug treatment or counseling, those are viewed in the context as a follow-up question to separate illegal-drug users who are taking steps to address and overcome their problems from those who are not.
As to the open-ended inquires into the employee's general behavior or conduct, those were found to be reasonably aimed at identifying capable employees who will faithfully conduct the government's business. Also, the Court noted such inquires are commonplace in the private sector and for the government's civil service employees.
Finally, the Court recognized that the collected information is protected by The Privacy Act, which requires written consent before the government may disclose an individual's records and imposes criminal liability for willful disclosures. This protection would allay any privacy concerns on behalf of the employees.
Evidence: attorney-client privilege, waiver; use of company computer rather than personal computer
Illustrative; not controlling law. The California courts found that the employee had waiver her protection of attorney-client privilege when she used the company computer rather than her own to communicate with her attorney. The trial court held that Holmes waived the privilege because she used company email, and there were clear policies explaining the company's right to monitor email, and the court of appeal agreed:
Although a communication between persons in an attorney-client relationship "does not lose its privileged character for the sole reason that it is communicated by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communication may have access to the content of the communication" (§ 917, subd. (b)), this does not mean that an electronic communication is privileged (1) when the electronic means used belongs to the defendant; (2) the defendant has advised the plaintiff that communications using electronic means are not private, may be monitored, and may be used only for business purposes; and (3) the plaintiff is aware of and agrees to these conditions. A communication under these circumstances is not a “„confidential communication between client and lawyer‟” within the meaning of section 952 because it is not transmitted “by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation . . . .” (Ibid.)

When Holmes e-mailed her attorney, she did not use her home computer to which some unknown persons involved in the delivery, facilitation, or storage may have access. Had she done so, that would have been a privileged communication unless Holmes allowed others to have access to her e-mails and disclosed their content. Instead, she used defendants‟ computer, after being expressly advised this was a means that was not private and was accessible by Petrovich, the very person about whom Holmes contacted her lawyer and whom Holmes sued. This is akin to consulting her attorney in one of defendants‟ conference rooms, in a loud voice, with the door open, yet unreasonably expecting that the conversation overheard by Petrovich would be privileged.


Holmes v. Petrovich Development Company, LLC; C059133 (3rd App. Div.; 1/13/11); 2011 Cal. App. LEXIS 33; http://www.courtinfo.ca.gov/opinions/documents/C059133.PDF [enhanced lexis.com version].
NLRA; supervisor fired; refused to commit unfair labor practice, wrongful discharge, protected by Act
Illustrative; not controlling law. A supervisor was protected by the Act. He had been ordered by a company vice president to “build a case” against a couple of pro-union, activist employees in order to fire them, which the supervisor refused to do. Typically, the Act does not cover supervisors, but this situation was an exception to because such behavior would thwart the purposes of the Act. Lewis v. Whirlpool Corporation, No. 09-4231 (6th Cir., 1/12/11); 2011 U.S. App. LEXIS 593; 2011 FED App. 0013P (6th Cir.); http://www.ca6.uscourts.gov/opinions.pdf/11a0013p-06.pdf [enhanced lexis.com version].
ADA: inability to perform essential functions, accurate job descriptions, no reasonable accommodation required
Illustrative; not controlling law. This federal district court case provides another illustration that if a worker cannot perform the essential functions of the job, and for that reason the worker’s claim of denial of making a reasonable accommodation fails. Notably, the judge deferred to the employer’s valid business determination of what were essential functions of the job. [Note: As a matter of good business practices, it is very critical that job descriptions be current, accurate, and based on valid business purposes.]
McEnroe v. Microsoft Corp., No. CV-09-5053-LRS (E.D.18, 2010); http://hr.cch.com/EMPNews/mcenroe.pdf [enhanced lexis.com version].
Lesann McEnroe was a Human Resources staffing associate handling administrative support for Microsoft recruiters. For several years she had worked full time from her home in Kennewick, Washington. Toward the end of that period she informed Microsoft she was disabled and unable “to work at or travel to the Microsoft’s Redmond, Washington, campus” and to attend any functions there related to work because she suffered, among other things, from panic disorder, agoraphobia, post-traumatic stress disorder, and irritable bowel syndrome. When she applied for four higher-level positions requiring travel and/or her physical presence in Redmond, she stated “Due to my disability, I am unable to travel or work on campus as you note”, and she was not promoted to any of them. In her suit for ADA discrimination, in which she represented herself [pro se], she contended that being physically present in Redmond was not an essential function of the positions for which she had applied. That contention was rejected by the trial judge because he found the employer’s job descriptions were valid, that she was unable to perform them, and therefore no accommodations were required. Thus, the employer’s motion for summary judgment was granted [dismissal without trial because there is no issue of material fact for a jury].
Title VII: protects against discrimination, not uncivil and abrasive behavior, gender not a factor, no disparate treatment, discrimination and retaliation claims rejected
Illustrative, not controlling law. Working for an abrasive, difficult or unreasonable supervisor can be very unpleasant, but if it is not based on gender [or some other protected class] it may not be protected by Title VII. United States Supreme Court opinions have stated the Title VII is not a civility code [see Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), for example] However, prudent practice would be to thoroughly investigate complaints of such conditions, and good business practice would be to counsel the oppressor to ameliorate the situation if at all possible – oppressive working conditions are bad for morale and could lead to unsafe or inefficient production.
Essentially, female employees felt that the physician supervising them was retaliating against them for complaining about his management style [abrasive, bullying, disrespectful, unreasonable and unrealistic expectations, setting them up for failure, etc.] by making schedule changes they felt were unfavorable and burdensome. Investigation found that the physician also treated males similarly, and so gender was found not to be the cause of his behavior. For a bit more details read Department of Veterans Affairs (VA) hospital. Ahern, et al v. Shinseki, 09-1985, (1st Cir., 12/13/10); 2010 U.S. App. LEXIS 25368; http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=09-1985P.01A [enhanced lexis.com version].
Computer Fraud and Abuse Act: CFAA, employer’s policy limiting employee access and use of computerized information
Illustrative; not controlling law. Courts continue to differ on interpretations of CFAA, but staying current with those developments will facilitate employer awareness of potential problems.
United States v. Roberto Rodriguez, No. 09-15265 (11th Cir., 12/27/10); 2010 U.S. App. LEXIS 26203; http://www.ca11.uscourts.gov/opinions/ops/200915265.pdf; http://www.noncompetenews.com/file.axd?file=2011%2f1%2fUS+v.+Rodriguez.pdf [enhanced lexis.com version].
Rodriguez, a Social Security Agency employee, ignored his employer’s written policy and used information to search for information about people he knew and women he wanted to court. That misbehavior resulted in a court experience of a criminal conviction. Here is what the 11th Circuit Court of Appeals wrote about it interpretation of the CFAA:
The Act defines the phrase “exceeds authorized access” as “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accessed is not entitled to obtain or alter.” The policy of the [Social Security] Administration is that use of databases to obtain personal information is authorized only when done for business reasons. Rodriguez conceded at trial that his access of the victims’ personal information was not in furtherance of his duties as a TeleServices representative and that “he did access things that were unauthorized.” In light of this record, the plain language of the Act forecloses any argument that Rodriguez did not exceed his authorized access.
So, as far as the Eleventh Circuit Court of Appeals is concerned, the CFAA means what it states in plain language.
Title VII: gender, hostile work environment, retaliation; evidence, McDonnell Douglas test or mixed-motive test
Illustrative; not controlling law, but published by the court as possible persuasive authority. This case was lost by the plaintiff on summary judgment (i.e., a ruling as a matter of law because there was no genuine issue of material fact). That judgment was affirmed by the appellate court. Because the facts, procedure and evidence primarily will be of interest to trial attorneys, this brief limits itself to setting forth key legal concepts as a review of the law generally. If you want to read the extensive factual details, go to the URL link in the case citation. Brantley v. Unified School District No. 500, No. 09-3207 (10th Cir., 12/16/10); 2010 U.S. App. LEXIS 25670; http://www.ca10.uscourts.gov/opinions/09/09-3207.pdf [enhanced lexis.com version].
Title VII retaliation legal factors:
It is unlawful "for an employer" to retaliate against an employee who has "opposed any practice made an unlawful employment practice by [Title VII]." 42 U.S.C. § 2000e-3(a). To prevail on a Title VII retaliation claim, plaintiffs must establish "that retaliation played a part in [*8] the employment decision." Fye vCorp. Comm., 516 F.3d 1217, 1224 (10th Cir. 2008).
Plaintiffs may choose one of two ways to meet this burden. They may rely on the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), "under which the plaintiff bears the initial burden of establishing a prima facie case of discrimination. If the defendant is [then] able to articulate a legitimate nondiscriminatory reason for the adverse action, the plaintiff must then show that the articulated reasons are a pretext for retaliation." Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 549-50 (10th Cir. 1999).
Plaintiffs may also choose, however, to show retaliatory animus directly, "in which case the McDonnell Douglas framework is inapplicable." Id. at 550 (citing Greene v. Safeway Stores, Inc., 98 F.3d 554, 557-58, 560 (10th Cir. 1996)). This direct method is often referred to as the "mixed-motive" theory.n2 To succeed, plaintiffs must first directly show "retaliation played a motivating part in the employment decision at issue. Fye, 516 F.3d at 1226. Once plaintiffs meet that burden, "the burden of persuasion shifts to the defendant to prove that it would have taken the [*9] same action absent the retaliatory motive." Fye, 516 F.3d at 1225.
Due process legal factors:
Brantley also alleges Unified violated his property rights without due process of law.
As a public employee, Brantley is entitled to due process if he can show his reassignment implicates a property interest protected by the Due Process Clause. Calhoun v. Gaines, 982 F.2d 1470, 1476-77 (10th Cir. 1992). When determining whether an individual "has been deprived of his right to procedural due process, courts must engage in a two-step inquiry: (1) did the individual possess a protected interest such that the due process protections were applicable; [*17] and if so, then (2) was the individual afforded an appropriate level of process." Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir. 1994).
Having thoroughly examined the facts and law, the appellate court upheld the determination of the trial court that the plaintiff did not have a legally sufficient case against his employer.
Whistleblowing; OSHA: protected activity, civility and respect required; retaliation claim; employee lost
Illustrative; not controlling law. Employers are entitled to maintain reasonable standards of order, civil behavior and respect in their workplace. The employee was an experienced truck driver who became enraged, spoke louder and louder and more vehemently, and ultimately pushed his supervisor while complaining about the condition of a truck that had been assigned to him – to the point that other employees ran to the supervisor’s office to see if the supervisor needed help. The employee’s claims of discrimination for whistleblowing and retaliation for complaining and for calling OSHA were rejected because it was his outrageous behavior that was the reason for terminating his employment. That was the finding of the Administrative Law Judge (ALJ), the OSHA Administrative Review Board, and the Seventh Circuit Court of Appeals. Formella v. U.S. Dep’t of Labor and Schnidt Cartage, Inc., No. 09-2296 (7th Cir., 12/10/10); 2010 U.S. App. LEXIS 25203; http://www.ca7.uscourts.gov/tmp/4B0NLAG2.pdf [enhanced lexis.com version].
Unions: health care workers, picketing as distinguished from striking, non-union healthcare workers fired for participating
Limited controlling authority, but an important case for health care employers to read and discuss with their employment attorney. Correctional Medical Services, Inc., 356 N.L.R.B. No. 48 (12/9/10); http://www.nlrb.gov/shared_files/Board%20Decisions/356/v35648.pdf [enhanced lexis.com version]. Also read the Ogletree Deakins law firm article at: http://www.employmentlawmatters.net/2010/12/articles/nlra/firing-of-nonunion-healthcare-workers-for-joining-union-picketing-violated-nlra-even-though-unions-picketing-was-illegal/.
ADA: requested accommodation must enable the employee to perform the essential functions of the job
Illustrative; not controlling law. A qualified individual means one who with or without a reasonable accommodation can perform the essential functions of a job. Understandably, if the accommodation requested by an employee claiming a disability doesn’t accomplish that result, then there is no violation of the ADA. [Note: Conducting an adequate interactive discussion and exploration is a good practice in such situations.]
Jakubowski v. Christ Hosp. Inc., No. 09-4097 (6th Cir., 12/8/10); 2010 U.S. App. LEXIS 24997; 2010 FED App. 0369P; http://www.ca6.uscourts.gov/opinions.pdf/10a0369p-06.pdf [enhanced lexis.com version].
A medical resident, Martin Jakubowksi, scored poorly in competency test and otherwise also received poor performance reviews, and his employment was terminated.


  • He claimed his Asperger’s syndrome caused:

    • poor scores on an emotional intelligence exam and

    • an evaluation as being deficient in self-awareness, social competence, and relationship management.

  • Further, one attending physician observed that

    • he had poor organizational skills, skipped standard procedures in his examinations, and

    • performed procedures incorrectly.

  • Finally, though he never caused actual harm to any patient during his residency, his supervising physicians noted

    • his inability to communicate effectively with nurses, and

    • that at time he made unclear orders made for medication and treatment of patients.

The accommodation requested in a letter from his attorney was that the hospital increase the “knowledge and understanding” about Asperger’s syndrome of the physicians and nurses working with Jakubowski [Note: Though that might help to identify his condition, it would not improve his performance as a physician, which is essential to the wellbeing of patients]. The hospital responded that it did not have sufficient resources to comply with the proposal by Jakubowski, but offered to help him in finding a residency in pathology, a field that required little or no patient interaction.


His ADA claim was dismissed by summary judgment in the trial court and the appellate court affirmed that dismissal because Jakubowksi was unable to prove that he was “otherwise qualified” to successfully complete his residency because his proposed accommodation did not directly improve his ability to communicate with co-workers and patients.
FMLA: attendance, repeated violations of company call-in policy, termination, no FMLA violation
Thompson v. CenturyTel of Central Arkansas, LLC, No. 09-3602, ,(8th Cir., 12/3/10); 2010 U.S. App. LEXIS 24796; http://www.ca8.uscourts.gov/opns/opFrame.html [enhanced lexis.com version].
Illustrative; not controlling law. The company had a clear, written, understandable, widely disseminated, and consistently enforced attendance policy, which the discharged employee had received each year of her employment. Thus, termination of her employment was upheld because FMLA regulations specifically provide that an employer may require an employee on FMLA leave to “report periodically on the employee’s status and intent to return to work.”

Unions: pre-recognition, organization of employees not represented, neutrality agreements, card check and neutrality agreements


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