Human resources & employment law cumulative case briefs
Download 5.55 Mb.
|
- Navigate this page:
- Controlling law.
- First Amendment: county employees, freedom of speech, political activity, timing Title VII and ADEA: termination for valid business reason, McDonnell Douglas test
- Controlling law
{3} Employee sued Employer, bringing claims for breach of an implied contract of employment and for violation of the implied covenant of good faith and fair dealing, among other claims. Employee believed that he was not terminated because of inadequate job performance or as a cost-cutting measure, but instead because of interpersonal difficulties he had with a superior at work and a contractor who was a friend of the superior. The district court granted summary judgment in favor of Employer. After these two introductory paragraphs come lengthy paragraphs 4 through 28, which discuss numerous important concepts of New Mexico employment law and outline them for the trial court. The New Mexico Supreme Court reviewed Court of Appeals opinion and decision [the certiorari process] and did not modify the ruling of the Court of Appeals. Accordingly, the case was returned to the Court of Appeals, which then remanded it to the trial court to allow the parties to fully present their theories and evidence to a jury to hear and weigh the evidence and testimony and decide on the credibility of the parties' contentions. [Note: No telling who may win, but it would have been less expensive for the employer to have proceeded more adequately in the first place.] ADEA: exception for law enforcement officers and firefighters Controlling law. 29 USC §623(j)(1)(A) provides that a local government can lawfully refuse to hire a person for a law enforcement position on the basis of age, if:
[Note: The NM Human Rights Act has a similar provision for a “bona fide occupational qualification”.] The totality of circumstances was important in this case, especially the timing, so read the entire case for the details. Kannady v. City of Kiowa, No. 07-7002 (10th Cir., 1/6/10); 2010 U.S. App. LEXIS 229; http://www.ca10.uscourts.gov/opinions/07/07-7002.pdf [enhanced lexis.com version]. OSHA, Sarbanes-Oxley, SOX: Illustrative: not controlling law. A whistleblower who lost in an administrative hearing is entitled to a de novo review [i.e., court reviews the case anew] in federal court. Stone v. Instrumentation Laboratory Co., No. 08-2196 (4th Cir., 12/31/09); 2009 U.S. App. LEXIS 28765; http://pacer.ca4.uscourts.gov/opinion.pdf/081970.P.pdf [enhanced lexis.com version]. ADA: concern of potential violence, bipolar disorder, legitimate business reason, not discrimination; evidence, McDonnell Douglas test, pretext Illustrative; not controlling law. This case is a reminder that under appropriate circumstances an employee may be terminated for dangerous behavior [not for the disability itself] reasonably anticipated as potentially dangerous. The important factors here included: - the high security workplace and - the written company policies related to company computers; plus - the company was unaware of the employee’s impairment until after its initial adverse employment action. Caution: Best practices dictate that employers should approach matters related to medical and psychological impairments on a case-by-case basis with expert medical and related experts to assure compliance with both state and federal laws. Calandriello v. Tennessee Processing Ctr., No. 3:08-1099, (M.D. Tenn., 12//15/09); [Note: Previous federal appellate decisions cited in this case: http://www.employmentlawmatters.net/uploads/file/Calandriello%20-%20MD%20Tenn%20-%20121509%20-%20psych.pdf.] [enhanced lexis.com version]. A purpose of the ADA is to prohibit discrimination against applicants or employees based on perceptions of a person’s disability, i.e., to overcome biases, prejudices and stereotypes. However, an employer may take adverse employment action against an employee based a legitimate business reason if it is not a pretext for discriminatory action. Allmond v. Akal Sec., Inc., 588 F.3d 1312, 1317 n.7 (11th Cir. 2009)(citation omitted): “neither the ADA nor the Rehabilitation Act requires employers to forgo a qualification standard ‘until a perceived threat becomes real or questionable behavior results in injuries’”). As one court explained: . . . But if an employer fires an employee because of the employee's unacceptable behavior, the fact that that behavior was precipitated by a mental illness does not present an issue under the Americans with Disabilities Act. . . . The Act does not require an employer to retain a potentially violent employee. Such a requirement would place the employer on a razor's edge-in jeopardy of violating the Act if it fired such an employee, yet in jeopardy of being deemed negligent if it retained him and he hurt someone. Palmer v. Circuit Court of Cook County, Ill., 117 F.3d 351, 352 (7th Cir. 1997) (internal citations omitted) [enhanced lexis.com version]. The plaintiff, Robert Calandriello, admitted he suffered from bipolar disorder. His employer, Tennessee Processing Ctr., processed business data on which U.S. government stock and wire transfers were based. As such TPC operated under certain security protections including FBI record checks for employees, a gated facility, and retinal scans for employee access. Calandriello came to TPS’s attention after he altered a company poster by adding an image of Charles Manson. He admitted during the disciplinary process that this was a poor choice in displaying the poster and for the firsts time in his employment he informed the company that he suffered from bipolar disorder, which he alleged caused this problem. Further investigation revealed he had viewed online images of violence, assault weapons, and serial killers on his company computer. TPC was concerned that his continuing as an employee involved a realistic risk of violence in the workplace. Calandriello argued that he had not destroyed company property, threatened anyone in the workplace, or caused financial loss to the company, and thus he should be exempt from disciplinary action because he was entitled to “accommodation” under the ADA. He also argued that weapons were a regular part of conversation in the TPC workplace. He was terminated because TPC had lost confidence in him and that he posed a potential risk of harm, and he was fired for those reasons. He sued for disability discrimination under the state’s anti-discrimination statute. TPC moved for summary judgment, which the district court on the premise that the company had a legitimate business reason for discharging him, and that he was not fired for discriminatory reason. This is what is known as the McDonnell Douglas test: 1. An employee must make a threshold [prima facie] showing of discrimination. 2. Next, the employer must show a legitimate, nondiscriminatory reason for taking the action it did. 3. Finally, the burden shifts back to the employee to show that the employer's stated reason was a pretext for discrimination. In this instance, the trial court found in favor of TPC, holding that “fear of potential violence is a legitimate non-discriminatory reason for an adverse employment action,” including termination, and quoted a federal appellate court opinion that the ADA “does not require an employer to retain a potentially violent employee.” Further, it found that Calandriello had not provided evidence that TPC’s for the termination was simply a pretext for discrimination. It substantiated its reason by citing a written company policy specifically prohibiting employees from visiting internet sites that are “known to contain or are suspected of containing objectionable matter” including “profane or otherwise inflammatory material.” Illustrative; not controlling law. Choosing language carefully is a good idea. Standing alone, the "more energetic person", comment may not be enough to support an age discrimination case. Avoiding what may be considered a euphemism for age is prudent practice. This case is a close call, but defending against such a claim can be expensive. The context of the evidence for a jury to consider was: - company plan was to cut costs, increase profits, and resell the company in four or five years; - 17-year work history; - VP of technology; - member of "steering team" that was an executive committee managers consisting of the senior leadership of the company; - allegations by employer: - failure of technical leader to develop a plan to set measurable goals for his department, - refusal to support salary freeze endorsed by steering committee, and - harassing the human resources staff concerning a change in the company's health plan; - allegations by the employee: - replaced by a younger man, a the company manager of operations, - Michael Tubridy, president of KPA's North and South American Operations, during his during his termination meeting that he "did not fit the `profile' or `model' of what is needed in a technical leader in terms of KPA's presentation to potential buyers of the company." - Tubridy also stated that KPA needed a "more energetic person" as leader of the technical department. - Trubidy attended October 2005 meeting during which a management consultant suggested that KPA enlist young, energetic "future people." Tubridy noted the phrase "young, energ[etic]" on a paper napkin. - Inman had received bonuses every year and Tubridy even singled him out for praise at a company meeting just a few weeks before firing him. Inman v. Klockner Pentaplast of America, Inc., No. 08-1882, (4th Cir., 10/22/09); 2009 U.S. App. LEXIS 23291,*;107 Fair Empl. Prac. Cas. (BNA) 1032; http://pacer.ca4.uscourts.gov/opinion.pdf/081882.U.pdf [enhanced lexis.com version]. ADA: attendance, excessive absences, consistent application of policy, disparate treatment, essential function of position; McDonnell Douglas test, valid business purpose, no pretext Illustrative; not controlling law. Consistent application of agency or company policies can demonstrate the attendance is an essential function of the position and that adverse employment actions for violation of that policy is legitimate and not discriminatory. Documentary evidence of such policy and its consistent application and enforcement demonstrated the valid business purpose of the policy. Rios v. Dept. of Education, 2d Cir., No. 08-1262-cv, (2nd Cir., unpublished, 11/2/09) no additional citation available as of 12/29/09 [enhanced lexis.com version]. Title VII: hostile work environment, Ellerth/Faragher defense; employer's costs and fees denied Controlling law. The employer was found to have complied with the Ellerth/Faragher requirements and that the employee had not. The employer's request for cost and fees of litigation were denied because those are awarded only when a claim is clearly unfounded. Schmidt v. Medicalodges, Inc., Nos. 07-3347 & 07-3354, (10th Cir., 10/20/09); 2009 U.S.App. LEXIS 22935; 107 Fair Empl. Prac. Cas. (BNA) 1258; http://www.ca10.uscourts.gov/opinions/07/07-3347.pdf [enhanced lexis.com version]. Laura Schmidt, nurse, cared for elderly patients. Her immediate supervisor, Shawn Garbin was suspended and ultimately terminated after reports of sexually harassing another employee, Angela Mitchell. Shortly thereafter, Schmidt quit. Though she at no time during her employment complained of sexual harassment, after leaving she filed a claim alleging a hostile work environment based on the grounds that Medicalodges ought to be held liable for Garbin's behavior for failing to take sufficient action to either prevent or remedy Garbin's actions. To review, in order for an employer to be liable for sexual harassment by a supervisor, such as a hostile work environment, there must be proof that the employer allowed the workplace to be permeated with severe and/or pervasive discriminatory intimidation, ridicule or insult based on sex. The Ellerth/Faragher cases provide for an employer's defense: 1) that it exercised reasonable care to prevent and promptly correct sexually harassing behavior, and also 2) that the complaining employee failed to take advantage of any preventive or corrective measures or opportunities provided by the employer. Essentially, that means that the employer did what it could to provide a workplace for its employees safe from harassment and an employee must report and take advantage of those measures providing for a workplace free of harassment. In short, a claimant must alert the employer of a problem and cannot sit on her rights. First, the appellate court found that the employer had exercised reasonable care to prevent and promptly correct any such behavior, despite that fact that there was sharply conflicting evidence. It is very important to recognize what appellate court pointed out: the role and duty of the jury is to assess the credibility of the witnesses and determine the weight to be given to their testimony and that is not the role and duty of the court unless the jury's verdict was "overwhelmingly against the weight of the evidence." [Note: This is the fundamental, historical role and duty of jurors.] Second, there was the issue of whether Schmidt took advantage of Medicalodges' preventive measures. Her contention of why she had not filed a timely internal complaint was that she feared retaliation, and that reporting would have been futile. Medicalodges countered by showing its anti-retaliation policies. The appellate court noted that Schmidt had previously reported Garbin for excessive profanity and apparently had not feared retaliation. Based on this, the jury found that though she was subjected to a hostile work environment, but they further found her employer was not liable because she had not followed company policy and procedure to report it. The jury found Medicalodges' anti-harassment policies were sufficient for training, prevention and correction and that her employer was not liable. Medicalodges' request for costs and attorney fees were denied, however, because of the nature and extent of conflicting evidence and testimony. United States Supreme Court precedent holds that an employer may only collect costs and fees if the claim is "frivolous, unreasonable, or groundless." ERISA: contractual time limitation barred claim Controlling law. This is a complex case that should be read carefully. Briefly, though: - ERISA doesn't have a provision for limitation of actions' it generally analogous state provisions. - At issue was the nature and extent of the employee's disability, i.e., unable to perform any work for two years and then whether able to performs some work after that. - Interpretation of a contract in such a case would be that of a reasonable person, not the specific person involved [Note: That is generally applicable throughout the law]. Salisbury v. Hartford Life and Accident Insurance Company, No. 08-3316, 583 F.3d 1245 (10th Cir., 9/30/09); 2009 U.S. App. LEXIS 21455; 47 Employee Benefits Cas. (BNA) 2580; http://www.ca10.uscourts.gov/opinions/08/08-3316.pdf [enhanced lexis.com version]. First Amendment: county employees, freedom of speech, political activity, timing Title VII and ADEA: termination for valid business reason, McDonnell Douglas test Controlling law. Termination for a valid business purpose was the reason, not discrimination. This is a case with specific factual details that needs to be read carefully, but the main factors are outlined below. Trujillo v. Huerfano County Board of County Comm'rs, No. 08-1486 (10th Cir., 10/19/09); 2009 U.S. App. LEXIS 22790; http://www.ca10.uscourts.gov/opinions/08/08-1486.pdf [enhanced lexis.com version]. William Trujillo and Ronald Cruz were foremen for the county, and the Road and Bridge Department was divided into three districts, each with its own foreman. Trujillo and Cruz were in two of the districts, and William Brunelli, classified as white male, was foreman in the third. Trujillo ran as a Democrat for county commissioner in the fall of 2004. He lost, but he and Cruz had supported another candidate running against Roget Cain, a Republican. This is important for a decision that was made about consolidating the three districts, which would affect the jobs of the three foremen. Brunelli Trujillo fired for safety incidents. Cruz remained employed with the county department but accumulated several unfavorable reports in his personnel file. Trujillo and Cruz claimed discrimination based on allegations freedom of speech denial and age and Title VII and age discrimination. These were rejected because the court found valid business reasons for the adverse employment actions taken against them. First Amendment: This, among other things, "protects public employees from discrimination based upon their political beliefs, affiliation, or non-affiliation unless their work requires political allegiance." The only evidence of discrimination Trujillo produced on this issue was that only three months had passed since the political campaign and the reorganization of the department, and the appellate court noted that "temporal proximity" is not enough in and of itself to establish political affiliation as the motivating factor for an adverse employment action. Further, a majority of the county board was affiliated with the Democrat party, the same as Trujillo. No evidence supported the contention that Cain, Republican, had any sway over the other board members. Title VII and ADEA, termination for valid business reasons: The McDonnell Douglas test, as you will recall is: 1. An employee must make a threshold [prima facie] showing of discrimination. 2. Next, the employer must show a legitimate, nondiscriminatory reason for taking the action it did. 3. Finally, the burden shifts back to the employee to show that the employer's stated reason was a pretext for discrimination. Though Trujillo and Cruz made a prima facie showing of discrimination, they failed on the second element and did not need to proceed on the third elements. The employer had a legitimate, justifiable, valid business reason for consolidating the three department districts: efficiency. As stated by the appellate court, the question before it wasn't whether the employer's proffered reasons were wise, fair, or correct, but whether the employer honestly believed those reasons and acted in good faith on those beliefs, and it found no evidence that the board didn't honestly believe reorganization of the department would improve efficiency. Additionally, Brunelli was better qualified than the other two. Team work is also important, and the other two often disagreed with him. Disparate treatment: Trujillo's contention of disparate treatment was rejected because he was fired for safety violations and he failed to prove that the other employees were "similarly situated, non-protected employees," which requires proof that they (1) dealt with the same supervisor, (2) were subject to the same performance and discipline standards, and (3) were in a different "class", such as a different race, age, or gender, etc. FLSA: professional exemption, academic requirements Illustrative; not controlling law. The Second Circuit Court of Appeals generally makes well-reasoned decisions, so this one may have considerable persuasive authority. In this case the employee was incorrectly classified as an exempt professional: Product Design Specialist II (PDS II). Applicants for that position were required to have 12 years of relevant experience, but no particular kind or amount of education, and no PDS II working for the employer had a college degree. Academic qualifications are an important requirement in order to be classified as exempt: - The employee's primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment; - The advanced knowledge must be in a field of science or learning; and - The advanced knowledge must be customarily acquired by a prolong course of specialized intellectual instruction. The employee was laid off in a reduction in force (RIF). He sued for having been improperly and willfully misclassified as an exempt professional, and thus was not fully paid for overtime hours worked. He won on summary judgment and the Second Circuit Court of Appeals affirmed it. It also affirmed the award of three years of back pay rather than the usual two years because the violation was willful. Young v. Cooper Cameron Corp., No. 08-5847, 586 F.3d 201 (2d Cir., 11/1209); http://www.ca2.uscourts.gov/decisions/isysquery/a5d3a480-ac93-4683-9e24-7d882c6431f5/1/doc/08-5847-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a5d3a480-ac93-4683-9e24-7d882c6431f5/1/hilite/ [enhanced lexis.com version]. Discovery: attorney client privilege, denial, immediate appeal under the collateral order doctrine Controlling law: The United States Supreme Court resolved the conflict among various circuits with its ruling that denying a claim of attorney-client during discovery is not an issue for interim appeal. The dispute involved a discovery order compelling an employer to disclose information related to a shift supervisor's interview with its outside counsel during an internal investigation into a separate RICO class action, as well as information related to the company's later decision to fire the employee. Writing for the majority, Justice Sotomayor stated: "Post judgment appeals, together with other review mechanisms, suffice to protect the rights of litigants and preserve the vitality of the attorney-client privilege." And "[p]ermitting parties to undertake successive, piecemeal appeals of all adverse attorney-client rulings would unduly delay the resolution of district court litigation and needlessly burden the Courts of Appeals." Mohawk Industries, Inc. v. Carpenter, No. 08-678, ____ U.S. ____, (12/8/09); 2009 U.S. LEXIS 8942; http://www.supremecourtus.gov/opinions/09pdf/08-678.pdf [enhanced lexis.com version]. Title VII: religion, newspaper editorial writers, "traditional Christians", workplace expressions, opposition to homosexual conduct, performance deficiencies; evidence, not similarly situated. Illustrative, not controlling law. Performance problems rather than religious beliefs were the actual reason for the employer's adverse employment actions. Two editors claimed they were victims of religious discrimination because the top editors of the newspaper took adverse employment actions against them because of their views on homosexual behavior. However, the appellate court found sufficient evidence that deficient performance was the reason for the adverse employment action rather than disparate treatment. - The first employee had a lengthy history of not meeting the newspaper's legitimate performance expectations: - that she repeatedly violated the employers overtime policies, and - the employer's decision to transfer her from editorial writing to writing copy was partially based on the newspaper's desire to monitor her more closely. - Also, she failed to identify a similarly situated employee who repeatedly violated the newspaper's overtime policy but did not hold her religious beliefs and was treated more favorably. - As for the second employee, the basic problem with his claim was that he could not establish that he was meeting the newspaper's legitimate performance expectations. Undisputed evidence showed that he had a long history of performance problems ranging from reporting errors to deficient writing abilities or skills. Further, that deficient performance continued after the newspaper placed him on a performance improvement plan. Finally, he produced no evidence to support his claim that he was worked harder than other editorial writers or that the newspaper's other editorial writers had more errors than he did. Indiana Newspapers, Inc., No. 08-2050, (7th Cir., 12/8/09); 2009 U.S. App. LEXIS 26692; http://www.ca7.uscourts.gov/tmp/TI0SSH6G.pdf [enhanced lexis.com version]. Title VII: age, deficient performance; summary judgment affirmed Illustrative, not controlling law. Performance problems rather than age were the actual reason for the employer's adverse employment action. Factors of performance deficiencies of importance to the appellate court were: - failure to be a team player, - failure to complete required paperwork, - failure to correct persistent tardiness, and - client complaints. Though he had a good sales record, that was not enough to overcome the performance deficiencies; a managers' success often depends on sales performance, but that may not be enough to outbalance other factors. He had, among other things worked on two major deals, but his participation was found to be tangential and not truly representative of top performance. Thus, the appellate court held that a reasonable jury could not conclude that his revenue performance outweighed performance deficiencies enough to raise an inference of pretext. Plus, the manager failed to show that any similar employees failed to complete paperwork, were consistently late or the subject of client or internal complaints so as to render suspicious any supposed distinctions in their treatment. Senske v. Sybase Inc., No. 09-1610 (7th Cir., 12/3/09); 2009 U.S. App. LEXIS 26254; http://www.ca7.uscourts.gov/tmp/TI0TPWDK.pdf [enhanced lexis.com version]. EPLI: Employment Practices Liability Insurance, excluded acts, coverage denied Download 5.55 Mb. Share with your friends:
|