Human resources & employment law cumulative case briefs
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Controlling law. Perhaps too often essential functions are considered to be those performed daily, weekly or regularly. However, some essential functions that seldom need to be performed can still be critically essential when a rare situation arises. For example, occasionally a police officer may need to fire a weapon, and then good marksmanship is essential - it may not happen often, but when it does, being a good shot is definitely essential. In this case a physician's assistant (PA) working in intimate contact with prison inmates might on rare occasions need to be physically able to take appropriate action if violence occurs. Our Tenth Circuit Court of Appeals tends to give strong consideration to an employer's judgment of what is an essential function. With that in mind, employers need to be able to substantiate their judgment and to have solid documentary evidence supporting how they reached that decision. Hennigar v. Utah Dep't of Corrections, No. 08-4087 (10th Cir., 9/10/09); 2009 U.S. App. LEXIS 20163 (10th Cir., 9/10/09) [enhanced lexis.com version]. Barbara Hennigar worked for the Department of Corrections (DOC) as a PA. The DOC decided it wanted its medical and clinical personnel working in intimate contact with prison inmates to be in the public safety retirement (PSR) system PSR informed DOC that only employees meeting Utah's peace officer standards (POST) qualified for PSR. Hennigar suffered from medical conditions that included lupus, osteoarthritis, rheumatism, avascular necrosis and fibromyalgia that restricted her ability to run, climb stairs, flex, sit, lift and bend. Because if this she was not physically able to meet POST requirements. DOC offered her the ADA accommodation of transferring to another facility where she could function as a PA and not have to meet POST requirements. She was informed that if she refused the transfer her employment would be terminated. She refused and filed a grievance on the grounds that termination was a threat and was harassment based on her disabilities. She continued to refuse that transfer offer and other transfer offers. Essential function claim: Proof of such a claim requires that she show that (1) she had an ADA disability, (2) she was qualified to perform the essential functions of her job with or without reasonable accommodation and (3) she suffered discrimination because of her disability. Factors courts consider may be: - the judgment of the employer about what are essential functions, - written job descriptions [make sure they are accurate], - how much time is spent on each function, - the effect of on the position of not requiring functions to be performed, - work experiences of employees in the same or similar jobs. She offered these points: - the POST requirements weren't required at her location when she was hired, - for years she had successfully performed without POST qualifications, and - POST qualifications were necessary only to qualify for PSR benefits. The Tenth Circuit rejected that on the grounds that "the ADA does not limit an employer's ability to establish or change the content, nature, or functions of a job." Further, the court added that the question of whether a job function is essential is determined at the time when it is imposed. Of importance to the appellate court was the DOC manager's judgment the POST certification was essential if and inmate might possibly physical attack a health care provider. DOC evidence showed that had happened a few years earlier when a medical technician was performing her duties. Consequences of such an attack can be severe, noted the court, and thus it is reasonable for the DOC to require POST certification. Reasonable accommodation claim: She claimed she ought to have been "grandfathered" in or had her job description changed. The appellate court found that amounted to changing the job or creating one for her, which the ADA does not require. Thus, her proposed accommodations were found to be unreasonable. Retaliation claim: She had to prove she had suffered an adverse employment action, but the appellate court found it was not an action that would tend to dissuade a reasonable worker from claiming discrimination. Timing is also critical to proving a retaliation charge, and the appellate court found that filing a grievance several months after the events was too long to prove a causal connection between the events and the employment action Title VII: sexual harassment, hostile work environments, continuing series of unwelcome events Illustrative; not controlling law because it is a district court decision that binds only the parties to the litigation. Nonetheless, the reasoning applied to the events might be persuasive to other courts. Loya v. Wal-Mart Store East, L.P., No. CIV 08-0278 RB/CEG (D.N.M., 7/27/09) [enhanced lexis.com version] Here's where you can read the federal trial judges' detailed order setting forth the chronology: http://hr.cch.com/cases/Loya.pdf. Privacy: employee private website, invitation only, questionable permission from employee for manager to use her password, repeated access by management Instructive; not controlling law. Though this is a New Jersey federal district court case unpublished opinion, it is worth knowing about as a caution of how far an employer may go, and probably not go, to check on Internet activities of its employees. Pietrylo v. Hillstone Restaurant Group d/b/a Houston's, D.N.J., No. 06-5754 (unpublished, 9/25/09); Internet: http://www.employerlawreport.com/uploads/file/PIETRYLO%20v%20%20HILLSIDE%20RESTAURANT.pdf [enhanced lexis.com version]. Outline: -Some Houston employees had a MySpace chat group, "Spec-Tator", that Pietrylo maintained during times when he was not at work, and access could only be by an electronic invitation from him. - No company equipment or employee work time was involved. - A chat group member informed a manager of the existence of the site. - Site language stated that the group was private. - A managers asked the informant for her password, which she gave him. [One issue at trial was whether she did this voluntarily, and her testimony was that she felt that she "would have gotten in trouble" if she hadn't provided her password, i.e., indicating coercion. Note that there was no company documentation of authorization by the employee allowing the password to be used - and that still might have left an issue of coercion.] - Managers accessed the site on several separate occasions. - Management found the language offensive, and firings followed. Pietrylo and another employee sued under the federal Stored Communications Act (SCA) and the New Jersey Wiretapping and Electronic Surveillance Control Act. They won compensatory and punitive damages, which the trial court upheld. Check this site for additional information on applicable law: http://www.digitalmedialawyerblog.com/2009/08/employer_access_of_employee_di.html. Title VII: sex, gender, harassment, hostile work environment, severity and/or pervasiveness, "constructive notice" of workplace problem, evidence of other complaints, probative value, integrated enterprise, interrelation of parent and subsidiary operations, common management, centralized control of labor relations, and common ownership or financial control Illustrative; not controlling law. This is a complex problem, as can be seen from the many facets of the court's discussion and the considerations pointed out by the dissenting opinion. This case involved a parent company (parent) and one of its subsidiary companies (subsidiary). Parent had approximately 100,000 employees and operations were conducted in about 400 locations. Sandoval v. American Bldg. Maintenance Indus., No. 08-2271, 578 F.3d 787 (8th Cir. 8/26/09); 2009 U.S. App. LEXIS 19197; 107 Fair Empl. Prac. Cas. (BNA) 38 [enhanced lexis.com version]. Liability of parent: Should a parent company be liable for the actions of a subsidiary? As a practical matter, are related, though distinct, companies significantly enough interrelated that for Title VII purposes they ought to be treated as one company? Are the two operations essentially an "integrated enterprise"? The 8th Circuit ruled that a parent company could be found to employ its subsidiary's employees if either: - the parent company sufficiently dominates the subsidiary's operations to the extent that the two are one entity and therefore one employer, or - the parent company could be linked to the alleged discriminatory action because it controls individual employment decisions.
- there were officers in common (Chief Executive Officer and Chief Financial Officer, among others), - the parent company owned all of the subsidiary's stock, and - the subsidiary's labor relations were under the parent company's centralized control. Harassment: Now the, what about evidence of other harassment, known or unknown? The 8th Circuit court stated, known or unknown, that kind of evidence is "highly probative of the type of workplace environment [the plaintiff] is subjected to, and whether a reasonable employer should have discovered the sexual harassment." Thus, such evidence should be considered by a judge or jury when trying the facts. The dissenting judge thought that was a troublesome problem in situations involving complaints distant, different locations, in this case about 400 of them. [Note: Because this case is not controlling law in our 10th Circuit jurisdiction, that factual issue of whether a parent company should be on "constructive notice", i.e., "knew or should have known", has not been decided here.] As a review of what constitutes "hostile work environment", read this quote for the United State Supreme Court Case of Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 140 L. Ed. 2d 201, 118 S. Ct. 998 (1998) [enhanced lexis.com version]. A hostile work environment exists if the workplace is "permeated with discriminatory intimidation, ridicule, and insult [*11] that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 126 L. Ed. 2d 295, 114 S. Ct. 367 (1993) (internal citation and quotation omitted). The conduct in question must be judged by both a subjective and an objective standard. See id. To determine whether an environment is hostile, courts must look at all the circumstances, including the "frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Faragher v. Boca Raton, 524 U.S. 775, 787-88, 141 L. Ed. 2d 662, 118 S. Ct. 2275 (1998) (internal quotation and citation omitted) [Note: After some further consideration about the dissent, perhaps there is little difference between this case and one involving a very large corporation. More importantly, though, no matter what the size of a company, training of all employees at all levels about harassment is essential.] Title VII: sex stereotyping Illustrative; but this would be covered in our jurisdiction by the controlling law of the NM Human Rights Act. This case prohibits an employer from discriminating against applicants or employees it thinks do not conform with gender stereotypes, i.e., how we think people should look, talk, act, etc.. Prowel v. Wise Business Forms, Inc., No. 07-3997 (3d Cir., 8/28/09); 2009 U.S. App. LEXIS 19350; 107 Fair Empl. Prac. Cas. (BNA) 1; Internet: http://www.ca3.uscourts.gov/opinarch/073997p.pdf [enhanced lexis.com version]. As you will recall, the NM Human Rights Act covers employers of 15 or more employees as follows: § 28-1-2, subsections: P. "sexual orientation" means heterosexuality, homosexuality or bisexuality, whether actual or perceived; and Q. "gender identity" means a person's self-perception, or perception of that person by another, of the person's identity as a male or female based upon the person's appearance, behavior or physical characteristics that are in accord with or opposed to the person's physical anatomy, chromosomal sex or sex at birth. Title VII: whistleblower, reporting sexual affair, retaliation
- engaged in a protected opposition to prohibited discrimination, - suffered an employment action a reasonable employee would find significantly adverse, and - there was a causal connection between the protected activity and the adverse action. An earlier case, Taken v.Corp. Comm.'n, 125 F.3d 1366 (10th Cir., 1977) [enhanced lexis.com version] was cited by the 10th Circuit Court of Appeals in its decision against Anderson in rejecting his claim . . . "preferential treatment on the basis of a consensual romantic relationship between a supervisor and an employee is not gender-based discrimination." Further, that case ruled that Title VII's reference to "sex" means a class delineated by gender rather than sexual affiliations, and rejected a Title VII discrimination claim based on allegations that a supervisor chose his mistress for promotion because of their romantic relationship. For that reason, Anderson also lost his discrimination case. NM Public Employee Bargaining Act: arbitration, award, availability of funds; statutory construction, NMSA §§ 10-7E-18(B) and -17(E) Controlling law; however, for the most part the facts and statutory provisions involved are specific to the parties involved. Generally, though, the decision is that under the PEBA an arbitration award requiring a public employer other than the state to expend funds is contingent upon the appropriation and availability of funds. International association of Fire fighters, Local 1687 v. City of Carlsbad, 2009-NMCA-097, cert. den. No. 31,833, July 30, 2009; Internet full text: http://www.nmcompcomm.us/nmcases/NMCA/2009/09ca-097.pdf [enhanced lexis.com version]. FMLA and ADA: disability, intermittent leave, reasonable accommodation, absence caused by disability Illustrative; not controlling law. As you know, cases from outside of our 10th Circuit of Appeals jurisdiction are not binding law here; also, district trial court decisions are not binding authority other than for the parties involved in that particular case (no matter what jurisdiction). However, a well-reasoned case may have persuasive value in the future for our courts, and paying heed to such a decision may be good business practice. Two key points in this Oregon federal district court are (1) the difficulties in managing workers with chronic conditions who require intermittent leave as an accommodation and (2) in the ninth circuit employers are prohibited from taking adverse employment action against an employee for conduct that may be caused by a disability. Accordingly, it is probably a good practice for employers to with competent human resources and employment law counsel with counsel about most appropriate response for requests for leave and other accommodations [Note: See Gambini v. Total Renal Care, Inc., 486 F.3d 1087, 1093, 19 AD Cases 344 (9th Cir. 2007) briefed earlier in this database]. The current case briefed here is Waters v. Fred Meyer Stores Inc., 22 A.D. (BNA) Cases 436 (D. Or. 2009); more detailed article from Jackson Lewis law firm on the Internet at: http://www.jacksonlewis.com/legalupdates/article.cfm?aid=1865. This employer counted absences from intermittent leave caused by the employee's disability of narcolepsy. The employer filed a motion for summary judgment [i.e., dismissal without trial] and the federal trial judge denied it because that could be an interference with FMLA rights and a failure under the ADA to reasonably accommodate a disability. This does not mean that the employee won the case because the issues to be tried were (1) was the employer's application of it absenteeism policy a pretext for discriminating against the disabled employee and (2) could the employer have reasonably accommodated the absences. Waters suffered from narcolepsy and needed to take intermittent leave. The employer had a policy prohibiting excessive absence from work. The facts are extensive and complex, which is why I refer you to the article or the actual reported decision because briefing may leave out an important matter, and a detailed description would essentially be a repeat of this well written article. Many issues are involved: - Was this an ADA case. i.e., did her narcolepsy, headaches and fatigue qualify as substantially limiting a major life activity? - Were her absences related to her narcolepsy? - Was this an FMLA case? - Was the medical information supplied sufficient? - Did the phone calls from the employee provide sufficient notice to the employer of possible ADA and FMLA issues? - Should the employer have followed up to gather more medical evidence and expert medical opinion on those issues? - Should the employee have been charged with the absences pending sorting out the issues and gathering more information? FMLA: request, no leave taken, fired, retaliation
2009 U.S. App. LEXIS 20979; Internet: http://www.ca3.uscourts.gov/opinarch/073796p.pdf [enhanced lexis.com version]. Title VII: gender, police promotion denied, arguably better qualified, discriminatory atmosphere
- That claim by the department was untrue because her scores were actually higher; - Comments by male officers and command staff were: - degrading remarks about women, and - expressions of opinion that females would never be promoted to command positions provided additional evidence of pretext. - Additional evidence of a discriminatory atmosphere included: - a lieutenant's distribution of preferable shift assignments to males, - choice of what extra-duty assignments they would get, and not giving the same choice to females. The appellate court majority said "[M]anagement's consideration of an impermissible factor in one context may support the inference that the impermissible factor entered the decisionmaking process in another context." Risch v. Royal Oak Police Dept., No. 08-1883 (6th Cir., 9/23/09); 2009 U.S. App. LEXIS 20980; 2009 FED App. 0342P (6th Cir.); http://www.ca6.uscourts.gov/opinions.pdf/09a0342p-06.pdf [enhanced lexis.com version]. Title VII: termination, lying, severity, first offense; alleged disparate treatment Illustrative; not controlling law. How severe must misconduct and violation of policy be to warrant immediate termination? Employee meal breaks were limited by company policy to 30 minutes, and lying is a serious enough offense for immediate discharge. In this case employees took 45 minutes. When questioned, four of the five employees lied by denying they had taken a meal break. The fifth employee, a Hispanic male, had told the truth. The liars were discharged, but the honest employee was not. On appeal, the court rejected the disparate treatment claim of the discharged employees on the ground that the honest employee was similarly situated, but he was not fired because he told the truth and did not violate company policy against lying. Thus there was no "reverse discrimination". Antonetti v. Abbott Laboratories, No. 08-1647, 563 F3d 587 (7th Cir., 4/21/09); 2009 U.S. App. LEXIS 8254; 106 Fair Empl. Prac. Cas. (BNA) 17;92 Empl. Prac. Dec. (CCH) P43,533 [enhanced lexis.com version]. ADEA: human resources functions outsourced to third-party provider, third-party discrimination Illustrative; not controlling law. If an employer contracts out certain functions relating to its usual functions, it may well be liable for the actions of the independent contractor, so be sure that your independent contractor is knowledgeable and competent. In this case, the third-party human resources contractor told an applicant he was "too old" for the job. The employer argued that it was not responsible for the acts of the independent human resources service provider. Potential liability in this instance depended on whether the independent contractor was hiring the applicant to work for him as a fellow independent broker, or rather was making the hiring decision for the actual employer as its agent. It has long been settled law in general that a principal (here, the employer) is liable for the acts of its agent (the third-party human resources person) for acts within the scope of the duties of the agent being performed on behalf of the principal. Halpert v. Manhattan Apartments, Inc., No. 07-4074-cv, (2nd Cir., 9/10/09); 2009 U.S. App. LEXIS 20156 [enhanced lexis.com version]. Lily Ledbetter Fair Pay Act: retroactive claim, Fair Pay Act violation, time for filing, gender and age discrimination Illustrative; not controlling law [a district court ruling has limited precedential value, and its value generally is limited to persuasive reasoning]. As you will recall, the Ledbetter legislation allowed discrimination claims to be filed for discrimination violations occurring before the 300 (or in some jurisdictions, the 180 day cutoff) for claims. This female claimant discovered after about three years that she had been paid about $7,000 less than a comparable male manager, and the employer did not respond to her request to make up the difference. At trial the district court dismissed her claim [Note: Ledbetter was not enacted at that time.] By the time the case was on appeal, Ledbeter had been enacted and the appellate court allowed her claim to go forward because she had filed with in the EEOC time limit of 300 days. Mikula v. Allegheny County, (3rd Cir. Sept. 10, 2009); 2009 U.S. App. LEXIS 20217 [enhanced lexis.com version]. Lily Ledbetter Fair Pay Act: pension benefits, retroactive claim, age discrimination Illustrative; not controlling law. As you will recall, the Ledbetter legislation allowed discrimination claims to be filed for discrimination violations occurring before the 300 (or in some jurisdictions, the 180 day cutoff for claims). Benefits were at issue here. The employer contended that his age discrimination claim was untimely, plus he was not yet retired and entitled to the affected pension benefits. The district court ruled that the claimant was adversely affected by the employer's decision to change his benefit accrual rate each time he received a credit toward his pension benefit, and thus because he had filed his EEOC charge within 300 days of receiving an allegedly discriminatory credit toward his pension benefit his claim was timely under the Ledbetter Act. Tomlinson v. El Paso Corp., 2010 U.S. Dist. LEXIS 74903 (D. Aug. 28, 2009) [enhanced lexis.com version]. Title VII: notice requirements, statute of limitations, equitable tolling Illustrative; not controlling law [a district court ruling has limited precedential value, and its value generally is limited to persuasive reasoning]. We don't know what the Second Circuit Court of Appeals and/or the United States Supreme Court might rule in this case. However, this case illustrates the importance of meeting requirements and how doing that is far less expensive and time consuming than litigating such an issue. Title VII requires notices of important rights and duties under the act to be communicated adequately and in an accessible format. One of the requirements is that notices must be prepared by or approved by the EEOC and conspicuously posted in the same place where other employee notices are customarily maintained. N most instances, the limitations period for filing a claim is 300 days. This employee filed her claim of discrimination based on her race, sex and/or national origin 364 days after the event or events. Her employer moved for dismissal because her filing was untimely. Here response to that was the doctrine of equitable tolling applies because her employer had not posted the required notice and she was unaware of the limitation until she consulted a lawyer. "Equitable tolling" essentially means that it would be unfair for the employer to raise the defense that her claim was filed late when she was not properly notified by her employer of the time limit. The federal trial court agreed with her and allowed her case to proceed. Wei Hong Zheng, et. al., v. Wong, et. al., 2009 U.S. Dist. LEXIS 74891 (E.D.N.Y. August 24, 2009) [enhanced lexis.com version]. Title VII: national origin, color, Native American employee, American Indian Health Clinic; hostile work environment defined, severe and pervasive, looking too white; employee misconduct, adverse employment action; retaliation Download 5.55 Mb. Share with your friends:
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