Human resources & employment law cumulative case briefs
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- Controlling law
- Illustrative; not controlling law.
- WARNING: This case may be legislatively overruled by the Protecting Older Workers Against Discrimination Act (POWADA) working its way through congress as of this note on 9/8/09
- NM Human Relations Act
Controlling law. This opinion needs to be read carefully to grasp all of the details, but it essentially comes down to this: - Disparate treatment is intentional discrimination prohibited by Title VII. - Disparate impact is unintentional treatment, policies or practices that in fact disproportionately have an adverse effect or effects on persons protected by Title VII. This legal concept arose from case law and some 20 years after passage of Title VII it was added to the Act. Though the two concepts above seem in conflict, the United States Supreme Court ruled that the primary purpose of Title VII is prevention of discrimination, and the mere concern or fear of the city of New Haven that it might be sued for disparate treatment amounted to disparate treatment. Concern of that nature is insufficient to allow disparate treatment; only if the city had " . . . an objective, strong basis in evidence to find the tests inadequate . . ." might here have been a valid basis for concern of disparate impact liability. Once again, this opinion needs to be read carefully as well as discussed with legal and human resources experts to ensure that screening, testing and other evaluations related to the essential functions of the position(s) are essential because of valid business necessity. Studying both the reasoning process of the employer and the reasoning of the U.S. Supreme court are helpful in understanding situations that appear to put into conflict antidiscrimination restrictions on disparate treatment and disparate impact. Though these factors may not apply to all situations, adhering to them as a practical matter may be the safest way to avoid discrimination claims. Ricci v. DeStefano, Nos. 07-1428 and 08-328, ____U.S ____, (USSC, 6/29/09); 2009 U.S. LEXIS 4945; Internet URL for syllabus with links to the full text of the majority and minority opinions: http://supct.law.cornell.edu/supct/html/07-1428.ZS.html [enhanced lexis.com version]. Civil liability, torts: contractors and subcontractors relations, tortious interference with contractual relations (ICR), tortious interference with a prospective contractual relation (IPCR); at-will employment, chain of command jumped Controlling law: This case covers the torts of interference with contractual relations and with a prospective contractual relation. Reading the entire opinion is recommended [which is one reason why the Internet link is provided]. Zarr v. Washington Tru Solutions, L.L.C., No. 27,553 (NMCA, 4/1/09); 2009-NMCA-050 2009 N.M. App. LEXIS 20; Internet: http://www.nmcompcomm.us/nmcases/NMCA/2009/09ca-050.pdf [enhanced lexis.com version]. The players were: - a government contractor, Washington Tru Solutions, L.L.C. (WTS), - its subcontractor, NCI Information Systems, Inc. (NCI), and - Zarr, an NCI employee. Zarr oversaw NCI's expenditures and budget forecasts. Haug was WTC's chief executive at the DOE project site. Zarr and Haug apparently had a personality conflict and differed over NCI's budget projections. Rather than attempt to work things out between WTS and NCI, Zarr jumped the chain of command and expressed her concerns directly with DOE personnel. [Note: Almost invariably a bad approach unless there is an emergency of significant proportions.]. Zarr having bypassed Haug, and he asked that she be removed form the project. Though Zarr's performance was satisfactory with NCI, she was terminated because NCI had no other positions for her. At this point, reading the details of the applicable law becomes important for employers who either have or may have this kind of problem. In the interest of prevention and training, for any employer who might have this kind of situation arise it would be wise to review this case with legal counsel. Prevention and training almost always is preferable to attempting to fix a problem after it becomes a legal claim. Definitions of the torts of interference with contractual relations and of interference with a prospective contractual relation are stated in the opinion and are discussed in the context of the details of the case. Title VII: gender, sex, alleged subjective interview; value of adequate uniform interviewing process; rejection of statistical evidence Controlling law: This gender discrimination claim failed because the applicant for promotion was shown to have been less qualified for the position than other applicants, including another female, plus the application process was found to be reasonably objective, even in the problem-solving discussion segment. Turner v. Public Service Co. of Colorado, No. 07-1396 (10th Cir., 4/28/09); 2009 U.S. App. LEXIS 8970 (10th Cir. 2009); (10th Cir. 2009) [enhanced lexis.com version]. This was Turner's third application for the position. She claimed bias or prejudice because the interview panel was all male. In favor of the employers were these factors: - a standard written test to measure mechanical aptitude (essential to the job) for first level screening - 26 passed, - résumés screened for predetermined essential criteria such as relevant work experience and skills essential to the position for second level screening - 17 passed, - and finally an interview panel with four PSCC employees (applicant admitted she had not performed well) - Turner was one of two women passed. - the other woman was one of the six applicants offered a position, but she declined for personal reasons and another man was hired. Additionally: - Turner scored only 48.5 aggregate points compared with the other woman's 63.5. - subsequently other men and women were hired after the same type of screening and interviewing process. - Turner could not produce evidence of how men were favored over women by the process, and - her evidence of a gender harassment verdict over 20 years before was too old to be relevant, plus those managers were no longer with the company. Office of Federal Contract Compliance (OFCCP): government contractors, hospital, HMO contract, affirmative action, federal reporting
ADEA: evidence, disparate treatment, direct discrimination, mixed motives, “reasonable factor(s) other than age” (RFOA), burden of going forward, burden of proof, no shifting WARNING: This case may be legislatively overruled by the Protecting Older Workers Against Discrimination Act (POWADA) working its way through congress as of this note on 9/8/09. Also, be aware that in February 2010 the DOL issued proposed regulations on the definition of “reasonable factor other than age” (RFOA): http://edocket.access.gpo.gov/2010/2010-3126.htm. Controlling law: Mixed motives cases involve an adverse employment action based on more than one motive. ADEA cases involving disparate treatment now require that the employee must establish by a preponderance of evidence (i.e., more likely than not) that age was the one motivating factor of the decision. As a legal and practical matter, the burden of persuasion/proof does not shift to the employer to show that it would have taken the same action regardless of age. This is a major change from other discrimination cases that allow proof of disparate treatment to be that one of the classifications or categories protected by anti-discrimination statutes was a motivating factor in an adverse employment action. Gross v. FBL Fin. Servs., Inc., No. 08-441, ____ U.S. ____, 6/19/09); 2009 U.S. LEXIS 4535 [enhanced lexis.com version]. Title VII: team leaders not management, knowledge of harassment, insufficient for strict liability Illustrative; not controlling law. An employer cannot be held to know of harassment for Title VII purposes unless the person(s) with knowledge were actually managers. The appellate court stated that such knowledge may be imputed to an employer if it is "important to the employee's general managerial duties" or if "the employee is specifically employed to deal with sexual harassment." In this case, the two team leaders overseeing the production line work at a paper manufacturing plant did not qualify as "management level" employees. Further, the appellate court stated, "We clarify that mere supervisory authority over the performance of work assignments by other co-workers is not, by itself, sufficient to qualify an employee for management level status." Here, these team leaders merely were "employed to keep the machines working" and had n responsibility to "discover or to act upon knowledge or rumors of sexual harassment." Huston v. Procter & Gamble Paper Prods. Corp., No. 07-2799 (6/8/09); 2009 U.S. App. LEXIS 12437; Internet [enhanced lexis.com version]. Title VII: correction notice after EEOC claim filed, timing not suspicious, lack of knowledge Illustrative; not controlling law. Seven months after an EEOC chare was filed, the employer gave the employee a "Correction Notice" threatening immediate discharge unless the employee remedied the identified problems: the employee's manager claimed that the employee was spreading rumors about other employees and engaging in harassing behavior, and it related to events months after the EEOC claim was filed. The appellate court held that anti-discrimination laws do not insulate employees from discipline for violating work rules or engaging in disruptive behavior. Also and significantly, the manager who complained about the employee's conduct had no knowledge of the employee's EEOC claim at the time he made the complaint. Littleton v. Pilot Travel Ctrs., LLC, No. 08-1221 (8th Cir., 6/4/09); 2009 U.S. App. LEXIS 11959; Internet: http://www.ca8.uscourts.gov/opndir/09/06/081221P.pdf [enhanced lexis.com version]. ADA: medication combination, positive test results; accommodation, interactive process, refusal to retest; not qualifying disability Illustrative; not controlling law. Employers requiring drug testing for employment purposes should consider having a medical review officer to assess claims by applicants or employees that medications may caused false positive results. Making decisions in such situations without expert assistance can cause problem. Medical review officers, physicians who are trained to evaluate drug test results, can provide the employer with assurance should a lawsuit be filed against the employer in connection with a positive test result. An employment applicant tested positive for phencyclidine (PCP), and she was rejected. Retesting was refused by the detention center, so the applicant retested at her own expense and the result was negative. She requested a meeting with a detention center representative to - verify the validity of the first test, - accept the second test, or - make a similar accommodation, but that was refused. She contended that the combination of medications she was taking for sleep epilepsy and allergies had produced the false positive result. The detention center refused to retest and she was not hired. However, it suggested she reapply later. When she did she was refused an interview. Though the center suggested she later reapply, which she did, she was neither interviewed nor hired. Her ADA claim alleged failure to engage in an interactive accommodation process. The center contended it had not violated the ADA. Though the court "substantially agree[d]" with the detention center, it also found that the applicant failed to show that her sleep epilepsy qualified as a disability under the ADA, that is, a "physical or mental impairment that substantially limits one or more of the major life activities of an individual." While acknowledging that sleeping is a major life activity, the rejected the claim that her sleep epilepsy substantially limited her sleeping because she failed to demonstrate that her seizures lasted for more than a few minutes or that they prevented her from going back to sleep in a short period of time. Further, she admitted that "with her medication, [she only] suffer[ed] from night seizures one to three times a month." Thus, "even if Ozee had established that her failure to pass the preemployment drug test was a result of her sleep epilepsy, she has failed to state a prima facie case of discrimination under the ADA because no reasonable jury could conclude that her epilepsy 'significantly restrict[s]' her sleeping vis-a-vis that of 'an average person.'" Ozee v. Henderson County, 2009 U.S. Dist. LEXIS 37114 (W.D. Ky., 5/1/09) [enhanced lexis.com version]. USERRA: incompetent civilian work performance, fraud, sufficient documentation, no discrimination Illustrative; not controlling law. Sufficient documentation of a military reservists dangerously deficient civilian work performance and fraudulent representation of his academic credentials enabled his employer to defeat his discrimination claim. Safety was a concern of this court because the employee worked with aircraft engine design and manufacturing. Rolls Royce Corporation, No. 08-1923, (7th Cir., (4/29/09); 563 F.3d 636; 2009 U.S. App. LEXIS 9018; 186 L.R.R.M. 2443; 92 Empl. Prac. Dec. (CCH) P43,552 [enhanced lexis.com version]. ADA: chronic fatigue syndrome, requested accommodation, disability issue, pretext; summary judgment reversed for trial Illustrative; not controlling law. Finding that the employee's condition was "intermittent" and her impairments were "short-lived, non-permanent, and non-severe," the lower court misapplied the legal standards for determining the duration, permanency, and severity of a chronic condition under the ADA. The relevant time period for assessing disability is at the time of the adverse employment action, and the employee's evidence suggested her CFS symptoms were severe enough to constitute a disability under the ADA at the time she was allegedly discharged for having a disability and for requesting an accommodation. Finding that a jury could reasonably find the employee was substantially limited in undisputedly major life activities of caring for oneself, sleeping, and thinking, the case will proceed to a jury to determine if that is so. Also, the jury is to consider genuine issues of material fact as to whether the employer failed to accommodate the employee and unlawfully discharged her. At issue there was whether her answer "no" on her job application by falsely answering a question about whether she experienced excessive fatigue associated with work or exercise was a material misrepresentation because her CFS-induced fatigue did not arise from work or exercise. The employer allegedly had "first formed an intention to discharge" the employee because of her disability and "only afterwards developed the purely pretextual reason" to do so. EEOC v. Chevron Phillips Chemical Co., No. 07-20661 (5th Cir., 6/5/09); 2009 U.S. App. LEXIS 12148; Internet: http://www.ca5.uscourts.gov/opinions/pub/07/07-20661-CV0.wpd.pdf [enhanced lexis.com version]. USERRA: national guard, preferential scheduling Illustrative; not controlling law. USERRA does not cover weekend duty meetings, and airline work schedules need not be preferentially adjusted for guard members. Crews v. City of Mt. Vernon, No. 08-2435 (7th Cir., 6/2/09); 2009 U.S. App. LEXIS 11718; Internet: http://www.morelaw.com/verdicts/case.asp?n=08-2435&s=IL&d=40286 [enhanced lexis.com version]. Title VII: deficient performance, documentation, effective policies, prompt response; retaliation, cat's paw; allegations of sexual harassment Controlling law. Properly warning, counseling and documenting employees of deficient performance is essential to successfully defending discrimination clams, and that allowed this employer to win. It had adequate anti-harassment policies and training, the female employee failed to effectively and timely avail herself of employer's prevention and reporting procedures, and the employer's prompt response, investigation and adverse employment action against the perpetrator was sufficient (separation of him from her, additional training required for him and reduction of his salary). Evaluations of her deficient performance were properly addressed and ample opportunities were provided for her to improve. Termination of her employment was based on her deficiencies and had nothing to do with the harassment incidents. Pinkerton v. Colorado Department of Transportation, 07-1494 (10th Cir., 4/16/09), 2009 US App. LEXIS 7890; 563 F.3d 1052; 105 Fair Empl. Prac. Cas. (BNA) 1765; Internet: http://www.morelaw.com/verdicts/case.asp?n=07-1494&s=CO&d=39771 [enhanced lexis.com version]. Rehabilitation Act/ADA/ADAAA: Under the ADAAA, which amends both the Rehabilitation Act and the ADA, this "regarding" case involving hearing aids probably would have turned out differently because corrective devices and/or medications cannot now be considered. For information purposes, this is a controlling case for those acts before the ADAAA went into effect was Detterline v. Salazar, 2009 U.S. App. LEXIS 7489; Internet: http://ca10.washburnlaw.edu/cases/2009/04/07-1443.pdf [enhanced lexis.com version]. FMLA: retaliation, pretext
Union: reprisal, posting names and legal expenses Illustrative; not controlling law. This case was returned for trial. Retaliation charges by five African-American current and former union members were reinstated. They claimed retaliation based on the union practice of disclosing EEOC claims with postings of names discrimination claimants and posting the legal bills related to claims. The union contended this had been a practice for a long time. The appellate court found that though that was not a per se a Title VII violation, there was evidence raising a possible reasonable inference that the union was aware of a negative impact on the members based on the listing and the reading of their names and associated costs during meetings. Franklin v. Sheet Metal Workers, Local 2, No. 08-2707 (8th Cir., 5/1/09); 2009 U.S. App. LEXIS 10291; Internet: http://www.ca8.uscourts.gov/opndir/09/05/082707P.pdf [enhanced lexis.com version]. Drug testing: urine, direct observation, DOT regulation, Administrative Procedure Act and the Fourth Amendment Illustrative; not controlling law. Regulations of the Department of Transportation were upheld: follow-up drug tests were required to be conducted under direct observation. The appellate court found that the DOT had "considered justification" in concluding that there been "growth of an industry devoted to circumventing drug tests, coupled with returning employees' higher rate of drug use and heightened motivation to cheat, presented an elevated risk of cheating on return-to-duty and follow-up tests." Individual rights of freedom from intrusive searches had to be balanced against valid safety interests, and the appellate court ruled the DOT regulations did not violate the Fourth amendment protection against unreasonable searches. BNSF Railway v. US Dep't of Transportation, No. 08-1264 Consolidated with 08-1276, 08-1338, 08-1342, 08-1361, 08-1362, 08-1378 (DC Cir,. 5/15/09); 2009 U.S. App. LEXIS 10288; Internet:. http://transit-safety.volpe.dot.gov/DrugAndAlcohol/Regulations/Regulations/MandatoryObservation/08-1264-1181010.pdf [enhanced lexis.com version]. Title VII: invidious sexual stereotyping, snap judgment, failure to investigate Illustrative; not controlling law. A male employee accused of and forced to quit based on an allegation of sexual harassment made out a prima facie (legally sufficient basic) case for discrimination. His supervisor did not investigate before taking the adverse employment action because "you probably did what she said you did because you're male and nobody would believe you anyway." Sassaman v. Gamache, Dutchess County Bd. of Elections and Dutchess County, 07-2721-cv (2nd Cir., 5/22/09); 2009 U.S. App. LEXIS 10937; Internet: http://www.google.com/search?client=firefox-a&rls=org.mozilla%3Aen-US%3Aofficial&channel=s&hl=en&q=%22Sassaman+v.+Gamache%22&btnG=Google+Search [enhanced lexis.com version]. Title VII: sexually hostile work environment Illustrative; not controlling law. Though not a target in a highly charged environment abusive in general to women, that corrosive atmosphere was sufficient to support the discrimination claims of a small group of women subjected to that unchecked behavior in a predominantly male workplace. Gallagher v. C.H. Robinson Worldwide, Inc., No. 08-3337 (6th Cir., 5/22/09); 2009 U.S. App. LEXIS 10933; 2009 FED App. 0184P (6th Cir.); Internet: http://www.ca6.uscourts.gov/opinions.pdf/09a0184p-06.pdf [enhanced lexis.com version] Title VII, Equal Pay Act: unexplained discrepancy and difference Illustrative; not controlling law. The employer was unable to satisfactorily explain the $21,000 difference between what her employer had been paying her and what her male replacement had been offered. Though the employer contended it had to consider the market value of the skills of the male applicant, the appellate court stated the employer had to prove that the difference was based on factors other than gender. Drum v. Leeson Elec. Corp., No. 08-1678 (8th Cir., 5/15/09); 2009 U.S. App. LEXIS 10274; 106 Fair Empl. Prac. Cas. (BNA) 309; Internet: http://www.ca8.uscourts.gov/opndir/09/05/081678P.pdf [enhanced lexis.com version]. ADA: epilepsy, regarded, essential functions, able to perform without accommodation; interplay of ADA and SSD Illustrative; not controlling law. ADA and Social Security Disability standards of proof are different: - SSD: " . . . considering his age, education, work experience, and residual functional capacity, there [were] not a significant number of jobs in the national economy that he could perform. - ADA: Though he was found to be disabled for Social Security purposes, his condition changed over time and the appellate court found he was not disabled prior to his discharge; and even though ADA "regarded as" employees have no right to reasonable accommodations, the trial court also was correct in allowing the salesperson to introduce evidence that he was denied an accommodation during the period in which he was disabled because the company "vigorously contend[ed]" that he was actually disabled and unable to perform his job.
Cancer: fear of, jury instruction The United States Supreme Court reversed a state court decision in a Federal Employers Liability Act (FELA) claim because the trial court failed to properly instruct the jury on how to deal with a worker's fear of cancer. It cited its 2003 asbestosis decision in Norfolk & Western R. Co. v. Ayers that stated though an asbestosis sufferer may seek compensation for his fear of cancer "as an element of his asbestosis-related pain and suffering damages," in order to do so the plaintiff must prove "that his alleged fear is genuine and serious." The case was reversed and remanded (i.e., returned) for trial with this instruction to be added to those to be given to the jury. CSX Transportation v. Hensley, No. 08-1034 (USSC, 6/1/09); 2009 U.S. LEXIS 3974; Internet: http://supct.law.cornell.edu/supct/html/08-1034.ZPC.html [enhanced lexis.com version]. FLSA: bonus-pay plan, salary-basis test, improper deductions Illustrative; not controlling law. Read this entire case for the details of how one court ruled to properly handle this type of situation. Baden-Winterwood v. Life Time Fitness Inc., Nos. 07-4437/4438 (6th Cir., 5/19/09); 2009 U.S. App. LEXIS 10461; 2009 FED App. 0177P (6th Cir.) [enhanced lexis.com version]. FLSA: overtime, nature of necessary knowledge Illustrative; not controlling law. The FLSA definition of constructive knowledge is whether the employer should have known of uncompensated overtime, i.e., in the overtime context it is whether the county "should have known," not whether it could have known. Thus, the appellate court concluded it would not be reasonable to require that the county search through non-payroll records (in this case, the county tracked the duty-status of an officer through a program known as Computer Aided Dispatch) to determine whether its employees were working beyond their scheduled hours. Hertz v. Woodbury County, Iowa, May 28, 2009); ; Internet: http://www.ca8.uscourts.gov/opndir/09/05/082612P.pdf [enhanced lexis.com version]. FLSA: exempt status, indispensable employee Illustrative; not controlling law. Indispensability to the employer's business was not the determining factor of whether the employee's position is directly related to management policies or general business operations, and thus exempt from overtime status under the FLSA. An employee's exemption "is based on the type of work performed by that individual, not whether a business practice or applicable law require a particular position to exist." Desmond v. PNGI Charles Town Gaming, LLC, No. 08-1216 (4th Cir., 4/30/09); 2009 U.S. App. LEXIS 9113; Internet: http://pacer.ca4.uscourts.gov/opinion.pdf/081216.P.pdf [enhanced lexis.com version]. Title VII: gender discrimination, transgender applicant Illustrative; not controlling law - however, the NM Human Relations Act (NMHRA) applies to employers with four or more employers, and thus in NM the employee probably would have prevailed in our jurisdiction. Paraphrasing the applicable portions of the NMHRA, these kinds of discriminations are prohibited: - sexual orientation (= heterosexuality, homosexuality or bisexuality - either actual or perceived), and - gender identity (= person's self-perception or perception by others as identity as male/female based on appearance, behavior or physical characteristics either in accord with or opposed to physical anatomy, chromosomal sex, or birth sex). As to federal law, for the past few years rumors have circulated that Congress and federal courts were also headed in the direction of protecting sexuality status at any stage or of any type. In this federal case, the discrimination was based on sexual stereotypes relating to transgender change, and the plaintiff's claim survived summary judgment and can proceed to trial. Schroer v. Billington, (U.S.D.C., 4/28/09); Internet: http://www.aele.org/law/2008FPFEB/schroer-billington.html [enhanced lexis.com version]. Title VII: supervisor, strict liability of employer
- the employee has the initial burden to come forward with a prima facie case of discrimination, - then employer must show a legitimate business reason for its actions; and finally - the ultimate burden is on the employee to prove that the employer's reason is a pretext for discriminatory motive. It is important to always remember the employee always has the ultimate burden of proving discrimination. And in cases such as this one, the essential issue is whether the employer honestly believed its adverse employment action was appropriate and that it made a "reasonably informed and considered decision" before taking it. Home Depot's Operations Assistant Manager at a Nashville store allowed a co-worker to use her password-protected user ID to modify a special order transaction for Sybrandt, and Sybrandt also subsequently entered computerized "notes" on the transaction, indicating that she wanted to cancel part of the order and receive a refund. Both actions of those actions violated the company's "no-self-serve" policy. She claimed gender discrimination when she was replaced by a male employee. Both the trial and appellate court found the employer had shown there was no pretext, and the summary judgment in favor of the employer was affirmed. Sybrandt v. Home Depot, U.S.A., Inc., No. 08-5598 (6th Cir., 3/26/09); 560 F.3d 553; 2009 U.S. App. LEXIS 6401; 2009 FED App. 0117P (6th Cir.); 105 Fair Empl. Prac. Cas. (BNA) 1470; Internet: http://www.ca6.uscourts.gov/opinions.pdf/09a0117p-06.pdf [enhanced lexis.com version].
- the company president witnessed the injury, - the employee obviously was in agony and unable to walk unaided, - he was "forcibly transported" . . . "against his will" to a scheduled business meeting where he endured excruciating pain, - several hours later he was finally transported to a hospital and underwent surgery and received post-surgical care for five days, - the president called him at the hospital "at least twice" to "hasten his discharge", and - upon returning to work, the president accused him of "milking" his injuries and shortly thereafter fired him. Thus, the employee's claims for FMLA retaliation, false imprisonment, and intentional infliction of emotional distress did not trigger coverage under the employer's insurance policies providing for costs of defending the claim and for indemnity coverage for damages for bodily injury bodily injury caused by an "accident,". Lucterhand v. Granite Microsystems, Inc., No. 07-2719 (7th Cir., 4/28/09); 2009 U.S. App. LEXIS 8971; Internet: http://www.ca7.uscourts.gov/tmp/N80NMPER.pdf [enhanced lexis.com version]. [Note: Also, in NM an injury incurred in the course and scope and arising out of employment is covered the NM Workers' Compensation Act, but in a case such as this the behavior of the employer possibly could have been ruled to be both (1) an injury covered the Act for the injuries on the job, plus (2) also be of a nature to deny the employer the exclusive remedies of the Act for the subsequent injuries, aggravation and misconduct. The Act essentially limits to medical care related to the injury and a limited recovery for loss of earning power, whereas discrimination and personal injury damages recoveries usually can be far more extensive and expensive.] Stored Communications Act (SCA): former employee, personal email account; no proof of actual damages, minimum statutory damages Illustrative; not controlling law. Be aware of this law that can hold snoopers liable for accessing a person's email account(s) for unauthorized reasons. Van Alstyne v. Electronic Scriptorium Limited, No. 07-1892, No. 07-1899 (4th Cir., (3/18/09); 560 F.3d 199; 2009 U.S. App. LEXIS 5548; 28 I.E.R. Cas. (BNA) 1441; Internet: http://pacer.ca4.uscourts.gov/opinion.pdf/071892.P.pdf.; Stored Communications Act, 18 U.S.C.A 2701-2712, http://www4.law.cornell.edu/uscode/18/usc_sup_01_18_10_I_20_121.html [enhanced lexis.com version]. Evidence: witness, expertise, Rule 702 Illustrative; not controlling law. Expert testimony is required to establish an estimate of lost future earnings and benefits because that requires specialized or technical knowledge. In this case the trial judge erred by allowing the employee to testify about those matters. It was not error to allow her to testify about past losses because those matters are within her personal knowledge. Donlin v. Philips Lighting, No. America Corp., No. 07-4060, (3rd Cir., 4/23/09); 2009 U.S. App. LEXIS 8408 [enhanced lexis.com version]. NLRB: merging two union groups into on unit; core business decision; no retroactive decision Illustrative; not controlling law. Usually an employer must negotiate about the effects of merging bargaining units. However, in this case the CWA was found to have been able to adequately represent the interests of the IBEW employees and deliver adequate results; the IBEW was unable to demonstrate that as a result of the merger their employees ended up in an inferior position. International Brotherhood of Electrical Workers, Local 21 v. NLRB, 2009 U.S. App. LEXIS 8238 (9th Cir., 4/20/09)] [enhanced lexis.com version]. ADA, FMLA: interrelation of acts, fitness-for-duty examination Illustrative; not controlling law. Employment of an emergency dispatcher was terminated after a fitness-for-duty examination indicated that she may not be able to perform the essential functions of her position; her own statements supported what was reported by the examining psychiatrist and her own physician. She was unable to show she was entitled to FMLA leave; her FMLA request and accompanying medical certification stated that her sleep, energy level, motivation, and ability to concentrate were intermittently impaired. She claimed her ADA and FMLA rights were violated by disciplining her for claiming FMLA leave, and she claimed she was regarded as disabled. The trial court found no evidence that the city regarded her as disabled. There is no FMLA violation when, in accordance with the ADA, an employer requires an employee to be examined to see if the employee is fit for duty. Wisbey v City of Lincoln, 2009 U.S. Dist. LEXIS 30819 (D. Neb., 4/10/09) [enhanced lexis.com version]. Title VII: national origin, retaliation; dissimilar treatment, pretext, failure to investigate, "speak American" Download 5.55 Mb. Share with your friends:
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