Human resources & employment law cumulative case briefs
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Controlling law. What is sufficient documentation for a discrimination charge? A recent United States Supreme Court case definitively dealt with what kinds of filing information and document(s) will be sufficient notify the EEOC of a claim for relief made on the agency for investigation, hearing and action to subsequently allow pursuit of the claim in court. This unpublished opinion in our federal appellate jurisdiction is based on Federal Express Corp. v. Holowecki, No. 06-1322 (2/27/08), 552 U.S. ____; 2008 U.S. LEXIS 2196 [enhanced lexis.com version]; Internet: http://www.law.cornell.edu/supct/html/06-1322.ZS.html; http://www.law.cornell.edu/supct/pdf/06-1322P.ZO, recently briefed in this database that discusses filing deadlines and what kind of filing information is sufficient to inform the EEOC that a claim has been made and relief is requested. The reason for a relaxed standard is that many claimant are not attorneys, and thus not knowledgeable about the formalities of making a claim of discrimination. To rule otherwise could have the effect of defeating otherwise valid claims. Carson v. Cudd Pressure Control, Inc., No. 07-6199 (10th Cir., 11/19/08): 2008 U.S.App. LEXIS 24033 [enhanced lexis.com version] Within 300 days of his discharge the employee submitted three verified intake questionnaires and an affidavit to the EEOC alleging violation of the ADA for either actual disability or for being regarded as disabled. The agency issued a formal "Charge of Discrimination" and later a right-to-sue letter. His complaint filed with the federal district court alleged an ADA claim and that he had exhausted is administrative remedies. Our 10th Circuit Court of Appeals found that was sufficient to notify the EEOC of a claim for relief made on the agency for investigation, hearing and action to subsequently allow pursuit of the claim in court. It characterized the Holowecki rule as a "permissive standard" that allows a broad range of documents to qualify as EEOC "charges" because the USSC found that to be consistent with the purpose and design of the federal employment acts and laws prohibiting discrimination because many claims are filed by non-lawyers. NLRA: confidentiality agreement too broad Illustrative; not controlling law. The National Labor Relations Act covers terms and conditions of work and Section 8(a)(1) of protects employees who discuss them. Confidentiality agreements required by some employers are designed to protect a company's essential business or trade secrets from being shared with third parties. However, if the confidentiality agreement could reasonably be interpreted to prohibit communications with union representatives about terms and conditions of employment, then it is too broad. In this case the employee shared information about terms and conditions with a third party, an employee of another company, and was fired for that. The NLRB decision ruled that discharge violated the Act because it could be interpreted as prohibiting an employee from discussing terms and conditions with a union (even though in this case it did not happen to be with a union). Northeastern Land Services v. NLRB, No. 08-1878 (3/13/09); 2009 U.S. App. LEXIS 5267; Internet: http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=08-1878P.01A [enhanced lexis.com version]. NLRA: protected speech, profanity, considered rather than spontaneous Illustrative; not controlling law. Union negotiations can be heated and contentious, so the NLRA allows wide latitude on what can be said. However, there are limits. A union newspaper pressman was not protected when he called the employer's vice-president of operations "a stupid f---ing moron" in response to the executive's letter to pressmen about current contract negotiations. The NLRB had ruled that such conduct was not so "egregious" as to warrant being fired. However, the appellate court overruled the Board's decision" because "This was not a spontaneous outburst in response to an illegal threat but an ad hominem attack" Media General Operations v. NLRB, (4th Cir., 3/13/09), 2009 U.S. App. LEXIS 5285, [enhanced lexis.com version]. ADA: Voice condition, public perception, unreasonable production goals, RIF termination, failure to rehire, similarly situated employees Illustrative; not controlling law. Perceptions admitted by bank executives about how the public might perceive a voice condition of a loan officer violated the ADA. He had been employed for 21 years. Unrealistic production goals were imposed upon him, goals also not imposed on similarly situated employees. Summary judgment in favor of the employer was overruled and the tow issues for the jury were (1) whether he was qualified for the job and (2) was the bank's reason for not rehiring him a pretext for unlawful. Willnerd v. First Nat'l Neb., Inc., No. 07-3316 (3/13/09); 2009 U.S. App. LEXIS 5218 [enhanced lexis.com version]; Internet: http://www.morelaw.com/verdicts/case.asp?n=07-2901&s=MO&d=39373. ADA: diabetes, urinary incontinence, exposing to view, reasonable accommodation Illustrative; not controlling law. Once again, perhaps using some common sense might have avoided litigation. Diabetes caused frequent urination problems of genital exposure as the employee relieved himself at his work station that was far from the toilet. However, the issue of reasonable accommodation was not reached because his discrimination claim failed because the person who decided to terminate him for exposing himself in the process did not know that his urination problem was caused by his diabetes disability. EEOC v. Cast Prods., Inc., (U.S.D.C.N.D.Ill., 3/9/09); 2009 U.S. Dist. LEXIS 17777; [enhanced lexis.com version]; Internet: http://hr.cch.com/cases/Cast%20Products.pdf. [Note: The point is to make a reasonable attempt at an interactive process of determining if there might be a reasonable accommodation that could be made. If not, then it is possible that the employee would not be qualified to perform the essential functions of his job without disturbing coworkers by exposing himself as he urinates at his work station.] ERISA: benefits transferred, wrong defendant, retirement beneficiaries cannot sue former employer Controlling law. AT&T transferred the benefits plan to its spin-off, Lucent Technologies, which later partially eliminated some benefits. The beneficiaries attempted to sue AT&T, but their claim failed: "Even if AT&T at one time had an irrevocable obligation to the appellants, it passed that obligation to Lucent when it passed the administration of the benefits plans to Lucent," the appellant court explained. " Their claim, if any, would have to be brought against Lucent. Chastain v AT&T, No. 07-6288 (10th Cir., 3/9/09): 2009 U.S. App. LEXIS 5268; Internet: http://www.ck10.uscourts.gov/opinions/07/07-6288.pdf [enhanced lexis.com version]. FMLA: insufficient notice of entitlement to leave, employee's lack of cooperation, non-compliance with company attendance policy, burden of proof; no interference, no retaliation Illustrative; not controlling law. Employees have obligations under the FMLA - in addition to their rights. The trial court dismissed the employee's interference claim based on this scenario: - the employee emailed his supervisor requesting "a couple days off" to make arrangements for his mother hospitalized for an insulin overdose; - he could not establish an FMLA interference or retaliation claim after his employer discharged him for violating the company's call-in policy because he did not make a sufficient request for FMLA leave: - the email expressly stated that although he could apply for FMLA leave (which he called the "family care act"), he did not want to at this time, and he asked for Instead, he asked for vacation time; - the supervisor who received the email attempted unsuccessfully several times to contact the employee - he admitted to turning off his company-issued cell phone; - finally contacting his supervisor eight days later, the employee was fired for violating the company attendance policy (failure to report to work for more than two consecutive days without notifying a supervisor is grounds for discharge); and - the employee's email stated he would be gone for only "a couple of days." Though the employee alleged that his email referencing the FMLA was sufficient to put his employer on notice that his absence was covered by the FMLA, the Illinois federal trial found otherwise, stating that the burden never shifted to the employer to determine if the absence was covered. Further, the employer was neither required to ignore the employee's unequivocal statement that he was not interested in applying for FMLA leave nor to "persuade the employee away from that position." Righi v. SMC Corp. of America, No. 07-cv-1064, (C.D. Ill., 2/27/09): 2009 U.S. Dist. LEXIS 15429 [enhanced lexis.com version]. FMLA: pre-adoption activity interference, retaliation; pre-judgment interest
Title VII: gender, sex, cronyism; no illegal discrimination Illustrative; not controlling law. Not all discrimination is prohibited: there is discrimination, and there is illegal discrimination. In this case the discrimination was not illegal. Title VII protects against discrimination based on race, color, religion, gender, ethnicity, national origin, age, or disability. However, the only proof offered by the female plaintiff was that her supervisor was bypassing both male and female employees in granting overtime work so he could benefit some of his friends. The trial judge and the appellate court ruled that Title VII was not violated and dismissed her case before she finished her portion of it, i.e., if that's all you have, you need not go any further. Greene v. Potter, No. 08-1829 (7th Cir., 3/5/09) [enhanced lexis.com version]; Internet: http://hr.cch.com/cases/Greene.pdf [CCH WorkWeek: http://hr.cch.com/netNews/employment-law/current.asp is a valuable Internet resource.] FLSA: attorney fee, costs: offer of judgment, inappropriate conduct Illustrative; not controlling law. As the nursery rhyme says, "Then you shall have no pie." Attorneys need to make reasonable efforts to resolve disputes before resorting to litigation. Incivility and unreasonable conduct are discouraged in litigation, and reasonable behavior is encouraged (as much as possible). To accomplish that, the Federal Rules of Civil Procedure, and similar ones in many state courts, encourage settlements by permitting a party to make an offer of judgment in settlement of a case. Without getting into the intricacies of those rules, there are penalties for unreasonable and/or obstinate behavior. Though this was an FLSA case, its reasoning may well be persuasive in other types of cases. Plaintiff sued for overtime wages. Rather than attempt to resolve the matter before litigation, she made no written demand on her employer for payment of overtime, nor for attorney fees and court costs. In litigation, the employer, using FRCP Rule 68, offered judgment of $3,500, plus attorney fees and costs that the court might determine were appropriate. The court denied the attorney fees and costs because of the uncivil conduct of the attorney: - no effort to inform opposing counsel of the impending claim, and - no effort to resolve the claim before litigation, thus wasting court time and resources. Courts have the power to regulate the practice of law in case brought to them. Sahyers v. Prugh, Holliday & Karatinos, No. 08-10848 (11th Cir.,3/3/09) [enhanced lexis.com version]; Internet: http://www.ca11.uscourts.gov/opinions/ops/200810848.pdf. WARN Act: unforeseeable circumstances, commercially reasonable business judgment
ADEA: policy violations; McDonnell Douglas test, pretext unproven Controlling law. This is a complex case with extensive details, twists and turns, so reading the full decision is strongly recommended. Briefly, the employee had numerous policy violations of varying degree and ambiguity. He contended the reasons for termination tendered by his employer were a pretext to cover up age discrimination, but the trial and appellate court disagreed and summary judgment in favor of the employer ordered by the trial court was affirmed by the appellate court. Bittel v. Pfizer, Inc., No. 07-3311 (10th Cir., 1/9/09); 2009 U.S. App. LEXIS 475; Internet: http://ca10.washburnlaw.edu/cases/2009/01/07-3311.pdf [enhanced lexis.com version]. ADAAA: not retroactive Illustrative law from the Fifth, Sixth, and Seventh Circuit Courts of Appeals discussed in article: http://www.fordharrison.com/shownews.aspx?Show=4568 First Amendment: free speech not suppressed Controlling law. The United States Supreme Court held that free speech was not suppressed. Idaho's Voluntary Contributions Act (VCA) limits some, but not all, payroll deductions. A union challenged the VCA as suppression of its free speech. Justice Roberts wrote that there was a rational basis for implementing the law. States may decline to assist free speech, but may not impede it. Ysursa v. Pocatello Ed. Assoc., No 07-869, ____ U.S. ____ (USSC, 2/24/09); 2009 U.S. LEXIS 1632; Internet: http://www.law.cornell.edu/supct/html/07-869.ZS.html [enhanced lexis.com version]. Title VII: association with persons in protected class, direct harassment Illustrative; not controlling law. A Caucasian employee presented sufficient evidence of direct racial harassment as a result of associating with African-American employees: - She complained about a co-worker's racist language, and she alleged that after he was fired he had threats of physical violence passed on to her by two coworkers; - several coworkers and a supervisor often made racially derogatory comments criticizing her association with a black coworker; - she alleged that an African-American supervisor harassed her because of her relationships with black employees; - twice a supervisor and a coworker discouraged her from applying for job advancements because they disapproved of her friendship with African-American coworkers; - she reported almost all of these incidents of coworker harassment to one of two supervisors who failed to take corrective action; further; and - she alleged that both of them directly harassed her. Thus, there was sufficient evidence for a reasonable jury to find discrimination. Whirlpool Corp., No. 08-5307 (2/23/09); 2009 U.S. App. LEXIS 3443; 2009 FED App. 0065P (6th Cir.) [enhanced lexis.com version]. Title VII, FMLA: hostile work environment, constructive discharge, retaliation
- her supervisor subjected her to increased oversight and singled her out for constant performance evaluation after her return from FMLA leave; - she was denied transfers and was told that she could not take advantage of her company's open-door policy to discuss her situation with her supervisor's manager. Our Tenth Circuit Court of Appeals found that this evidence indicated an intolerable workplace and that a rational jury could find the employer's offer of a transfer made four months after she left UPS was an unrealistic option. Further, she is also entitled for her sex discrimination claim to be decided by a jury, noting that even though a female coworker was not subject to the same mistreatment, both male and female coworkers testified that she was treated differently from every man in her department. Strickland v. United Parcel Service, Inc., No. 07-1082 (10th Cir., 2/24/09); 2009 U.S. App. LEXIS 3654; Internet: http://www.morelaw.com/verdicts/case.asp?n=07-1082&s=CO&d=39219 [enhanced lexis.com version]. Evidence: after-acquired, irrelevant
ADEA: Exclusive remedy, Eleventh Amendment bar to individuals suing state government; Title VII claim barred Illustrative; but controlling law in NM - see Cockrell v. Board of Regent of New Mexico State University, 2002-NMSC-009, 132 N.M. 156, 45 P3d. 876, Alden v. Maine, 527 U.S. 706, 711 (1999), and application of Ex Parte Young, 209 U.S. 123 (1908). The plaintiff was barred by previous case law from bringing her individual personal discrimination claim. She tried to circumvent that previous case law by amending her claim and attempting to proceed under Title VII. That failed because the Ninth Circuit Court of Appeals ruled as have numerous other circuits in holding that the ADEA is structurally and fundamentally different from Title VII, and the ADEA is the exclusive remedy for age discrimination claims. Ahlmeyer v. Nevada System of Higher Ed., No. 06-15654 (2/18/09); 2009 U.S. App. LEXIS 3024 [enhanced lexis.com version]. VII: mailing notice of right to sue, "mailbox" rule Illustrative; not controlling law. An employee must comply with deadlines in order to proceed with a discrimination claim in the administrative and court processes. At issue was whether the EEOC had given her notice of her "right to sue" by mailing her a letter to that effect. Apparently in a measure to reduce costs, the EEOC changed from mailing notice letters by certified mail to using merely First Class postage and instituting a "mailbox" rule, which is a presumption that government notices placed in the mail are presumed to have been received within seven days. [Note: Mailbox rules have been a legal presumption for many years in generally throughout the law.] However, presumptions often can be rebutted. In this Fifth Circuit case, the summary judgment dismissal of the plaintiff's claim was reversed for these reasons: 1) the EEOC presented no evidence that it had mailed the letter; 2) The plaintiff's affidavit in opposition to the motion for summary judgment states she had received it almost two years later than the date of mailing alleged by the EEOC; 3) her attorney presented evidence he had attempted to contact the EEOC about the status of her case and had written advising she wanted to pursue her case. [Note: Using certified mail would have avoided the problem.] Duron v. Albertson's LLC, No. 07-30290 (5th Cir., 2/17/09); Internet: http://www.ca5.uscourts.gov/opinions%5Cpub%5C07/07-30290-cv0.wpd.pdf [enhanced lexis.com version]. ADA: valid business, job-related reason for security guards to have unaided hearing, pre-employment requirement not violation Illustrative; not controlling law. Generally, pre-employment requirements are prohibited by the ADA [and ADAAA]. However, in certain instance there may be a valid business, job-related reason for a certain requirement. This case follows closely on the heels of Wice v. General Motors Corp., No. 07-10662, 21 AD Cases 625 (E.D. Mich. 2008), very recently briefed in this database. In the Eleventh Circuit case briefed now, security guards in federal courthouses needed to have full and accurate hearing, so applicants were required to take the pre-employment medical examination without using hearing aids or other assistive hearing devices. Why? The court said that if a hearing aid or assistive device were to fail during an emergency, then a security guard might not be able to provide full security, and full security is an essential function of the job. Usually establishing a lawful business necessity "is generally quite high," but the court also explained that this burden "is significantly lowered" where the "`the economic and human risks involved in hiring an unqualified applicant are great.'" Allmond v. Akal Security, Inc., No. 07-15561 (11th Cir., 2/20/09); 2009 U.S. App. LEXIS 3287; Internet: http://www.ca11.uscourts.gov/opinions/ops/200715561.pdf [enhanced lexis.com version]. Title VII: sexual harassment, off-duty, outside of workplace Illustrative; not controlling law. Sexual harassment is not necessarily limited to working hours and the workplace. Perhaps employer ought to consider updating and expanding their written policies and training programs. A female employee complained of sexual harassment when coworker propositioned her by offering money for sex, both were off duty at the time. She refused, and alleged that shortly after that her hours were reduced and her coworkers and supervisors treated her poorly. Though the case was ultimately dismissed, the trial court noted that conduct taking place outside of the workplace "has a tendency to permeate the workplace," and in an appropriate case the defendants "may be liable as the harasser's employer because[,] although the alleged harassment took place outside the workplace, it arose out of the harasser and [p]laintiff's employment relationship." Ferguson v. Deptford Twp., et al., No. 06-2112 (D.N.J., 12/22/08); [Note: No additional citation to this unpublished case was available as of 2/19/09.] [enhanced lexis.com version] Private sector: criminal law, search and seizure, privacy, strength of personal connection, type and use of space searched suspected fraud Illustrative; not controlling, but this 9th Circuit Court of Appeals decision is based on precedent from our 10th Circuit Court of Appeals. Though it is a criminal case, it gives us some considerations about search and seizure in the workplace. Two corporate officers of a California corporation (apparently a small business with a small workspace) were suspected of wide-spread Medicare fraud. The 9th Circuit Court of Appeals said "We must decide whether corporate executives may challenge a police search of company premises not reserved for the executives' exclusive use." The Ninth Circuit Court of Appeals borrowed our10th Circuit jurisdiction law: the strength of an employee's personal connection to the area searched must be determined by whether: "(1) the item seized is personal property or otherwise kept in a private place separate from other work-related material; (2) the executive had custody or immediate control of the item when officers seized it; and (3) the executive took precautions on his or her own behalf to secure the place searched or things seized from any interference without his or her authorization." Appling this standard, the Ninth Circuit Court of Appeals stated that "Absent such a personal connection or exclusive use, a defendant cannot establish standing for Fourth Amendment purposes to challenge the search of a workplace beyond his internal office." Thus, the motion of the defendant executives to suppress the results of the employer's search failed. USA v. SDI Future Health, Inc., No. 07-10261 (9th Cir. 1/27/09); 2009 U.S. App. LEXIS 1329; Internet: http://www.ca9.uscourts.gov/datastore/opinions/2009/01/27/0710261.pdf [enhanced lexis.com version]. FMLA: no provisional approval, employee submit a medical certification form attesting to his inability to work Illustrative; not controlling law. Alleging that he overhead a human resources manger state that his leave was "provisionally" approved, his reliance on that, if it in fact had been said, was unreasonable. Further, he was informed three times that he had failed to submit the required medical certification form substantiating his claim that he was medically unable to work. Finally, the second letter to him stated that his leave was denied and that he was not on provisional leave. He was fired for excessive absenteeism in violation of the company no-fault policy. His claim was dismissed because his reliance on the remark, if it had been made, was unreasonable. Reed v. Lear Corp., No. 08-1498 (E.D. Mo., 2/12/09) [enhanced lexis.com version]. FMLA, ADA: unable to return to work at end of leave, retaliation; not regarded as disabled, reasonable accommodation Illustrative; not controlling law. Because her doctor's opinion was that the employee would be unable to return to work after her 12 weeks of FMLA leave, the employee was terminated at the end of her 10th week. Both the trial court and the appellate court dismissed he claims under the FMLA, and the ADA. - An employee who will be unable to return to work after the 12 weeks of FMLA leave does not have the protection of the FMLA, and thus this employee was not prejudiced by the early termination, nor was she retaliated against because she was made aware before she took the leave that she would likely be terminated. - Her ADA claim of being regarded as disabled was rejected because she would have to prove that her employer regarded her as substantially limited in a major life activity, which in this case would be working. As such, she would have to prove that her employer believed she was she was suffering from a condition preventing her from working in a broad range of jobs rather than just the job she had been doing. She was unable to prove that. [Caution: Be sure to check with legal counsel about how the recently enacted ADAAA might affect this decision, especially because now an impairment that substantially limits one major life activity need not limit other major life activities to be a disability. Also, individuals who suffer from episodic impairments or impairments that are in remission, such as cancer or epilepsy, will still be protected under the ADA and ADAAA so long as the impairment would substantially limit a major life activity when active.] Roberts v. The Health Association, No. 07-3553-cv (2nd Cir., 2/3/09); 2009 U.S. App. LEXIS 1944 [enhanced lexis.com version]. FLSA: "outside sales" exemption Illustrative; not controlling law. Employees who perform promotional work for sales but do not finalize or process sales my fall under the "outside sales" exemption of the FLSA and thus not qualify for overtime pay. As always, check with your legal advisor about whether this ruling might be valid in our jurisdiction. Gregory v. First Title of America, Inc., No. 08-10737 (11th Cir., 1/2709); 2009 U.S. App. LEXIS 1630; Internet: http://www.ca11.uscourts.gov/opinions/ops/200810737.pdf [enhanced lexis.com version]. Unions: three new Presidential Executive Orders The Potential Impact of President Obama's Three Executive Orders and a New Task Force, by Fisher & Phillips, LLP; http://www.laborlawyers.com/shownews.aspx?The-Potential-Impact-of-President-Obamas-Three-Executive-Orders-And-A-New-Task-Force&Ref=list&Type=1122&Show=11392 FMLA: future request for leave, retaliation Illustrative; not controlling law. Giving notice of anticipated need for future FMLA leave is encouraged by the act and its implementing regulations. In this case the employee was not eligible at the time of the notice and request, but would have been at the time requested, in other words, at a foreseeable future date. His premature child was in the NCIU, and he needed to take his FMLA leave after his wife returned from her FMLA leave, and that time he would be eligible (he would have worked his required 12 months. [Note: Perhaps the employer felt this was too much leave by the husband and wife, eligible or not.] In denying the employer's motion to dismiss the employee's retaliation claim, the federal district court trial judge in the Northern District of Illinois stated that "Congress intended to help and protect employers by insuring adequate notice of extended absences by employees." . . . "It would be illogical to interpret the notice requirement in a way that requires employees to disclose requests for leave which would, in turn, expose them to retaliation, or interference, for which they have no remedy." Reynolds v. Inter-Industry Conf. on Auto Collision Repair (1/14/09); [Note: No citation information available as of 2/12/09, though CCH has provided this PDF file link in its online service: http://hr.cch.com/cases/Reynolds.pdf.] ADA: medical testing before conditional offer of employment Illustrative; not controlling law. General medical inquiries and testing before a conditional offer of employment violates the ADA. However, this court noted a narrow exception in the ADA: an employer may require a medical examination or make disability-related inquiries if the examination or inquiry is "job-related and consistent with business necessity", and it is the employer's burden to prove both job-relatedness and business necessity." [Note: This appears to be a matter of safety concern.] In this instance the employee's position involved moving tools and other equipment around the company's plant covering a million square feet and within the plant operating mobile equipment, such as bulldozers and portable cranes. This federal trial court found that these job duties required all individuals in the position of millwright to renew their in-plant driver's license every three years as well as attend refresher training and pass a medical exam to ensure plant safety. Citing a 2003 U.S. Court of Appeals for the Second Circuit decision for the business necessity standard, the federal trial court for the Eastern District of Michigan quoted this reasoning: "'[T]he employer must first show that the asserted "business necessity" is vital to the business…. The employer must also show that the examination or inquiry genuinely serves the asserted business necessity and that the request is no broader or more intrusive than necessary. The employer need not show that the examination or inquiry is the only way of achieving a business necessity, but the examination or inquiry must be a reasonably effective method of achieving the employer's goal.'" , it concluded that the company's testing requirement was a "'reasonably effective method' of achieving [the employer's] goal of a safe workplace." and that the employer had sufficiently proven that the medical exam is job-related and necessary to the operation of its business. As always, check with your legal counsel before proceeding with such a policy and practice to be sure this is appropriate for your situation. Wice v. General Motors Corp., No. 07-10662, 21 AD Cases 625, 2008 U.S. Dist. LEXIS 106727 (E.D. Mich. 2008); [Note: no further citation information was available as of 2/11/09.] [enhanced lexis.com version] ERISA: benefits, retiree health care, distribution of death benefits; terms of specific plan documents; collective bargaining agreement (CBA) Benefits plan administrators and practitioners ought to check the specifics in these two cases: - Kennedy v. Plan Administrator for DuPont Savings and Investment Plan, et al., No. 07-636, U.S. Supreme Court (January 26, 2009) - briefed earlier in this database, and - Winnett v. Caterpillar, Inc., No. 07-6275 (6th Cir., 1/27/09); 2009 U.S. App. LEXIS 1881; 2009 FED App. 0027P (6th Cir.) [enhanced lexis.com version] Title VII: untimely claim barred, discharge notice not bluff Illustrative; not controlling law. The employee's discrimination claim was barred because he did not file his discrimination claim within the mandatory time period. His contention that he thought his employer's discharge notice was a bluff to convince him to change his religious position on evolution was rejected. The time begins to fun from the date of the adverse employment action was communicated to him, not when he finally believed it. Four termination notices had been sent in the month before his date of discharge. Abraham v Woods Hole Oceanographic Inst., No .08-1655 (1st Cir., 1/22/09); 2009 U.S. App. LEXIS 1146; Internet: http://www.morelaw.com/verdicts/case.asp?n=08-1655&s=MA&d=38806 [enhanced lexis.com version]. Title VII: Ellerth/Faragher affirmative defense, failure to report alleged harassment Illustrative; not controlling law. However, this is a close case and should be read for details. The claimant did not report her sexual harassment claim to the company she knew the harasser, a human resources manager, was close friends with the director of human resources and they often went out drinking together. The company policy stated: Two provisions of AEELA's sexual harassment policy are relevant to this appeal. Section 3.2 of the policy states: "An employee who feels he has been sexually harassed at work in any way, should present his complaint to the Human Resources Department. If the alleged harasser should be this person, or anyone related or close to him, then the complaint must be presented directly to the Association's Executive Director." Section 3.3 of the policy states: "It is the responsibility of any employee who witnesses a sexual harassment act, or if any other employee has complained of being a victim of sexual harassment, to immediately inform the appropriate official." This is a somewhat typical example of providing alternative routes of reporting, but the courts decided to give the claimant a chance before a jury with her allegations because she contended all of the persons to whom she would have reported were all friends of the alleged harasser and she feared the consequences of reporting according to policy. If there is a valid reason for failure to report, the claim is reporting requirement of Ellerth/Faragher does not apply. Monteagudo v. Asociación de Empleados del Estado Libre Asociado de Puerto Rico, No. 07-2341 (1st. Cir., 1/26/09); 2009 U.S. App. LEXIS 1282; Internet: http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=07-2341P.01A [enhanced lexis.com version]. Retaliation: internal investigation of inappropriate behavior, coworker answering question, "opposition clause", "protected activity" Download 5.55 Mb. Share with your friends:
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