Human resources & employment law cumulative case briefs
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- not within the hearing of a supervisor, - complaining employee admitted she didn't think the epithets were directed at her, - did not contend that the incident created a hostile work environment, and - conceded during cross-examination that the incident did not affect her ability to do her job. Thus, the appellate court agreed with the trial court and found "It is objectively unreasonable to believe that the use of racially discriminatory language on one occasion by one coworker away from the workplace is enough to permeate the workplace with 'discriminatory intimidation, ridicule, and insult' and to 'alter the conditions of the victim's employment and create an abusive working environment.'" Butler v. Alabama Dep't. of Transp., No. 07-13358 (11th Cir., 7/30/08); 2008 U.S. App. LEXIS 16113; Internet: http://www.ca11.uscourts.gov/opinions/ops/200713358.pdf [enhanced lexis.com version]. Union: duty to fairly represent, hybrid action, factual questions, limitation of actions Controlling law. However, this case involves unique facts, so practitioners are advised to read the actual opinion to check for similar factual situations, applicable law, etc. Basically, a school employee changed status after many years in another position, became a union member, questioned denial of her past years of service in calculating the correct salary step after her change of status, and essentially appears to have been given inadequate attention by both the school district and the union. This well considered opinion covers the rights and responsibilities of the employee, school district and union. Howse v. Roswell Independent School District and Communication Workers of America, AFL-CIO, No. 27,171 (NMCA, 4/21/08), 2008 NMCA 95; 2008 N.M. App. LEXIS 65; Internet: http://www.supremecourt.nm.org/opinions/VIEW/08ca-095.html; Certiorari Denied, No. 31,111, June 12, 2008 [enhanced lexis.com version]. Summary judgment was granted to the school district and the union, which meant her claims were dismissed without trial. On appeal to the NM Court of Appeals, that court found there were questions of material fact (i.e., legally important) that should be decided by a jury: - Did she receive adequate representation by her union in order to know if she actually had a valid claim? - If so, did she take timely action on her claims? - What time limits apply in a hybrid action (i.e., mixed rights and duties)? Against the employee? Against the employer? Against the union? Retaliation: recommendation of subordinate to superior, theories, "subordinate bias", "cat's paw"; independent investigation or judgment; attendance violations; evidence, McDonnell Douglas test
- though her supervisor recommended suspension, - subsequent multiple independent investigation and reviews and approval by upper-level management and HR demonstrated a valid business reason for the suspension rather than the alleged retaliation.
Defamation: Health Care Quality Improvement Act (HCQIA), immunity, peer review process protected, investigation, no bad faith Illustrative; not controlling law. A cardiologist whose catheter lab privileges were suspended during allegation of substandard care sued for defamation, His "extraordinary judgment" of $22.5 million was set aside. Evidence showed that after the investigation he was suspended for five months. The appellate court found the temporary abeyance was imposed "in the reasonable belief that the action was in furtherance of quality health care." Poliner v. Texas Health Systems, No. 06-11235 (5th Cir., 7/28/08); 2008 U.S. App. LEXIS 15580; Internet: http://www.ca5.uscourts.gov/opinions/pub/06/06-11235-CV0.wpd.pdf; Healthcare Quality Improvement Act of 1986 (HCQIA); United States Code Title 42, Sections 11101 - 11152) [enhanced lexis.com version] Retaliation, Title VII: inappropriate response to later reprisal complaint, punitive damages affirmed Illustrative; not controlling law. Initial handling of the employee's Title VII claim was defeated by its subsequent mishandling of a reprisal complaint he later made. A period of half a year between events was overcome by sufficient evidence of a pattern of adverse actions taken against him. The mishandling involved subsequent failure to adequately take prompt remedial action in response to reprisals against the employee. Company officials and executives, who had human resources training and/or experience and should have known better, botched the matter by letting things go bad. Thus the jury's award of punitive damages was upheld. Heaton v. The Weitz Co., Inc., Nos. 07-2851/07-3030 (7/24/08); 2008 U.S. App. LEXIS 15577 [enhanced lexis.com version]. Section 1981: race, hostile work environment, serious verbal attack, repeated demeaning work requests Illustrative; not controlling law. An African-American physician, also a homosexual alleged he was subjected to a hostile work environment. The standard of proof is whether the incident or incidents were severe and pervasive. Discriminatory behavior came in a serious verbal attack from a fellow physician, and repeated demeaning requests from a nurse that he remove trash from the operating room. Finally, evidence also consisted of allegations that members of the residency selection committee indicated they would not favorably consider him because of his rave and homosexuality. The motion to dismiss his case failed and will now head to trial. Johnson v. Riverside Healthcare Sys. LP, No. 06-55280 (9th Cir., 7/28/08); 2008 U.S. App. LEXIS 15994 [enhanced lexis.com version] FLSA: pay discrimination, grouping common cases, commonality Illustrative; not controlling law. The FLSA allows claimants with claims similar in law and facts to group them into one action to be tried that way. This case describes the standards for such grouping. Parra v Bashas', Inc., (9th Cir., 7/29/08); 2008 U.S. App. LEXIS 15985; Internet: http://www.ca9.uscourts.gov/ca9/newopinions.nsf/6E90DF303D4F7F54882574950000CD4C/$file/0616038.pdf?openelement [enhanced lexis.com version]. Title VII: retaliation claims, close relative, protected activity of parent U.S.D.C.N.M. Because it is not a ruling by the Tenth Circuit Court of Appeals, it is thus not controlling law in other cases, and thus it is limited to being possible persuasive authority in other similar cases in our federal district. Two adult children claiming retaliation was the reason they were denied employment. They alleged that happened because of their mother's protected while working for the company. The 10th Circuit Court of Appeals has not answered this question of whether a person suffering an adverse employment action under Title VII can claim retaliation for a close relative's protected activity. Some other appellate circuits have ruled on the question, holding that a retaliation claim is available only to the employee, not to relatives, i.e., no riding on coattails. The N.M.U.S.D.C. refused to defer to EEOC regulations interpreting Title VII, stating "The clear wording of the provision limits causes of action to persons who engage in opposition or who participate in some way, even if minimally, in the protected activity." EEOC v. Wal-Mart Stores, Inc., No. 07-CV-0300 JAP/LFG (U.S.D.C.N.M., 7/08); Internet: http://www.nmcourt.fed.us/Drs-Web/view-file?full-path-file-name=%2Fdata%2Fdrs%2Fdm%2Fdocuments%2Fndd%2F2008%2F07%2F17%2F0001724241-0000000000-07cv00300.pdf. Title VII: race, timecard fraud; evidence, McDonnell Douglas, summary judgment for employer Controlling law. The McDonnell Douglas test used in cases of indirect discrimination evidence requires a prima facie (minimally sufficient) showing of discrimination, then a showing by the employer of a legitimate nondiscriminatory reason for an adverse employment action, and if that is sufficient the employee must prove that was a pretext for the action. The employee's explanations and evidence of unaccounted time failed, plus the employer presented overwhelming evidence of fraud. No evidence of disparate treatment was presented by the employee. Once again, an appellate court said it would not second-guess an employer. Kameisha Hamilton v. Boise Cascade Express, No. 06-6308 (10th Cir., 6/2/08); 2008 U.S. App. LEXIS 11744; 103 Fair Empl. Prac.Cas. (BNA) 935 [enhanced lexis.com version]. Public Sector, Whistleblower First Amendment: retaliation, matters of public concern, adverse employment action, motivating factor U.S.D.C.N.M., so important as possible persuasive authority in other similar cases in our federal district. Public sector employees have a right of free speech under proper circumstance [described below]. A LANL auditor alleged pressure from higher up not to disclose billing improprieties; threats of firing were made; management stopped assignments to his unit and ignored its fiscal plans; he was not considered for promotion, and he alleged an "ergonomically unsafe work station". Hook v. Regents of the University of California, No. 05-356 (D.N.M., 6/12/08) Matters of public concern: His exercise of free speech as a public sector was upheld because under the First Amendment it "revealed an attempt to cover up an alleged concern". Further . . . , Speech is a mater of public concern if it is motivated by a desire to expose a public employer's malfeasance . . . and, . . . The fact that his speech took the form of sworn testimony in court or in a legislative proceeding also lends it additional protection. Adverse employment action: In order to prevail the employee had to show that his protected speech was a substantial or motivating factor resulting in an adverse employment action, and the court ruled the question of reducing work for his unit could be considered by a jury. However the court rejected his claim of negative performance evaluation because the employer gave him a "glowing description his work" and a resulting score of 7.5 on a scale of 10, which indicated his performance was better than "solid". His claim of an ergonomically unsafe work station was rejected. Motivating factor: Because there was a long time gap between his exercise of his right to free speech and an adverse employment action, described by the court as a "significant temporal disconnect", his claim failed. ERISA: suing administrator Illustrative; not controlling law. An update on LaRue [USSC - previously briefed in this database] with a case from the 4th Circuit Court of appeals. In Re: Mutual Funds Investment Litigation, No. 06-2003, No. 06-2176, No. 06-2177, 529 F.3d 207 (4th Cir. 6/16/2008); 2008 U.S. App. LEXIS 12690; 43 Employee Benefits Cas. (BNA) 2945; The Public Library of Law: http://www.plol.org/Pages/Login.aspx?d=eSbUWPS%2b2oFHpeBA%2bxuxsg%3d%3d&l=Cases [enhanced lexis.com version]. Title VII, PDA: in vitro fertilization (IVF), gender specific test Illustrative; not controlling law. IVF is gender-specific, as opposed to infertility, which is not. ''Employees who are discharged for taking time off to undergo IVF- just like those terminated for taking time off to give birth or receive other pregnancy-related care-will always be women. . . Thus, contrary to the district court's conclusion, [the secretary] was terminated not for the gender-neutral condition of infertility, but rather for the gender-specific quality of childbearing capacity.'' Of further importance to the appellate court was the suspicious timing of her termination. Hall v. Nalco Co., No. 06-3684 (7th Cir., 7/16/08); 2008 U.S. App. LEXIS 15106; MoreLaw Lexapedia: http://www.morelaw.com/verdicts/case.asp?n=06-3684&s=IL&d=36533 [enhanced lexis.com version]. ADEA: lowest performer, reduction in force (RIF), termination; no pretext Illustrative; not controlling law. This 50-year-old manager was the lowest performer in the group of a dozen that included ten who were under-performers. That was persuasive to the appellate court that including her in the group of employees laid off in the RIF was not discriminatory. Also important to the appellate court was the fact that two older supervisors were deemed adequate and were not laid off. Her pretext claim was also rejected on appeal, and in it should be noted that the employer's decision process was thought to be wise. Additional evidence further convinced the appellate court to uphold summary judgment in favor of the employer. Faas v. Sears, Roebuck & Co., No. 07-2656 (7TH Cir., 7/10/08); 2008 U.S. App. LEXIS 14577; The Public Library of Law: http://www.plol.org/Pages/Login.aspx?d=DJBRkK1zqKdDxR4lthj8mQ%3d%3d&l=Cases [enhanced lexis.com version]. ADA: reasonable accommodations provided, unable to perform essential functions Illustrative; not controlling law. Despite reasonable accommodations have been provided (though perhaps late and after difficulty for the employee), she was still unable to perform the essential functions of her position after briefly doing so, but then unsuccessfully. Mobley v. Allstate Insurance Co., No. 06-3834 (7th Cir., 7/8/08); 2008 U.S. App. LEXIS 14485; The Public Library of Law: http://www.plol.org/Pages/Login.aspx?d=wtcksij8zkiOKJ57fFQ0KA%3d%3d&l=Cases [enhanced lexis.com version]. FMLA: Non-essential functions Illustrative; not controlling law. An employee returning to work after FMLA leave is not entitled under the Act to be reinstated to the same or equivalent position if he or she is unable to perform the essential functions of the job at the time they seek to return to work. However, the inability to perform a non-essential function cannot be a basis for denying reinstatement. Carstetter v. Adams County Transit Auth., No. 1:06-CV-1993 (M.D.Pa., 7/8/08); 2008 U.S. Dist. LEXIS 51874 [enhanced lexis.com version]. Privacy: electronic eavesdropping, hidden baby monitor, federal wiretap statute Illustrative; not controlling law [Note: (1) this is a trial court decision in our 10th Circuit jurisdiction (2) in which a federal statue is involved]. Smith v. NWM-Oklahoma, LLC, Inc., d/b/a LA Weight Loss Centers, 2008 U.S. Dist. LEXIS 52160 (W.D.Okla., 7/8/08). Concerning wiretaps, check http://www.law.cornell.edu/uscode/18/usc_sup_01_18_10_I_20_119.html [enhanced lexis.com version]. FMLA, Promissory Estoppel: employee not eligible, but handbook and letter language may entitle employee to similar benefits Illustrative and interesting, but not controlling law. Ooops! HR professionals and company HR staff may be wise to discuss this case with their human resources and employment law attorneys. Though the employee was not eligible for FMLA leave [his branch location had fewer than 50 employees with a 75 mile radius], the company handbook and a letter to the employee might be found at trial to have promised him leave, rights and benefits similar to that of the FMLAGilead Sciences, Inc., No. 06-4290 (7th Cir., 7/14/08); 2008 U.S. App. LEXIS 14894; Internet: http://www.ca7.uscourts.gov/tmp/FA113V7W.pdf [enhanced lexis.com version]. The appellate court's statement of the case gives you the best insight into what occurred and what may happen at trial [partially edited]: SYKES, Circuit Judge. Steven Peters suffered a shoulder injury while he was employed by Gilead Sciences, Inc. He took a relatively short medical leave to have corrective surgery, and when his condition did not improve after returning to work, he took another leave. During his second absence, Gilead filled his position with another employee, and when Peters returned to work, Gilead offered him a different position. He declined and Gilead terminated his employment. Peters filed suit against Gilead, alleging (as relevant here) a violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601 et seq., and a claim for promissory estoppel under Indiana law. Gilead moved for summary judgment on the FMLA claim, arguing that Peters was ineligible for FMLA leave based on a provision in the Act that excludes employees at worksites at which less that 50 employees are employed "if the total number of employees employed by that employer within 75 * * * miles of that worksite is less than 50." 29 U.S.C. § 2611(2)(B)(ii). It was undisputed that Gilead employed less than 50 employees within 75 miles of Peters' worksite, making him statutorily ineligible for FMLA leave. It was also undisputed that if Peters was eligible for FMLA leave, Gilead had miscalculated the 12-week duration of his leave and replaced him before it expired. Relying on language in Dormeyer v. Comerica Bank-Illinois, 223 F.3d 579, 582 (7th Cir. 2000), Peters argued that Gilead was equitably estopped from asserting the FMLA's 50/75 exclusion based on representations made in Gilead's employee handbook and in letters it sent to Peters regarding his entitlement to 12 weeks of medical leave. The district court concluded Peters had not established the elements of equitable estoppel and granted summary judgment for Gilead. We reverse. While Dormeyer suggested that FMLA eligibility might, "in an appropriate case," arise by estoppel, the issue need not have been addressed in this case. Peters alleged a state-law claim for promissory estoppel--an equitable contract remedy that permits enforcement of a promise that induces actual and reasonable reliance on the part of the plaintiff, * * * at least to the extent of the plaintiff's reliance damages. The doctrine is available when a promise lacks the elements of contract; a threshold question is whether the promise created an enforceable contract. The medical-leave representations contained in Gilead's employee handbook (repeated in its letters to Peters) may have created an enforceable contract under Indiana law, giving Peters a contractual right to the equivalent of FMLA leave (that is, 12 weeks) regardless of his statutory ineligibility. If the representations in the handbook are not contractually enforceable, Indiana's promissory-estoppel cause of action allows enforcement of Gilead's promises to the extent of the reliance harm Peters suffered. Accordingly, we need not decide whether this is an "appropriate case" to apply FMLA eligibility-by-estoppel, a possibility assumed but not decided in Dormeyer. FLSA: backpay calculation, "fluctuating workweek method", "time-and-a-half" method, "clear and mutual understanding" Controlling law. Read the full text of this complex case for a detailed explanation of how to calculate back pay for unpaid overtime. Clements v. Serco, Inc., No. 06-4316 (10th Cir., 7/1/08); 2008 U.S. App. LEXIS 13806 Internet article: http://www.plol.org/Pages/Login.aspx?d=19pZDZ2aTL4lTWkJ4vouRw%3d%3d&l=Cases [enhanced lexis.com version]. PDA: Pregnancy Discrimination Act, disparate treatment
- The city of Albuquerque Police Department required two of its pregnant officers to exhaust their accrued sick leave before taking maternity leave under the FMLA, and they were not allowed use their accrued compensatory time for their leave. - However, evidence showed that other officers who took time off for reasons unrelated to pregnancy (but still protected by the FMLA) were allowed to use their compensatory time before dipping into their sick leave.
- The city claimed that it was simply following departmental policy, though the trial record showed the policy itself had only been in draft form when the officers took maternity leave, i.e., not yet in effect. - Also, the appellate court found that a reasonable jury could find the personnel director did not make "a good faith mistake" about the policy because evidence showed she had previously singled out the FMLA leave requests of eight pregnant women by requiring them to use sick time for maternity leave and did so despite knowing a departmental review of such actions was in progress. ADEA: EEOC Privacy Act § 83.1 for ADEA cases, Freedom of Information Act (FoIA), objection to disclosure Illustrative; not controlling law. This DC Circuit case held that the EEOC could not release confidential information pursuant the EEOC Privacy Act § 83.1 for ADEA cases when the employer objected to the EEOC subpoena for documents. The employer has a right to petition for review of the matter and request an injunction against disclosure if that would be appropriate. Protection of certain confidential information, trade secrets, medical maters, and other information is a part of civil litigation procedural rules and case law, which the trial judges applies in reviewing such information to determine whether or not disclosure ought to be made. Venetian Casino Resort, LLC v. EEOC, No. 06-5361 (DC Cir., 6/27/08); 2008 U.S. App. LEXIS 13534 [enhanced lexis.com version]. Pregnancy Act: summary judgment, factual dispute Illustrative; not controlling law. Summary judgments are appropriate where there is no genuine factual dispute and a party is entitled to judgment as a matter of law, which avoids a trial. In this case there were factual questions about the employer's possible discriminatory behavior and motivations that a jury needed to examine and decide, so summary judgment in favor of the employer was reversed by the appellate court: - sigh by supervisor when employee advised him of her pregnancy and then asking her if she would keep the baby, and Download 5.55 Mb. Share with your friends:
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