Human resources & employment law cumulative case briefs
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Controlling law. "Me too" evidence is a concept that relates to evidence of discrimination by other company supervisors completely unrelated to a plaintiff's age discrimination lawsuit. Over the years a theory or concept applied to one kind of discrimination often appears in other types of discrimination cases, so though this U.S. Supreme Court decision dealt with the ADEA, consider it as possibly applicable to evidence in other types of discrimination claims. Each case will handle decisions of such evidence in accordance with the unique facts of that case, i.e., a case-by-case basis. Sprint/United Management Co. v. Mendelsohn, No. 06-1221 , ____ U.S. ____, (2/26/08); 2008 U.S. LEXIS 2195 [enhanced lexis.com version]. This case holds that no per se rule categorically permits or bars evidence of discrimination by other company supervisors completely unrelated to a plaintiff's age discrimination lawsuit. Relevance is the determinative factor under Federal Rules of Evidence 401, 402 and 403. Rule 403 gives trial judges discretion to exclude evidence that is relevant but which might pose a substantial risk of unfair prejudice. NMHRA: hostile work environment, severe, pervasive, permeated atmosphere, numerous complaints, ineffective response; intentional infliction of emotional distress, prima facie tort; retaliatory constructive discharge; sufficiency of evidence; compensatory damages; punitive damages; attorney fees This NM Court of Appeals case is controlling law in this jurisdiction, and it is not proceeding to the NM Supreme Court. Littell v. Allstate Insurance Companies, 2008-NMCA-012; 2007 N.M. App. LEXIS 154; Internet: http://www.supremecourt.nm.org/opinions/VIEW/08ca-012.html [enhanced lexis.com version]. State courts seldom adopt federal law outright. Rather, they cite reasoning in federal cases that they find persuasive in deciding an issue or issues under state law. Thus, in this case a great deal of federal precedent has been found persuasive and is now part of the body of state law interpreting our NM Human Rights Act. Filed on November 21, 2007, this case was not officially published until it appeared in the State Bar of New Mexico weekly State Bar Bulletin transmitted electronically on 2/14/08. It will not be reviewed by the NM Supreme Court because no party to the case filed a petition to certify it to that court for review. Court's outline: DISCUSSION I. The District Court Did Not Abuse Its Discretion in Admitting Evidence. A. Incidents of Which the Plaintiff Was Purportedly Not Aware. B. Evidence of Matters Post dating Plaintiff's Employment with Allstate. II. There Was Substantial Evidence to Support Plaintiff's Claims of Hostile Work Environment and Retaliatory Constructive Discharge, and to Support the Jury's Award of Compensatory Damages. A. Hostile Work Environment B. Retaliatory Constructive Discharge 1. Constructive Discharge 2. Retaliation for an Act Public Policy Has Authorized or Encouraged C. Compensatory Damage for Alleged Emotional Injuries III. The District court Properly Allowed the Jury to Consider Punitive Damages IV. The Punitive Damages Award Did not Violate Due Process V. Plaintiff's Request for Attorney Fees As stated by the court: {2} Plaintiff began work as a paralegal in Allstate's Albuquerque Staff Counsel Office in 1996. In October 1998, Todd Aakhus joined the office as lead counsel. At this point, according to Plaintiff, conditions at the office changed. Aakhus regularly made sexual innuendoes and told dirty jokes that were demeaning to women. Aakhus allegedly engaged in sexual discussions and flirted with female employees, inappropriately touched female employees, commented about other employees' sexual preferences, and tolerated similar conduct by other office employees. When Plaintiff reported these occurrences anonymously to Allstate's hotline for employment disputes, Allstate investigated, but Plaintiff did not feel that Allstate did anything to resolve the situation. Also according to Plaintiff, Aakhus began treating her differently after she complained to the Allstate hotline. He became more aggressive, disciplined Plaintiff for pretextual reasons, and berated and belittled her publicly. Ultimately, when Aakhus refused to give Plaintiff a leave of absence so that she could deal with a "family crisis," Plaintiff resigned. {3} Plaintiff sued Allstate and asserted claims for violations of the New Mexico Human Rights Act, intentional infliction of emotional distress, prima facie tort, retaliatory discharge, and punitive damages. The district court entered summary judgment in favor of Allstate on Plaintiff's claim for intentional infliction of emotional distress and on her claim under the Human Rights Act to the extent it was predicated on retaliation. The case went to trial before a jury, and at the close of Plaintiff's evidence, the district court granted judgment as a matter of law in favor of Allstate on Plaintiff's claim for prima facie tort. After deliberating, the jury returned a verdict in favor of Plaintiff on her claims of hostile work environment sexual harassment and retaliatory discharge. The jury awarded Plaintiff $360,000 in compensatory damages and $1 million in punitive damages. The district court denied Allstate's subsequent motion for judgment notwithstanding the verdict or, in the alternative, for remittitur or a new trial. This appeal followed. We provide additional facts in our discussion. [Note: Detailed discussion by the court follows for seven and a half pages. Though much of the law is familiar federal authority, it is important to note how much of it has become state law.] ERISA: FAA; 401(k), defined contribution plan, fiduciary duty, breach of duty, failure to follow instructions, losses; Massachusetts Mutual Life Ins. Co. v. Russell, overruled This landmark United State Supreme Court case is controlling law in our jurisdiction. It allows a 401(k) participant to personally sue for breach of fiduciary duties resulting in losses to plan participants. A fiduciary duty is one of trust and requires loyalty, care, prudence, promptness, attention, etc., when handing the property of others. Of interest to attorneys, this case overrules the earlier USSC case of Massachusetts Mutual Life Ins. Co. v. Russell that denied plan participants the right to sue. Lesson: The implication of this decision is that ERISA plan managers need to pay close attention to their customers' instructions and investments. LaRue v. DeWolff, No. 06-856, ____ U.S. ____, (2/20/08); 2008 U.S. LEXIS 2014 (2/20/08); Internet: http://www.plansponsor.com/uploadfiles/laruesupremes.pdf [enhanced lexis.com version]. James Larue sued Dewolff, Boberg & Associates, Inc., alleging brief of fiduciary duty by failing to carry out his trading instructions and allegedly causing a loss of $150,000 to his 401(k) defined contribution plan. ERISA § 502(a)(2) provides for suits to enforce the provisions of § 409, which created fiduciary duties: Any person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this title shall be personally liable to make good to such plan any losses to the plan resulting from each such breach, and to restore to such plan any profits of such fiduciary which have been made through use of assets of the plan by the fiduciary, and shall be subject to such other equitable or remedial relief as the court may deem appropriate, including removal of such fiduciary. A fiduciary may also be removed for a violation of section 411 of this Act." 88 Stat. 886, 29 U.S.C. § 1109(a). Why did the law change? Massachusetts Mutual Life Ins. Co. v. Russell, decided by the USSC in 1985 had denied claims for losses under such plans. The reason expressed by the USSC in 2008 for now deciding otherwise is that defined benefits plans were prevalent back then and benefits amounts were secure, whereas the defined contribution plans prevalent now have no protections for the amount of benefits that an employee might obtain. LaRue alleged he lost $150,000 because DB&A failed to carry out his trading instructions, thus adversely affecting the amount of his benefits. Arbitration: arbitration, federal preemption of state law, Federal Arbitration Act, FAA This landmark United State Supreme Court case is controlling law in our jurisdiction. The decision hold that: "When parties agree to arbitrate all questions arising under a contract, state laws lodging primary jurisdiction in another forum, whether judicial or administrative, are superseded by the FAA." Preston v. Ferrer, No. 06-1463, ____ U.S. ____, (2/20/08); 2008 U.S. LEXIS 2011; Internet: http://www.law.cornell.edu/supct/html/06-1463.ZS.html [enhanced lexis.com version]. FMLA: Notice, sufficiency "The critical test for substantively- sufficient notice is whether the information conveyed to the employer was reasonably adequate to apprise the employer of the employer's request to take leave for a serious health condition that rendered him unable to perform the job." Sarnowski v. Air Brooke Limousine, Inc., No. 2144, 510 F.3d 398 (3rd Cir., 12/1/07); 2007 U.S. App. LEXIS 28668; 155 Lab. Cas. (CCH) P35,373; 20 Am. Disabilities Cas. (BNA) 100; 13 Wage & Hour Cas. 2d (BNA) 73; Internet: http://vls.law.villanova.edu/locator/3d/December2007/062144p.pdf [enhanced lexis.com version]. Title VII: religion, reasonable accommodation Illustrative, not controlling. Under Title VII an employer is not required to completely eliminate a conflict between work and religious beliefs. If a reasonable accommodation is offered, that should be sufficient. In this case the employee's request involved an extraordinary amount of hours. It is appropriate to consider the impact on both the employee and the employer. EEOC v. Firestone Fibers & Textiles Co., 2008 U.S. App. LEXIS 2949 (4th Cir., 2/11/08); Internet: http://pacer.ca4.uscourts.gov/opinion.pdf/062203 .pdf. [Note: As always, it will be important for an employer to have a valid reason adequately substantiated by documentary evidence showing valid consideration of the request and a genuine hardship for the business.] [enhanced lexis.com version] Professional Rescuers: firefighters, “firefighter rule” compared and contrasted with police, emergency response teams, and other rescuers; bystander recovery; intentional infliction of emotional distress; intentional torts; reckless misconduct; strict liability; dangerous premises or locations, preventive measures This New Mexico Supreme Court case is controlling law in our state jurisdiction, and the New Mexico Court of Appeals case that our Supreme Court reversed can provide informative background reading on the nature and extent of the situation. Any employer either providing services of emergency rescuers or possibly being a recipient of such services should thoroughly discuss this case with legal counsel. - Employers typically providing such services would be governmental agencies, though volunteer agencies and private contracting agencies may also be subject to this decision. - Employers requiring emergency services on their premises or locations that might involve gruesome injuries should also read these two cases to consider possible safety measure to prevent injuries and/or death and prevent liability.
- Baldonado v. El Paso Natural Gas Company, 2008-NMSC-005, 2007 N.M. LEXIS 697; Internet: http://www.supremecourt.nm.org/opinions/VIEW/08sc-005.html [enhanced lexis.com version] - Baldonado v. El Paso Natural Gas Company, 2008-NMCA-010, 2006 N.M. App. LEXIS 96; Internet: http://www.supremecourt.nm.org/opinions/VIEW/08ca-010.html [enhanced lexis.com version ] Title VII: discrimination sex, gender, familial status; summary judgment Controlling law in our jurisdiction. Though “familial status” is a recognized legal theory in housing discrimination claims and has some value in some jurisdictions for some other discrimination claims, our 10th Circuit Court of Appeal rejected it in a sexual discrimination claim involving a father discharged for hiring his wife and daughter in violation of the discretionary anti-nepotism policy of the non-profit organization’s handbook. Adamson v. Multi Community Diversified Services, Inc., No. 05-3478 (10th Cir., 2/1/08); 2008 U.S. App. LEXIS 2418; Internet: http://ca10.washburnlaw.edu/cases/2008/02/05-3478.pdf [enhanced lexis.com version ]. Smoking, ERISA: privacy Illustrative, creative approach, but not controlling law in our jurisdiction. An individual either not yet an employee or actually a new employee failed the company’s nicotine test, which violated the employer’s prohibition against smoking, even when not at work. One issue was employment status sufficient to qualify for ERISA protection. Asserting invasion of privacy in violation of ERISA prohibitions, the employee had a low standard to remain in court: a likely, credible interest that outweighs the employer’s interest and activities outside of work convinced the trial judge to let the case proceed past dismissal on the pleading for failing to state a claim upon which relief could be granted. Now, whether termination was an interference with an intent to interfere with ERISA employment rights is yet to be determined. §510 relates to discriminatory conduct directed against individual, not the plan in general. Rodrigues v.The Scotts Co., LLC (D. Mass., 1/30/08); Internet: http://pacer.mad.uscourts.gov/dc/cgi-bin/recentops.pl?filename=otoole/pdf/rodrigues%20v%20scotts%20co%20mot%20to%20dismiss%20order.pdf [enhanced lexis.com version]. FMLA: proposed rules changes Check this informative summary from Buchanan Ingersoll & Rooney, Proposed Rule on the Family Medical and Leave Act, February 12, 2008, by David L. Hackett, Ronald L. Platt, Mark W. Lenker and Ibie Adeyeye at http://www.bipc.com/news.php?NewsID=2589. ADA: failure to accommodate Illustrative; not controlling law. Punitive damages award of $100,000 on an $8000 compensatory damage was affirmed. FedEx failed to reasonably accommodate a package handler who qualified as legally deaf under the ADA by not providing an American Sign Language interpreter. The punitive damages ratio of 12.5:1 was also affirmed [Note: there has been some opinion that perhaps exceeding 10:1 was an outer limit.] EEOC v. Fed Ex Corp., 4th Cir., 1/23/08), Internet: http://www.eeoc.gov/press/12-22-04.html [enhanced lexis.com version]. NLRB: interrupting organizer during presentation Illustrative; not controlling law. HR staff twice interrupted a union organizers discussion with views of the employer on card signing. Those interruptions were found to be of short duration, not out of the ordinary, and not coercive. Check this case for a new three-factor test of how much intrusion might be deemed coercive. Local Joint Exec. Bd. of Las Vegas, Culinary Workers Local #226 and Bartenders Local 165 v. NLRB (9th Cir., 1/28/08) [enhanced lexis.com version]. FMLA: temporarily expanded for military Controlling law for federal Fiscal Year 2008. Section 585 of the National Defense Authorization Act for Fiscal Year 2008 ("NDAA") (H.R. 4986) amends the federal Family and Medical Leave Act of 1993 ("FMLA") to provide two new types of FMLA leave to employees with family members serving in the military. 1. The NDAA amends Section 102 of the FMLA to expand the maximum amount of time from 12 weeks to 26 weeks that an employee would otherwise be entitled to take off work to care for a family member with a serious health condition when the health condition is incurred by a member of the military while in the line of duty on active duty. 2. Employees eligible for this leave now include "next of Kin" in addition to the spouse, children and parents of the injured service member. This leave is available only during a single 12-month period and it is also combined with all other FMLA leaves, limiting FMLA leave for all purposes to no more than a total of 26 weeks of leave during a 12-month period. Internet: http://www.michaelbest.com/articles.cfm?action=view&publication_id=2006. Title VII: intentional infliction of emotional distress, retaliation
Whistleblower: wrongful discharge, intentional infliction of emotional distress claim Illustrative, but not controlling law. A nuclear medical technologist alleged he had observed and reported numerous violations of Nuclear Regulatory Commission (NRC) regulations during his tenure at the hospital, the hospital's administration allegedly ignored his reports and discouraged him from bringing violations to attention. After firing his it knowingly filed a false charge against him with the NRC to avoid NRC regulatory action against the hospital. This conduct was found to be sufficiently outrageous to state a claim for emotional distress and was allowed to proceed to jury trial. Dismissal of his wrongful discharge claim was affirmed. Kassem v. Washington Hosp. Ctr., No. 06-7161 (DC Cir., 1/22/08); 2008 U.S. App. LEXIS 1174: Internet: http://altlaw.org/v1/cases/685948 [enhanced lexis.com version]. FMLA, Pregnancy Discrimination Act: eligibility, computing hours, intermittent leave; pregnancy, termination, no pretext; termination, performance, dependability; discrimination, retaliation Valuable detailed illustration of a complex case, well worth read entire decision for helpful guidance, but not controlling law in our jurisdiction. As usual, the Internet URL below will provide you with the full text of this instructive opinion. Accurately counting the 1250 hours in a 12 month period required for FMLA leave is important. This employee claimed 2,300 but did not have sufficiently detailed records. On the other hand her employer's detailed records showed she had worked 1,127 hours (and 41 minutes) in the 12 months prior to her request for intermittent leave. Detailed records and a detailed written explanation of the basis for her termination were sufficient for summary judgment dismissal of her claim, and the employer avoided trial. Staunch v. Continental Airlines, 07-3315 (6th Cir., 1/808); 2008 U.S. App. LEXIS 196; 2008 FED App. 0004P; Internet: http://www.ca6.uscourts.gov/opinions.pdf/08a0004p-06.pdf [enhanced lexis.com version]. Holly L. Staunch sued for denial of her alleged FMLA rights, for violation of the Pregnancy Discrimination Act, and for retaliation. Intertwined with these claims were issues of poor performance and undependability. Accurate and detailed documentation warning, counseling and documenting provided a solid basis for ruling in favor of the employer. The evidence of Continental Airlines clearly showed she had worked less than the 1250 hours in the 12 months before her leave, she could not successfully refute that evidence, and the court found she was not an employee eligible for FMLA leave. Her allegations of Pregnancy Discrimination Act failed because she did to prove that her employer's evidence of a valid business reason for her termination was a pretext. And finally, her retaliation claim failed for lack of sufficient evidence. ADA: regarded as, jury instruction refused Illustrative; not controlling law in our jurisdiction. Because the employer's understanding of the employee's work restrictions were based on here treating physician's written work restrictions, abiding by them did not amount to the employer stereotypically regarding the employee as disabled in violation the ADA. Gruener v. Ohio Cas. Ins. Co., No. 05-4220 (6th Cir., 1/3/08); 2008 U.S. App. LEXIS 30; 2008 FED App. 0001P (6th Cir.); Internet: http://www.ca6.uscourts.gov/opinions.pdf/08a0001p-06.pdf [enhanced lexis.com version]. NLRB: illegal workers, NLRA rights Be aware of this federal appellate court decision from outside of our federal jurisdiction holding that illegal undocumented alien workers will be considered as employees protected under the National Labor Relations Act, even for voting. This DC Circuit case is but one of many decisions making similar rulings, so it is an import one to bear in mind. Agri Processor Co. v. National Labor Relations Board, No. 06-1329 consolidated with 06-1349 (DC Cir., 1/4/08); 2008 U.S. App. LEXIS 101; Internet: http://www.ll.georgetown.edu/federal/judicial/dc/opinions/06opinions/06-1329a.pdf [enhanced lexis.com version]. NLRB: email policy, no union solicitation, use of company email limited to non-work matters Controlling law [for now, at least, because NLRB decisions can change more readily than judicial decisions]. The Register-Guard newspaper of Eugene, Oregon, written policy prohibited use of email to "non-job related solicitations", though in practice it allowed some non-work-related emails. No evidence was presented that it permitted emails soliciting support for groups or organizations. When the president of the newspaper's Newspaper Guild organization sent union email messages the company sent her two written warnings to stop using the company system for such communication. Relying on prior reasoning of the 7th Circuit Court of appeals distinguishing between personal non-work-related matters and work-related matters, the National Labor Relations Board ruled in favor of the employer. The Guard Publishing Company d/b/a The Register-Guard and Eugene Newspaper Guild, CWA Local 37194, Nos. 36-CA-8743-1, 36-CA-8849-1, 36-CA-8789-1, and 36-CA-8842-1 (NLRB, 12/16/07); Internet: http://www.nlrb.gov/shared_files/Board%20Decisions/351/V35170.pdf [enhanced lexis.com version]. [Note: Check at http://www.brgslaw.com/pdf/RSRe-mailArticle.PDF for a news article that the NLRB has issued new regulations consistent with the ruling in this case.] Title VII: Transsexual; gender stereotyping; McDonnell Douglas test, pretext The employee was transitioning from male to female, and as is often the case, the dispute was which toilet facilities could be used. Transsexuals are not expressly protected by federal law, so the employer's motion for summary judgment (dismissal without trial) was granted. Another approach might have been for the employee to have alleged gender stereotyping, which refers to discrimination based on a person being perceived as not behaving like a typical man or woman might, i.e., either a man acting too feminine or a woman acting too masculine. Though gender stereotyping would not have succeeded in this particular case, it is important to note that this decision indicates our 10th Circuit Court of Appeals seems willing to decide an appropriate case of gender stereotyping in the future. Download 5.55 Mb. Share with your friends:
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