Human resources & employment law cumulative case briefs
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| Had this case involved a similar set of facts in New Mexico, it might have succeeded if a violation of the NM Human rights had been alleged. NM has not decided the toilet issue, but Minnesota has under its essentially similar law involving the Moines case: after the genital operation, the change in toilet use can be made.
This Etsitty case is controlling law in our jurisdiction. Etsitty v. Utah Transit Authority, No. 05-4193, 502 F.3d 1215 (10th Cir., 9/20/07); 2007 U.S. App. LEXIS 22989; 101 Fair Empl. Prac. Cas. (BNA) 1357; Internet: http://www.ca10.uscourts.gov/opinions/05/05-4193.pdf [enhanced lexis.com version]. The federal courts decided against Krystal Etsitty on the grounds that federal law does not expressly protect transsexuals, and the transit authority had a valid concern over potential litigation from the public concerned over which toilet facilities Etsitty was using. Proof of indirect discrimination is handled by the McDonnell Douglas test: 1. An employee must first present a prima facie case [basically legally sufficient] of discrimination. 2. If the employee does so, the burden then shifts to the employer to produce a legitimate, nondiscriminatory justification for taking the disputed employment action. 3. If the employer satisfies this burden, the employee then must provide evidence that the employer's proffered reasons are merely a pretext for discrimination. Though the requirement to present evidence shifts back and forth, the employee always has the burden of proving illegal discrimination.
ADEA: rudeness; McDonnell Douglas test, no pretext; no disparate treatment; summary judgment in favor of employer Cranky behavior is not limited to any particular age group. Controlling law in our jurisdiction. Riggs v. Airtran Airways, Inc., No. 06-3250, 497 F.3d 1108 (10th Cir., 8/8/07); 2007 U.S. App. LEXIS 18769; Internet: http://ca10.washburnlaw.edu/cases/2007/08/06-3250.htm [enhanced lexis.com version]. The employee's rudeness to customers was a valid, non-discriminatory reason for firing her. ADA, FMLA: termination, discipline, attendance, valid business reason Illustrative, but not controlling law in our jurisdiction. Holding that "[R]egular and reliable attendance is a necessary element of most jobs," the court found no reason to decide against the employer. The employee neither notified her employer that her absences were because of a serious medical condition, i.e., depression, as required by the FLSA, nor did she request a reasonable accommodation under the ADA. Rask v. Fresenius Med. Care. N. Am., No. 06-3923 (8th Cir., 12/6/07); 2007 U.S. App. LEXIS 28198 [enhanced lexis.com version]. ADEA: reduction in force, RIF, prima facie requirements, similarly situated job, comments not sufficiently related to layoff decision, Reeves v. Sanderson Plumbing Prods., Inc. Illustrative, but not controlling law in our jurisdiction. Elimination of a job in a RIF does not automatically provide a basis for an age discrimination claim. Factors to be considered include: - The case of Reeves v Sanderson Plumbing Prods, Inc., did not address prima facie requirements in the RIF context, - assumption of the employee's duties by a younger worker does not in and of itself create an inference that the employment decision was based on unlawful criterion, - evidence by the 53 year-old employee that 71 percent of the eliminated jobs were held by workers over age 50 was meaningless by itself [i.e., needs other evidence of discrimination], - evidence that a younger worker was promoted to a similarly-titled job two years after the RIF did not create an inference of bias, - nor were remark from a supervisor or manager in another department that a worker's job was going to someone younger, or a plant manager's comment that all positions (not employees) considered were eliminated sufficient to prove age discrimination. Int'l. Paper. Co., No. 06-2256 (8th Cir., 12/5/07); 2007 U.S. App. LEXIS 28006; 102 Fair Empl. Prac. Cas. (BNA) 167; 90 EPD 43,041 CCH [enhanced lexis.com version]. Title VII: gender, hostile work environment, retaliation
ADA: nurse, chemical dependency, narcotics, prior drug theft, unable to reasonably accommodate; major life activity not substantially limited This case is not controlling law, but it illustrates that her conduct of being previously fired for Vicodin theft, not her drug dependency, was the cause for her dismissal. No reasonable accommodation could be found for her in the ward in which narcotics were administered to children an essential function of her job. Further, her successful employment as a nurse at other types of facilities defeated her claim of being disabled from a broad range of employment. Dovenmuehler v. St. Cloud Hospital, No. 07-1096 (8th Cir., 12/4/07); 2007 U.S. App. LEXIS 27953; Internet: http://www.ca8.uscourts.gov/opndir/07/12/071096P.pdf [enhanced lexis.com version]. Title VII: "cultural authenticity", essential function Not controlling law in this jurisdiction, but illustrative of the need for adequate performance. Disney's Epcot Center runs a restaurant with a Norwegian theme, had a business need for "cultural representatives" to interact with guests to share the culture, tradition, language and history of the country they represent. Gupta, an Asian employee, had very limited knowledge of the Norwegian culture and had only visited the country for a couple of days. He was discharged for deficient qualifications, as was another similarly deficient employee, and thus there was no disparate treatment of Gupta. Summary judgment in favor of the employer was affirmed. Gupta v Walt Disney World Co., No. 07-11409 (11th Cir., unpublished, 11/27/07); 2007 U.S. App. LEXIS 27503; Internet: http://vlex.com/vid/32458595 [enhanced lexis.com version]. Title VII: gender, transsexual, stereotypes Not controlling, but illustrative. Schroer was in the process of changing gender from male to female. Transsexuality was not a bar to this gender discrimination claim. One need not conform to an employer's stereotypical notions of gender appearance and behavior. Schroer v. Billington (DDC, 11/2807) Title VII: sexual harassment, spoken and physical assault, confusing and ineffective policies; retaliation Strong illustration, though not controlling law in our jurisdiction. Going to jury trial is this case in which a manager allegedly commented inappropriately to a 16 year old female and also physically propositioned her. The employer lost on two points: 1. Harassment because the employer's harassment prohibition and prevention policies were confusing and ineffective. 2. Retaliation against the young woman by the adverse employment action of firing her after her mother complained to the employer. EEOC v. V&J Foods, Inc., No. 07-1009, (7th Cir., 11/ 7/07): 2007 U.S. App. LEXIS 25856; 101 Fair Empl. Prac. Cas. (BNA) 1676; Internet: http://www.altlaw.org/v1/cases/194530 [enhanced lexis.com version]. FLSA: exempt, independent judgment, managerial duties Not controlling law in our jurisdiction, but this is persuasive reasoning and a valuable example of judicial interpretation of the new overtime exemption regulations. Often courts must examine the actual circumstances to decide not necessarily covered in agency regulations because not everything can be anticipated and the courts often have to consider the intent of the law. Cash v. Cycle Craft Co., Inc., No. 07-1768 (1st Cir., 11/20/07); 2007 U.S. App. LEXIS 26808; Internet: http://www.ca1.uscourts.gov/pdf.opinions/07-1768-01A.pdf [enhanced lexis.com version]. Cycle's "customer relations manager" created his own proposed job description, though as a practical matter he did not perform all of the duties described in it. Nonetheless, the appellate court found he met the requirements for the administrative exemption and was thus not entitled to overtime pay: - his $60,000 salary was equal to or greater than that of other managers, - he usually attended at least the first part of management meetings to report on status of motorcycles on order (and then was told to leave), but - he did not supervise or manage other employees. The appellate court reasoned that: - he was paid a salary, - his primary duty was related to management, and - he "did not simply produce a product; he exercised independent judgment as he engaged in the company's business operations." Title VII: religion, performance, personal religious beliefs
- she discarded the school's instructional materials on how to use condoms, - ordered literature on abstinence, and - prayed with students in her office. The appellate court pointed out that even in a small, rural Christian school district such as this one, "[t]eachers and other public school employees have no right to make the promotion of their religion a part of their job description and by doing so precipitate a possible violation of the First Amendment's establishment clause. Title VII: effective anti-harassment policy, failure to follow; adverse employment action, resignation, no constructive discharge Not controlling law in our jurisdiction, but a good example of how an employee trained by the company about its anti-harassment policy lost her claim because she failed to follow the policy. Essentially, a complaining employee must allow the employer to take prompt, appropriate remedial action because one of the purposes of the anti-harassment laws is to provide a workplace for all employees that is free of such discriminatory behavior. The employee defeated her claim by resigning before the employer could attempt to remedy the problem. Brenneman v. Famous Dave's of Am., Inc., No. 06-1851 (8th Cir., 11/16/07) 2007 U.S. App. LEXIS 26558; Internet: http://www.altlaw.org/v1/cases/218600 [enhanced lexis.com version] This employer had an effective anti- harassment policy established and had properly trained its employees about it, which is reasonable care taken to prevent harassment. After the alleged harassment incident it continued to investigate, proposed solutions and asked the victim to return to work after she had resigned. That resignation was not deemed to be an adverse employment action of constructive discharge (i.e., the employee was not essentially forced out). The appellate court found that she unreasonably failed to take advantage of the assistance offered by her employer, even though she claimed she feared adverse repercussions. Importantly, she needed to cooperate with her employer to improve her working conditions. Title VII: decisionmaker, adverse information, relevance Remember, if the decisionmaker in an adverse employment action does not have unfavorable discriminatory information or does not have the discriminatory mindset of others, a discrimination claim may fail. This case is not controlling law in our jurisdiction, but it illustrates that relevance is important: - some employee had written "sexually tinged" poems received by a female coworker, - the decisionmaker's information was that expert handwriting analysis determined that the employee in question had likely written those poems, and - there was no evidence that the decisionmaker shared the sentiments age bias of two other managers. Critical in these cases is what the decisionmaker believed at the time of taking the adverse employment action. Bennett v. Saint-Gobain Corp., No. 07-1219 (1st Cir., 11/2/07); 2007 U.S. App. LEXIS 25586; Internet: http://www.ca1.uscourts.gov/pdf.opinions/07-1219-01A.pdf [enhanced lexis.com version] Arbitration: FMLA, company policy, binding effect, no signature, Federal Arbitration Act, no signature Though not controlling law in this jurisdiction, this case enforced a policy to arbitrate pursuant to the Federal Arbitration Act even though the employee did not expressly assent to be bound by the policy, which stated that "continuing employment with [the company] means that you agree" to its terms, and the employee had continued working with the company after being informed of the policy. Seawright v American Gen. Fin. Serv., No. 07-5091 (6th Cir., 11/1307); 2007 U.S. App. LEXIS 26328; 2007 FED App. 0451P (6th Cir.); Internet: http://www.ca1.uscourts.gov/pdf.opinions/07-1219-01A.pdf [enhanced lexis.com version] Title VII: gender harassment, negligent response, insufficient follow-up Here is another good illustration from a case that demonstrates a valid point even though it is not controlling law in our jurisdiction. Disciplined twice for harassing two female employees and having been warned in writing of immediate termination if it occurred again, the employee allegedly continued, as did complaints from the women. Not only did the employer not terminate the offender, it decreased rather than increased its threatened sanctions. The targets contended such insufficient response by the employer likely emboldened that offender to continue his harassment, and the appellate court noted that a reasonable jury could find the employer was liable for negligent response. Engel v. Rapid City Sch. Dist., 8thCir, November 9, 2007); 90 EPD 43,011); Internet: http://www.ca8.uscourts.gov/opndir/07/11/063936P.pdf [enhanced lexis.com version] Title VII: religion, reasonable accommodation, flex-time, interactive process, employee failure to respond This case is not controlling law in our jurisdiction, but it illustrates the importance of reasonable accommodation and the need for both employer and employee to engage in an interactive accommodation process. An employee of the Seventh Day Adventist faith working as a unit secretary in a medical center requested accommodation to not work Friday or Saturday shifts from 3 p.m. to 11 p.m. Her employer did not terminate her, but several times offered her via telephone and letter alternative flex time positions. The employer's shift rotation system was neutral, the employer allowed her to swap shifts, it did not discipline her for missing some scheduled shifts, and it encouraged her to transfer to another position. She failed to respond to those reasonable offers and her religious discrimination claim was dismissed. Morrissette-Brown v. Mobile Infirmary Med. Ctr., (11th Cir., 11//7/07), 90 EPD 43,001; Internet: http://www.ca11.uscourts.gov/opinions/ops/200614082.pdf [enhanced lexis.com version] Title VII: gender discrimination, disparate treatment, similarly situated employee, union; beach of duty to represent fairly Less aggressive union representation of a female members compared with similarly situated male members was a breach of the union's duty to pursue a grievance. This case is not controlling law in our jurisdiction, but it illustrates a good point. Beck v United Food and Commercial Workers Union, Local 99, No. 05-16414 (9thCir, 11/1/07); 2007 U.S. App. LEXIS 25505; Internet: http://www.ca9.uscourts.gov/ca9/newopinions.nsf/04485f8dcbd4e1ea882569520074e698/dd65ba6bbd0cc48b88256a4f005b6b5f/$FILE/9971317.pdf [enhanced lexis.com version] Title VII: adverse employment action This case failed because the employee's allegations of interference with his managerial prerogatives because they did not (1) tend to materially impair either his job performance or (2) advancement prospects and thus were not adverse employment actions. Neither was his transfer an adverse employment action because it was made in response to his previous request. This case is not controlling law in our jurisdiction, but it illustrates a good point. Patterson v Johnson, No. 05-5415 (DCCir., 10/3007); 2007 U.S. App. LEXIS 25353; , 90 EPD 42,997; Internet: http://pacer.cadc.uscourts.gov/docs/common/opinions/200710/05-5415a.pdf [enhanced lexis.com version] EPLI: Employment Practice Liability Insurance Failure to timely notify the insurance carrier of a claim, in this case an EEOC charge, defeated the employer's demand for coverage after it had defended and settled a claim. This case is not controlling law in this jurisdiction, but it illustrates a critically important point. American Center for Int'l Labor Solidarity v. Federal Insurance Co., No. 04-01523 (CKK) (D.D.C., 10/15/07); Internet: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2004cv1523-27 [enhanced lexis.com version] FLSA: exempt status, overtime pay, non-managerial tasks This case is not controlling law in our jurisdiction, but it shows an interesting interpretation of managerial status. Thomas v. Speedway Superamerica, LLC, No. 06-3768 (6th Cir., 10/30/07); 2007 U.S. App. LEXIS 25355; 2007 FED App. 0436P (6th Cir.) [enhanced lexis.com version]. Mabel Kay Thomas spent about sixty percent of her day at work performing non-managerial tasks, but management was her primary duty as manager of a branch of a retail chain. Because she was manager she was a bona fide executive employee under the FLSA and was not entitled to overtime pay, and regular visits and phone calls from the district manager, her direct superior, did not alter her executive status. Illegal alien workers: criminal convictions Here is a warning to heed from a case that is outside of our jurisdiction. Though it is not controlling law here, it raises the stakes for those too close to the line for an immigration law violation. U.S. v Khanani, (11th Cir., 10/2/07) [enhanced lexis.com version] Criminal convictions of a Florida retail store owner and his accountant were upheld for violations of the Immigration Reform and Control Act (IRCA). The criminal charge was for "harboring, encouraging or inducing aliens to enter or reside illegally in the US". The defendants contended that "merely" employing illegal aliens did not support felony convictions. They had requested that the trial judge instruct the jury that mere employment was insufficient to support criminal convictions. The trial judge refused that request, and the appellate court affirmed that ruling. Title VII: gender discrimination, severe, pervasive, pattern and practice; class action, punitive damages, bifurcated trial This case will mainly be of interest to trial attorneys, and it is not controlling law in this jurisdiction. EEOC v International Profit Associates, Inc., (N.D. Ill., 10/23/07) [enhanced lexis.com version] [Note: no additional citation information found] Punitive damages are at issue in this gender discrimination class action case brought by the EEOC in the U.S. District Court, Northern District of Illinois. The trial judge has ruled that the EEOC will not be able to prove punitive damages on a class-wide basis in this pattern or practice case. Instead, the trial will be bifurcated [split into two parts], liability and then damages. Liability will be determined in the class action part of the trial, and if the defendant is found liable, then the EEOC would be granted injunctive relief [but not damages at that point]. If the jury finds the defendant liable, then the second phase of the trial will deal with damages, compensatory and punitive. Further, the trial judge ruled that the EEOC must prove in both phases of the trial that the harassment was sufficiently severe or pervasive to be sufficient to prove liability, and this is a change from an earlier ruling in that district that would have allowed a "rebuttable presumption of individual liability to all women in the workplace." [Note: Now those of you who are not lawyers will see why only lawyers will primarily be interested in this case.] ADA: failure to accommodate, tardiness, handicapped, parking space, wheelchair obstacles, interactive process $100,000 is a costly price for failing to engage in an interactive process to see if there is a reasonable accommodation. Modification of a work schedule is recognized as a possible one under the ADA. This case is not controlling law in our jurisdiction, but it is an excellent illustration of what to do and not to do. EEOC v. Convergys Customer Management Group, Inc., No. 06-2874 (8th cir., 7/6/07); Internet: http://www.ca8.uscourts.gov/opndir/07/07/062874P.pdf [enhanced lexis.com version] Ahmet Yigit Demirelli was frequently tardy for a number of reasons: - only two spaces were reserved for handicapped employees, - cubicles in the call center were not assigned, - aisles were narrow and difficult to navigate in a wheelchair, - a number of workstations were inoperable and searches for an unoccupied operable one was difficult, and - his request for a reserved operable station was initially granted but later revoked. Demirelli's efforts to be on time were: - arriving at work an hour early, - parking at a movie theater parking lot (though the ten minute trip proved too difficult), - requesting a reserved work station, - requesting a different shift, and - requesting a modified work schedule An employee has an obligation to make known to the employer the need for accommodation, and once the employer is notified the employer and employee need to engage in an interactive process to try to find a reasonable appropriate accommodation. The appellate court found that the employer failed to do that and that the employee had made a number of reasonable efforts to solve the tardiness problem. Convergys argued that punctuality was an essential function of the job, but failed to produce substantiating evidence. A modified work schedule is one of the accommodations recognized by the ADA. The $100,000 jury verdict was affirmed. Title VII: religion, sabbath; accommodation, Pyro Mining test; discrimination, McDonnell Douglas test, Burlington Northern test; summary judgment Religious discrimination is a sensitive and difficult topic because strong beliefs and emotions often are involved. This case is not controlling law in our jurisdiction, but it illustrates the legal laws, precedents and considerations involved. Tepper v. Potter, No. 06-4182 (6th Cir., 10/15/07); 2007 U.S. App. LEXIS 24090; 2007 FED App.; Internet: http://www.michbar.org/opinions/us_appeals/2007/101507/37349.pdf [enhanced lexis.com version] Download 5.55 Mb. Share with your friends:
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