Human resources & employment law cumulative case briefs

FMLA: discrimination, "severe work restrictions", failure to obtain work release, "unbroken chain of events"; prescription drugs, safety concerns; leave, interference, retaliation; termination, wrongful discharge; jury issues

Title VII: hostile work environment; summary judgment

- wetback,

- brown cow,

-terrorist in a miniskirt

- Mexican brain can't understand figures, etc.

On the other hand, there were other factors, such as:

- admitted socializing with her boss outside of work,

- a week of vacation together with their spouses, and

- initiation of lunch by a card describing him as a "great boss".
[Note: Let's review some major case law to put this decison in perspective:

- From Oncale v. Sundowner Offshore Services, Incorporated:

- A hostile work environment exists if the workplace is "permeated with discriminatory intimidation, ridicule, and insult * * * that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 126 L. Ed. 2d 295, 114 S. Ct. 367 (1993) (internal citation and quotation omitted) [enhanced lexis.com version]. The conduct in question must be judged by both a subjective and an objective standard. See id. To determine whether an environment is hostile, courts must look at all the circumstances, including the "frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Faragher v. Boca Raton, 524 U.S. 775, 787-88, 141 L. Ed. 2d 662, 118 S. Ct. 2275 (1998) (internal quotation and citation omitted) [enhanced lexis.com version].

-Justice Scalia cautioned that Title VII is not a general civility code. He stated the Court has "never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations".

- In the ABA Journal, May 1998, Signs of Disagreement: Four important conclusions were stated:

(1) Title VII's prohibits discrimination because of sex protects both male and female employees from sexual harassment regardless of the harasser's gender,

(2) illegal harassment can be motivated not only by sexual desire but also by hostility,

(3) the ultimate test is whether the harassment is so severe as to constitute actual "discrimination because of sex" - the behavior must be "so objectively offensive as to alter the conditions of the victim's employment" and put him or her at a disadvantage compared to others because of sex, and

(4) Common sense and social context count.]

Title IX: educational institution, gender discrimination, intentional disregard of sexual misconduct

Simpson and Anne Gilmore (Plaintiffs) claim that they were sexually assaulted on the night of * * * December 7, 2001, by football players and recruits of the University of Colorado at Boulder (CU). They brought this action against CU under Title IX of the Education Amendments of 1972. See 20 U.S.C. §§ 1681-1688. The district court granted summary judgment for CU, see Simpson v. Univ. of Colo., 372 F. Supp. 2d 1229, 1246 (D. 2005), and later denied motions to alter or amend the judgment and to reopen discovery. Plaintiffs appealed these rulings in our case number 06-1184. Later the district court denied a second motion for relief from judgment. Plaintiffs appealed that ruling in our case number 07-1182. We grant Plaintiffs' motion to consolidate the two appeals. Two amicus curiae briefs have been submitted by organizations in support of Plaintiffs' position. * * * We have jurisdiction under 28 U.S.C. § 1291. In our view, the evidence presented to the district court on CU's motion for summary judgment is sufficient to support findings (1) that CU had an official policy of showing high-school football recruits a "good time" on their visits to the CU campus, (2) that the alleged sexual assaults were caused by CU's failure to provide adequate supervision and guidance to player-hosts * * * chosen to show the football recruits a "good time," and (3) that the likelihood of such misconduct was so obvious that CU's failure was the result of deliberate indifference. We therefore hold that CU was not entitled to summary judgment. Because we reverse and remand for further proceedings, we need not address the merits of the postjudgment motions.

ADA, ADEA, FMLA: termination, timing, deficient performance, adequate documentation, different proof for different acts
Granting FMLA leave does not automatically mean the employer regarded the employee as disabled because the proof differs for each act. This employee lost on all of her claims, and adequate documentation or deficient performance significantly aided the employer's defense against her numerous claims.
This case is controlling law in our jurisdiction.
Berry v. T-Mobile, No. 05-1533, 490 F.3d 1211 (10th Cir., 6/27/07); 2007 U.S. App. LEXIS 15258; 100 Fair Empl. Prac. Cas. (BNA) 1623; 19 Am. Disabilities Cas. (BNA) 877; Internet: http://ca10.washburnlaw.edu/cases/2007/06/05-1533.htm [enhanced lexis.com version]
Barbara Berry's deficient performance as a care team manager was well documented, that was the basis for her termination, and the trial court and the appellate court both agreed there was no illegal discrimination against her. One creative twist in the case was her claim that because her employer had granted her FMLA leave it amounted to proof that her employer regarded her as disabled. Proof under the FMLA requires a serious medical condition, whereas the ADA requires proof of substantial limitation of one or more major life activities, and seldom to the two overlap.
The Tenth Circuit court of Appeals decision stated:
After T-Mobile USA, Inc. (T-Mobile) terminated Barbara Berry's employment, she filed an action claiming the termination violated the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213, Title VII of the Civil Rights Act (sex discrimination), 42 U.S.C. § 2000e, and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621. She also alleged breach of implied contract and promissory estoppel. The district court granted summary judgment in favor of T-Mobile concluding Berry was an "at-will" employee. The court also determined: (1) Berry was not "disabled" under the ADA because she had not shown her disability severely * * * impacted a major life activity, and (2) she failed to establish pretext in relation to her gender and age discrimination claims. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM.

Title VII: gender discrimination, disparate treatment, disparate impact; McDonnell Douglas, pretext; summary judgment

- disparate treatment involves intentional denial of employment, promotion, raise, etc., to a person because of his or her protected status, whereas,

- disparate impact involves a systematic practice and/or policy that disproportionately affects a person or persons in a protected class, no matter what the employer's intentions might have been.
Once again, the court refused to micromanage or to second-guess business judgment because the statutory duty is to determine whether hiring or other employment actions were based on illegal discriminatory reasons - not to decide who might have had the better qualifications.
Santana, v. City and County of Denver, No. 05-1111; 488 F.3d 860 (10th cir., 5/24/07); 2007 U.S. App. LEXIS 12176; 100 Fair Empl. Prac. Cas. (BNA) 1160; Internet: http://ca10.washburnlaw.edu/cases/2007/05/05-1111.htm [enhanced lexis.com version]
Kathy Santana, a deputy with the sheriff's department, applied for promotion to Captain. Though her score was 93.3 in the skills examination, she admitted she did poorly in the interview. That caused the evaluators to question if her inability to stand the stress of that process also meant she wouldn't be able to handle the stress of a captain's duties.
Her gender placed her in a protected class, so she satisfied the first element of the McDonnell Douglas test [see numerous previous statements of that test in this database]; the employer offered a legitimate non-discriminatory reason for not promoting her, and she then had the burden of proving that was a pretext. She failed because every applicant was interviewed and ranked the same way, and she did not discredit the employer's contention that she did not answer the three interview questions completely or present herself strongly. Accordingly, her disparate impact claim failed.
However, that left her disparate impact claim. At trial she will have to prove that the department somehow has a systematic policy and or procedure that discriminates illegally against women [and intent need not be proved].

Wages: class action certified

- missed rest breaks,

- missed meal breaks,

- night employees not being timely let out of the store, and/or

- encouraged to work off of the clock.
The court noted this case is one of many similar class actions being filed nationwide.
A class actions are allowed both by state and federal district court civil procedure rule 23, as well as our state NM Minimum Wage Act and the federal Fair Labor Standards Act, which allow for collective action by employees.
Rule 23 lists four prerequisites for certification of a class action in its first subsection, (A) or (a):

(1) the class is so numerous that [individual] joinder of all members is impractical;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the interests of the class.

Additional rule requirements also need to be met, and it was found that they were.

FMLA: leave calculation
This case from outside our jurisdiction is not controlling law here, but it helps by construing two regulations: Mellen v. Trustees of Boston University, (1st Cir., 9/21/07); Internet: http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=07-1151.01A [enhanced lexis.com version].

Title VII: national origin; poor performance; McDonnell Douglas, pretext

Title VII: judgment not dischargeable in bankruptcy

ADA: procedural legal issues

Title VII: religious bias, pretext

Title VII: pre-employment waiver, background check

ADA: obesity, major life activity; no disability

Rehabilitation Act: ADA analogy, PTSD, dangerous behavior, coworkers; leave, retaliation