Human resources & employment law cumulative case briefs
Jurisdiction: Seventh Circuit
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Jurisdiction: Seventh Circuit Brotherhood of Maintenance of Way Employees Division/IBT v. Norfolk Southern Railway Company, No. 12-3415 (7th Cir., 3/11/14):
Courts often defer to the expertise and experience of administrative agencies, which ultimately happened here. The employee claimed he injured his head on the truck cab when he drove over a bump in the road. He was fired after an investigation of whether the accident report was based on false statements. The employer had withheld the report of its expert witness until the hearing. The union unsuccessfully appealed termination of his employment. Next, the union sued in a separate action for a permanent injunction to limit the employer’s use of such expert reports in future employee investigations unless it followed certain due process (“fair and impartial”) procedures. The trial court dismissed that claim for lack of jurisdiction subject matter jurisdiction. Reversed by the court of appeals. Summary and background by the appellate court: The Brotherhood of Maintenance Way Employees (“the Brotherhood”) filed for a permanent injunction to ban Norfolk Southern Railway Company’s (“Norfolk”) use of accident reconstruction reports in employee disciplinary investigations unless Norfolk adheres to additional pre-hearing procedures. The United States District Court for the Northern District of Illinois found that it lacked jurisdiction to grant the Brotherhood’s request and dismissed the action. The Brotherhood appealed. I. BACKGROUND The Brotherhood represents members of the maintenance-of-way craft employed by Norfolk. Maintenance-of-way members work to ensure that railways remain clear, safe, and navigable. This lawsuit arose after Norfolk fired four of its employees, all Brotherhood members, because they made false statements about injuries they suffered while on duty. The parties’ collective bargaining agreements entitle the Brotherhood members to an investigation before Norfolk takes any disciplinary action. The Brotherhood and Norfolk dispute what evidentiary rules and pre-hearing procedures are required in those investigations. Their collective bargaining agreements and the Railway Labor Act govern the disciplinary process. In this case, the Brotherhood does not seek to overturn any prior disciplinary actions, only to impose new procedures that it believes will rectify problems in the Norfolk disciplinary proceedings. Title VII: race, retaliation, misconduct, adverse employment action, summary judgment dismissal affirmed. Jurisdiction: First Circuit Pina v. The Children's Place, et al., No. 13-1609 (1st Cir., 1/27/14) [enhanced lexis.com version]: This employee was fired for misconduct, not for any protected status or activity. Summary of the appellate court: Jamilya Pina ("Pina") appeals from the district court's grant of summary judgment in favor of her former employer, The Children's Place Retail Stores, Inc. ("TCP"), and TCP District Manager Jean Raymond ("Raymond"). Pursuing claims of employment discrimination and retaliation, Pina asserts that she was fired, harassed, and not rehired on the basis of race in violation of 42 U.S.C. § 1981 and Massachusetts General Laws chapter 151B, section 4. She argues that the district court abused its discretion by denying three of her discovery motions, and that it erred by granting Appellees' motion for summary judgment. Finding no error or abuse of discretion, we affirm. Litigation, FEHA: statute of limitations – contract – shortening, public policy, harassment – sex Jurisdiction: California Ellis v. U.S. Security Associates, No. A13602 (3/20/14) http://www.courts.ca.gov/opinions/documents/A136028.PDF [enhanced lexis.com version]. Summary by the appellate court: Appellant Ashley Ellis went to work for respondent U.S. Security Associates (U.S. Security) in September 2009, as a security guard. Quickly promoted, Ellis came under the supervision of Rick Haynes, who began sexually harassing her in August 2010. Employees complained to U.S. Security, and Haynes was counseled, apparently to no avail, and he was terminated in December 2010. Ellis was again promoted, but never to be paid the raise she was promised , and she resigned in January 2011. In November 2011, Ellis filed a complaint alleging three claims under the Fair Employment and Housing Act (Government Code § 12900 et seq.) and two nonstatutory claims, claims clearly timely under the applicable statute s of limitations. U.S. Security nevertheless moved for judgment on the pleadings, based on Ellis’s signed application for employment where she agreed that “any claim or lawsuit . . . must be filed no more than six (6) months after the date of the employment action, ” and she waives “any statute of limitations to the contrary.” In a seven line order, without discussion or explanation, the trial court granted the motion and dismissed Ellis’s complaint, apparently concluding that the shortened limitation provision was enforceable. We conclude otherwise, and reverse, holding that the shortened limitation provision is unreasonable and against public policy. NLRA: non-union, company confidentiality policies –– common misunderstanding, unfair labor practice (ULP) Jurisdiction: Fifth Circuit [but an important reminder for all jurisdictions] Flex Frac Logistics, L.L.C., et al., v. National Labor Relations Board, No. 12-60752 (5th Cir., 3/24/14):
A common erroneous concept in companies without unions is that a broad blanket policy on confidential information is legal. Unfortunately, that is incorrect. For example, often employees are instructed not to discuss, salaries, bonuses, benefits, etc. Be aware the NLRA allows employees to engage in concerted activities, such as doing just that – discussing terms and conditions of employment, safety, etc. Though confidentiality is important on many matters, there are some activities and discussions that are protected, and both the article and case cited are essential reading for non-union companies. Summary by the appellate court: Flex Frac Logistics, L.L.C. and Silver Eagle Logistics, L. L.C. (collectively, “ Flex Frac ”) petition for review of an order by the Nation al Labor Relations Board (“NLRB”) holding that Flex Frac’s employee confidentiality policy is an unfair labor practice in violation of Section 8(a)(1) of the National Labor Relations Act (“NLRA”). The NLRB cross-petitions for enforcement of the order. We DENY Flex Frac’s petition for review and ENFORCE the NLRB’s order. NLRB: company policy – email, ethics, discrimination, adverse employment action – reprimands, NLRA § 8(a)(1), concerted activity – terms and condition of employment Jurisdiction: All California Institute of Technology Jet Propulsion Laboratory, No. 350 NLRB 64(3/12/14):
Years of legal precedents have held that company bulletin boards, email systems, etc., allowing content not related to work (fund raising, things for sale, etc.) must also allow content relating to work issues protected by the NLRA. In this case, the company tried to rely on its “ethics” policy to disallow concerted activity of employee emails commenting on a new background check requirement. It lost. The law firm article provides a good discussion of this area of labor law. Arbitration: class action waiver, FLSA collective action, “non-waivable substantive right”, Federal Arbitration Act (FAA) Jurisdiction: Eleventh Circuit Walthour v. Chipio Windshield Repair, LLC, (11th Cir., 2/21/14); http://www.ca11.uscourts.gov/opinions/ops/201311309.pdf [enhanced lexis.com version]. There is very strong judicial support for arbitration – summary by the appellate court: Plaintiffs-appellants Ashley Walthour and Kevin Chappell appeal the district court’s order compelling arbitration and dismissing their complaint filed against defendants-appellees Chipio Windshield Repair, LLC; Kingco Promotions, Inc.; Levaughn Hall; and several “John Does.” This appeal presents the question of whether an arbitration agreement, which waives an employee’s ability to bring a collective action under the Fair Labor Standards Act, is enforceable under the Federal Arbitration Act. After careful review and with the benefit of oral argument, we affirm the district court’s order compelling arbitration. FMLA: “potential qualification” - “serious health condition” – “eligible employee” – proper “notice”, vacation leave – interference – 29 U.S.C. § 2615, retaliation, adverse employment action Jurisdiction: Eleventh Circuit Hurley v. Kent of Naples, Inc., No. 13-10298 (11th Cir., 3/20/14):
Here is a peculiar case with a couple of good nuggets for practitioners. The quotations from the opinion are reorganized here to help make the case more readily understandable:
Giving an employer notice of unqualified leave does not trigger the FMLA’s protection. Otherwise, the FMLA would apply to every leave request.
The plain text of the statute provides a cause of action against employers who “deny the exercise of or the attempt to exercise, any right provided under this subchapter.” 29 U.S.C. § 2615(a)(1) (emphasis added). Nothing in the statute speaks of “potent al rights.” Furthermore, Hurley cites no precedent supporting his “potentially qualifying” standard. In his brief, Hurley quotes 29 C.F.R. 825.208 , but the citation does not include the text Hurley quotes and speaks of leave for airline employees. The case Hurley cites discusses the unrelated issue of what type of notice an employee must provide an employer when requesting FMLA leave. Summary by the appellate court: The Plaintiff in this case, Patrick Hurley, sued the Defendants for violating the Family Medical Leave Act (“FMLA”). See 29 U.S.C. § 2615 (providing a cause of action for interfering with an employee’s FMLA rights). Hurley, who suffers from depression, contends that the Defendants wrongfully denied his request for eleven weeks of vacation time and terminated his employment. The Defendants contend: that Hurley’s request did not qualify for FMLA protection; and, that he was not terminated because he requested leave. At trial, the jury found that Hurley was not terminated because he requested leave, but nevertheless awarded him $200,000 in damages. On appeal, the Defendants contend that Hurley did not qualify for FMLA leave and that the jury returned a verdict inconsistent with the damage award . Because we conclude that Hurley’s requested leave did not qualify for FMLA protection, we need not reach the issue of whether the verdict is inconsistent with the damage award. Recording: Illinois Eavesdropping Act, recording private conversations, meetings, classes, and other activities – consent – all participants Jurisdiction: Illinois
For over 50 years surreptitious recording of private conversation had been banned by the Illinois Eavesdropping Act, which in 1994 has been amended to also extended to any communication without the consent of all participants (with some exceptions). Now there is no law prohibiting any type of eavesdropping, and the court left it to the legislature to pass a narrower one that would meet the constitutional standards discussed in the decisions. CAFA: Class Action Fairness Act, removal, standards - requirements Jurisdiction: Ninth Circuit Rea v. Michaels Stores, No. 14-55008 (9th Cir., 2/18/14):
The article summarized three important points in this case. Read it for a detailed discussion and analysis of CAFA law. Summary by the full panel of the appellate court: PER CURIAM. Plaintiffs brought the present action against Michaels Stores, Inc. on behalf of Michaels' California store managers, alleging that Michaels had improperly classified the managers as exempt from overtime. Michaels removed the case within 30 days to federal district court under the Class Action Fairness Act. The district court remanded the case back to state court, finding that CAFA's $5,000,000 amount-in controversy requirement was not met because the plaintiffs expressly disclaimed any recovery for the class over $4,999,999.99. On March 19, 2013, the Supreme Court held in Standard Fire Insurance Co. v. Knowles that attempted damages waivers, such as the plaintiffs', are ineffective, and will not defeat removal under CAFA. 133 S. Ct. 1345, 1347 (2013). The next day, Michaels removed again under the Class Action Fairness Act. And the district court remanded again, this time on the basis that the removal ran afoul of CAFA's 30-day time limit. The court held in the alternative that Michaels had failed to carry its burden to demonstrate that the amount in controversy exceeded $5,000,000. Michaels appeals. We have jurisdiction under 28 U.S.C § 1453(c). We review the remand decision de novo, Serrano v. 180 Connect, Inc., 478 F.3d 1018, 1020 (9th Cir. 2007), but review the district court's factual findings for clear error, Fed. R. Civ. Pro. 52(a)(6). "Under CAFA, we have 60 days from the time we accept the appeal to complete all action on such appeal, including rendering judgment." Lowdermilk v. United States Bank Nat'l Ass'n, 479 F.3d 994, 996 (9th Cir. 2007), abrogated on other grounds by Standard Fire Insurance Co., 133 S. Ct. 1345 (internal quotation marks omitted). CAFA: federal subject matter jurisdiction, California Labor Code Private Attorneys General Act (PAGA), representative action, dissimilar, Cal. Lab. Code §§ 2698-2699.5, 28 U.S.C. §§ 1332(d), 1453, 1711-15, certification denied Jurisdiction: Ninth circuit (California law) Baumann v. Chase Investment Services Corporation, No. 12-55644 (9th Cir., 3/6/14):
This action was based on PAGA, a “representative action” act. Because it was not sufficiently similar to CAFA, the appellate court ruled it could not be a basis for removal of the action to federal court under FRCP 23, class actions. Summary by the appellate court: This is a civil action filed in California state court under the California Labor Code Private Attorneys General Act of 2004 ("PAGA"), Cal. Lab. Code §§ 2698-2699.5, and then removed to the United States District Court for the Central District of California. PAGA authorizes aggrieved employees, acting as private attorneys general, to recover civil penalties from their employers for violations of the Labor Code. See Arias v. Super. Ct., 209 P.3d 923, 929-30 (Cal. 2009). The sole question presented on appeal is whether the district court had subject matter jurisdiction over this removed action. In Urbino v. Orkin Services, 726 F.3d 1118 (9th Cir. 2013), we held that potential PAGA penalties against an employer may not be aggregated to meet the minimum amount in controversy requirement of 28 U.S.C. § 1332(a). The remaining issue in this appeal is whether a district court may instead exercise original jurisdiction over a PAGA action under the Class Action Fairness Act of 2005 ("CAFA"), 28 U.S.C. §§ 1332(d), 1453, 1711-15. We hold that CAFA provides no basis for federal jurisdiction. Litigation: age discrimination, summary judgment, trial facts Jurisdiction: California Cheal v. El Camino Hospital, No. H036548 (Cal.Ct.App., 1/31/14):
Summary judgment motions can become muddled in a fog of a barrage of points and counterpoints, so it is critical to clearly and concisely argue the salient points of one’s case to the trial court. Summary by the appellate court: Plaintiff Carol Cheal brought this action for age discrimination against her former employer, defendant El Camino Hospital. Defendant successfully prevailed upon the trial court to grant summary judgment in its favor despite numerous materially disputed facts. As too often happens, the merits of the case were obscured to the point of invisibility in the deluge of statements, counter - statements and objections, that mark modern summary judgment practice. The record clearly raises triable issues of fact with respect to whether plaintiff was performing adequately at the time of her discharge and whether the discharge was the product of a belief to the contrary or of discriminatory animus against older workers on the part of plaintiff’s immediate supervisor. We will therefore reverse the judgment. SLAPP, EEOC: Strategic Lawsuit Against Public Participation - Code of Civil Procedure section 425.16, EEOC – impeding work Jurisdiction: California D'Arrigo Bros. of California v. United Farmworkers of America, H038213 (Cal.App.Ct.Div6, 3/12/14):
The dispute relates to EEOC allegations that some severance agreements contain illegal provisions that impede its work. The law firm article discusses this controversy in detail. Summary by the appellate court: D'Arrigo Bros. of California (D'Arrigo) filed this action for breach of contract against the United Farmworkers of America (UFW) , which was representing D'Arrigo's agricultural workers . UFW moved to strike D'Arrigo's complaint under the anti-SLAPP statute , Code of Civil Procedure section 425.16 ("section 425.16"), but the superior court denied the motion. UFW seeks review, contending that the action arose from its protected petitioning activity and that D'Arrigo cannot show a probability of prevailing in the action. We find merit in UFW's position and therefore must reverse the order. Employment Contract: malicious and willful breach
Jurisdiction: New Mexico Bhandari v. Artesia General Hospital, et al., No. 31,130, 2014-NMCA-018 (NMCA, 7/16/13); Certiorari Denied, No. 34,282 (NMSC, 1/17/14); 53.12 SBB 30; http://www.nmcompcomm.us/nmcases/NMCA/2014/14ca-018.pdf. Summary by the appellate court: {1} Plaintiff Dr. Chitra Bhandari (Bhandari) and her husband were both doctors at Artesia General Hospital (the Hospital). At a meeting to terminate her husband from the Hospital, Bhandari was told that her husband would be allowed to resign if she did so as well and, if she did not, he would be fired. She was not the subject of any personnel action by the Hospital. Prior to the meeting, the Hospital’s general counsel had prepared a memorandum concerning the termination process and scripting the matter of forcing Bhandari’s resignation. The district court ruled that the memorandum was not privileged and therefore discoverable and admitted the memorandum into evidence. The Hospital appeals the district court’s ruling regarding the memorandum. {2} Additionally, the district court, relying in part on the memorandum in question, found that the Hospital had maliciously and willfully breached its contract with Bhandari by using her husband’s situation to pressure her to resign, even though she was not the subject of any personnel action. The district court awarded her compensatory and punitive damages. As we determine that the memorandum constitutes unprivileged business advice, and the district court did not err in admitting or considering it, we affirm the district court. The district court correctly assessed the basis for its award of damages, and we also affirm the district court’s award of punitive damages. [Question: What were they thinking?] Arbitration: agreement – not unconscionable Jurisdiction: California Sanchez v. CarMax Auto Superstores of California, LLC, No. B244772 (Cal.Ct.App.Dist2.Div1, 2/6/14, 3/4/14):
Held: The case was returned to the arbitrator because the limitations on
were not substantively unconscionable. Title VII: adverse employment action, hostile work environment – harassment – racial slurs – derogatory remarks, discovery, pleading – Rule 8, retaliation Asebedo v. Kansas State University, No. 13-3206 (10th Cir., 3/17/14); http://www.ca10.uscourts.gov/opinions/13/13-3206.pdf [enhanced lexis.com version]. He failed to provide sufficient proof on the retaliation claim, but dismissal of this Title VII claim was remanded for further proceedings: From page 9 of the appellate opinion: Khalik held that the plaintiff failed to state a claim for retaliation where her factual allegations failed to establish a “nexus between the person(s) to whom she complained and the person who fired her,” and there was “nothing other than sheer speculation to link” the allegedly retaliatory actions “to a discriminatory or retaliatory motive.” at 1194. Similarly, as the district court explained, Mr. Asebedo’s complaint is devoid of any facts that would establish a causal connection between his complaints and the allegedly retaliatory actions. “Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 678-79. Accordingly, we affirm the dismissal of the retaliation claim for substantially the same reasons set forth by the district court. Download 5.55 Mb. Share with your friends:
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