Human resources & employment law cumulative case briefs
Jurisdiction: 6th Circuit
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- Jurisdiction: Rhode Island
- Jurisdiction: 10 th Circuit
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- Jurisdiction: 11 th Circuit trial court
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Jurisdiction: 6th Circuit Latowski v. Northwoods Nursing Center, No.12-2408 (6th Cir., 12/23/13, not recommended for full-text publication); http://www.employmentlawmatters.net/uploads/file/12-23-13%206thCir%20light%20duty%20issue%20for%20pregnant%20CNA.pdf [enhanced lexis.com version]. Summary by the appellate court: This case stems from the termination of Jennifer Latowski, a certified nursing assistant (“CNA”), after her physician imposed a lifting restriction during her pregnancy. Latowski alleged violations of Title VII of the Civil Rights Act of 1991 (“Title VII”), as amended by the Pregnancy Discrimination Act (“PDA”), 42 U.S.C. § 2000e, the Americans with Disabilities Act (“ADA” ), 42 U.S.C. §§ 12101 et seq., the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2615, and related state claims. She argued that her employer, Northwoods Nursing Center (“North Woods”), discriminated against her by requiring her to obtain a doctor’s note stating she had no work restrictions when it learned she was pregnant and terminating her when her doctor imposed a restriction. The district court granted summary judgment in favor of North Woods. We find sufficient evidence that North Woods discriminated against Latowski on the basis of her pregnancy, and therefore we REVERSE the district court’s grant of summary judgment as to Latowski’s pregnancy discrimination claims. We find no evidence that North Woods discriminated on another basis or otherwise interfered with her statutory rights, and therefore we AFFIRM the district court’s grant of summary judgment as to Latowski’s disability discrimination and FMLA interference claims. Wage and Hour: Sunday premium pay, back pay, penalty, Department of Labor and Training (DOLT/DLT) regulations Jurisdiction: Rhode Island Clarification of the state’s Sunday premium pay laws and regulations. Resources:
SUPPLEMENTAL DECISION CARNES , J. Park Row Properties, Ltd./ Metropark (Appellant or Park Row) challenges a decision by the Rhode Island Department of Labor and Training ( DLT or Department), after remand, finding Park Row liable for back wages to George Klanian ( Mr. Klanian or Claimant ) and Carlo Acquisto (Mr. Acquisto or Claimant) (collectively Claimants). Jurisdiction is pursuant to G.L. 1956 § § 25 - 3 - 5 and 42 - 35 - 15.
The taxpayer was held to be liable for taxes on her settlement involving emotional distress. Litigators need to be very careful when drafting settlement agreements, and reading this case and the articles is important. Litigation: 42 U.S.C. § 1983, 42 U.S.C. §1981, and 42 U.S.C. § 2000d, bodily injury – torts – not contracts, disparate treatment, no similarly situated comparator Jurisdiction: 10th Circuit Buhendwa v. Regional Transportation District, No. 13-1220 (10th Cir., 1/7/14); http://www.ca10.uscourts.gov/opinions/13/13-1220.pdf [enhanced lexis.com version]. This case appears to involve a pedestrian or passenger rather than an employee who claimed three injuries over the years in bus accidents. Madina Buhendwa claimed the Transportation District had paid for medical treatment for white victims and refused to pay for her treatment because she is black. It is only included here on the chance that the laws and rulings involved might be of some value in an employment case. Summary of the pertinent parts of the opinion [edited for ease of reading]:
Litigation: EEOC – statutory conciliation requirement – unsuccessful effort, no affirmative defense Jurisdiction: 7th Circuit EEOC v. Mach Mining, LLC, No. 13-2456 (7th Cir., 12/20/13) [enhanced lexis.com version]:
Differing with the 2nd, 4th, 5th, 6th and 10th Circuits, the 7th Circuit ruled that statutory language directing the EEOC to negotiate before suing does not necessarily provide an affirmative defense for employers who have allegedly violated Title VII: Applicable law: The EEOC’s enforcement procedures under Title VII are spelled out in section 706 of the Civil Rights Act of 1964 as amended. 42 U.S.C. § 2000e-5. The process begins when the agency receives a charge of discrimination from an aggrieved employee or a Commission member. It then must notify the employer and investigate whether reasonable cause exists to support the allegations. Procedural history: The EEOC received a charge of discrimination in early 2008 from a woman who claimed Mach Mining had denied a number of her applications for coal mining jobs because of her gender. After investigating the charge, the agency determined there was reasonable cause to believe Mach Mining had discriminated against a class of female job applicants at its mine near Johnston City, Illinois. In late 2010, the EEOC notified the company of its intention to begin informal conciliation. The parties discussed possible resolution but did not reach an agreement. In September 2011, the EEOC told Mach Mining that it had determined the conciliation process had been unsuccessful and that further efforts would be futile. The EEOC filed its complaint in the district court two weeks later . There is no challenge here to the facial sufficiency of these documents. See EEOC v. Shell Oil Co., 466 U.S. 54, 81 (1984). Mach Mining’s answer denied unlawful discrimination and asserted several affirmative defenses. The only defense relevant to this appeal is the allegation that the suit should be dismissed because the EEOC failed to conciliate in good faith. Appellate decision: The court found that conciliation was not mandatory, only that the EEOC needed to exert its best efforts to resolve controversies before commencing litigation, and that it had in this instance: We therefore disagree with our colleagues in other circuits and hold that the statutory directive to the EEOC to negotiate first and sue later does not implicitly create a defense for employers who have allegedly violated Title VII. Resources for resolving an EEOC charge:
Gender: same-sex marriage, constitutional law – equal protection – due process, trial court ruling Jurisdiction: Utah, 9th Circuit Kitchen v. Herbert, No. 2:13-cv-217 (D.UT, 12/20/13) [enhanced lexis.com version]:
The trial court held that: Applying the law as it is required to do, the court holds that Utah's prohibition on same-sex marriage conflicts with the United States Constitution's guarantees of equal protection and due process under the law. The State's current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason. Accordingly, the court finds that these laws are unconstitutional. [Anticipate an appeal to the 9th Circuit Court, so probably this is not a final ruling. Here is a brief review of some law and procedure in these instances:
Damages: adverse employment action – wrongful termination – violation of public policy, intentional infliction of emotional distress, discrimination – national origin, mitigation, jury instruction – whether “new position was substantially inferior to plaintiff's former position?” Jurisdiction: California Villacorta v. CEMEX Cement, Inc., No. E054329 (Cal.App.4th.Div2, 12/11/13); http://scholar.google.com/scholar_case?case=15936950929901969455&hl=en&as_sdt=6&as_vis=1&oi=scholarr [enhanced lexis.com version]. This is unusual case is noted for an unusual award of damages for wrongful termination of employment: Alfredo Villacorta (Villacorta) sued Cemex Cement, Inc. (Cemex) for (1) wrongful termination in violation of public policy, (2) intentional infliction of emotional distress, and (3) national origin discrimination. During closing argument, Villacorta's trial attorney asserted Villacorta suffered $44,000 in lost wages as a result of the wrongful termination. The jury awarded Villacorta $198,000 for lost wages, but nothing for the other two causes of action. Cemex moved for a new trial and/or judgment notwithstanding the verdict (JNOV) due, in part, to substantial evidence not supporting the damages award. The trial court denied Cemex's motions. Cemex contends the trial court erred by denying the JNOV motion because substantial evidence does not support a lost wage award of $198,000. Cemex also contends the trial court erred by not reducing the damage award because the award was excessive. We affirm the judgment. Read the Shaw Valenza law firm article at http://shawvalenza.blogspot.com/2013/12/court-of-appeal-wages-earned-at.html for a discussion of Wages Earned at "Inferior" Job Do Not Count as "Mitigation" of Damages. Arbitration: collective bargaining agreement (CBA), litigation – waiver, sole remedy – clear and unmistakable statement Jurisdiction: California Volpei v. County of Ventura, No. B243954 (Cal.App. 2nd.6th, 11/7/13); http://www.courts.ca.gov/opinions/documents/B243954.PDF [enhanced lexis.com version]. The arbitration provision of the CBA did not clearly and unmistakably state that arbitration was the sole remedy for federal and state statutory claims, the California FEHA in this case: An employee is a member of a union whose collective bargaining agreement provides that the union may submit a grievance to arbitration. Here we conclude that this provision does not preclude the employee with a statutory grievance against his employer from filing a judicial action. The County of Ventura (County) appeals from an order denying its petition to compel arbitration of Mark D. Volpei's claims for retaliation, harassment and discrimination under the California Fair Employment and Housing Act (FEHA). (Gov. Code, § 12940 et seq.) We conclude that Volpei is not bound to arbitrate his claims under the terms of a memorandum of agreement (MOA) between the County and his bargaining representative, the Ventura County Deputy Sheriffs' Association (Association), because the MOA does not provide for a clear and unmistakable waiver of Volpei's right to a judicial forum for his statutory discrimination claims. We affirm. Public Sector, Title VII: sexual harassment, adverse employment action – rehire, retaliation
Jurisdiction: 10th Circuit, Utah Eisenhour v. Weber County, et al., No. 12-4190 (10th Cir., 12/31/13); http://www.ca10.uscourts.gov/opinions/12/12-4190.pdf [enhanced lexis.com version]. Summary by the appellate court: Marcia Eisenhour sued Weber County, three of its county commissioners, and a state judge. According to Ms. Eisenhour, the judge (Craig Storey) sexually harassed her and the County retaliated against her for reporting the harassment. She claimed violations of Utah’s Whistleblower Act, the First Amendment, the Fourteenth Amendment’s Due Process and Equal Protection Clauses, and Title VII. The district court granted summary judgment to the defendants on all claims. Ms. Eisenhour challenges this ruling and the district court’s exclusion of her testimony on disciplinary proceedings involving the judge. We affirm: (1) the exclusion of Ms. Eisenhour’s testimony during the disciplinary proceedings involving Judge Storey, and (2) the award of summary judgment on the claims against the County for violation of the Fourteenth Amendment’s Equal Protection and Due Process Clauses, liability under Title VII, and violation of the Whistleblower Act relating to the refusal to rehire her. But, we conclude that genuine issues of material fact existed on: (1) the claim against the County under the Whistleblower Act and the First Amendment claim based on closing of the Justice Court, and (2) the claims against Judge Storey based on the Fourteenth Amendment’s Equal Protection Clause. Accordingly, on these claims, we reverse the award of summary judgment. Union: union activities, leadership issues, performance issues – disparate discipline, First Amendment – qualified immunity, 42 U.S.C. § 1983 – acting under color of state law, adverse employment action – termination – consistently positive performance reviews, summary judgment reversed Jurisdiction: 10th Circuit Cillo, et al., v. City of Greenwood Village, et al., No. 12-1395 (10th Cir., 12/31/13); http://www.ca10.uscourts.gov/opinions/12/12-1395.pdf [enhanced lexis.com version]. Complex questions of law and fact abound in this case, so briefing it would be anything but brief. The appellate court examined the case in thirty-two pages of discussion before remanding it back to the trial court for further proceedings consistent with the opinion’s detailed analysis and discussion. As such, practitioners in this area of the law should read the entire opinion. Summary by the appellate court: The City of Greenwood Village, Colorado, (“the City”) fired Police Sergeant Patrick Cillo after an incident involving officers under his command. Sgt. Cillo alleges the City’s real motive for firing him was opposition to the union chapter he led. Sgt. Cillo and his union sued the City and three individual defendants—Police Chief Donnie Perry, Lieutenant Joseph Harvey, and City Manager James Sanderson (collectively “Defendants”). The district court granted summary judgment for Defendants on all claims. Exercising jurisdiction under 28 U. S.C. § 1291, we reverse and remand for further proceedings. Public Sector: drug test, Fourth Amendment – search and seizure – reasonable grounds – personal animosity – vendetta Jurisdiction: 11th Circuit trial court Hudson v. City of Rivera Beach, No. 12-80870 (U.S.D.C.S.D.FL, http://www.jacksonlewis.com/media/pnc/6/media.2536.pdf [enhanced lexis.com version]. This case is a reminder that:
Extensive Jackson Lewis law firm article thoroughly discussing the case and considerations at http://www.jacksonlewis.com/resources.php?NewsID=4700. Gender: same-sex marriage, civil unions, discrimination, benefits, employment status, government services
Jurisdiction: New Mexico Griego v. Oliver, No. SC34,306, 2013-NMSC-___ (NMSC12/19/13); Select from slip opinion list at http://www.nmcompcomm.us/nmcases/NMSCSlip.aspx [enhanced lexis.com version] Same-sex marriage is constitutional in New Mexico. This is a complex opinion of thirty-one pages of analysis, discussion and rulings. The number of parties is extensive, as are the number of amicus (“friend of the court” advisory) briefs. As such, it needs to be studied in its entirety. Human resources and employment law practitioners will see that numerous areas of the workplace will be affected by it, and the list of tags above likely is incomplete. Here is an excerpt from an early part of the opinion: . . . [W]hen litigants allege that the government has unconstitutionally interfered with a right protected by the Bill of Rights, or has unconstitutionally discriminated against them, courts must decide the merits of the allegation. If proven, courts must safeguard constitutional rights and order an end to the discriminatory treatment. In a few words, here is the substance of the ruling: Denying same-gender couples the right to marry and thus depriving them and their families of the rights, protections and responsibilities of civil marriage violates the equality demanded by the equal protection clause of the New Mexico Constitution. Benefits: public sector, Educational Retirement Act (ERA), pensions, cost of living (COLA), reductions, constitution Jurisdiction: New Mexico Barlett, et al., v. Cameron, et al, No. 34,210, 2013-NMSC-___ (12/19/13); Select from slip opinion list at http://www.nmcompcomm.us/nmcases/nmsc/slips/SC34,210.pdf [enhanced lexis.com version]. Summary by the court: {1} Petitioners are retired teachers, professors and other public education employees (collectively, Retirees) who seek a writ of mandamus against the New Mexico Education Retirement Board (ERB), which administers their retirement plan under the Educational Retirement Act (ERA). See NMSA 1978, § 22-11-6 (2011) (describing the powers and duties of the ERB); see also NMSA 1978, §§ 22-11-11 to -15 (2011) (describing the educational retirement fund). Retirees seek to compel the ERB to pay them an annual cost-of-living adjustment (COLA) to their retirement benefits, calculated according to the statutes “ in effect at the time of Petitioners’ date of maturity of their rights,” instead of the current statutes as recently modified by our Legislature. {2} In requesting this writ, Retirees challenge the constitutionality of a recent legislative amendment that reduces the future amounts all educational retirees might receive as a COLA. See NMSA 1978, § 22-11-31 (2013). Essentially, the narrow question before this Court is whether the New Mexico Constitution grants Retirees a right to an annual cost-of-living adjustment to their retirement benefit, based on the COLA formula in effect on the date of their retirement, for the entirety of their retirement. For the reasons discussed below, we conclude that the New Mexico Constitution affords Retirees no such right, and accordingly we deny the writ of mandamus. ADA: litigation, jurisdiction – number of employees - AmeriCorps volunteers - living allowance – not a wage, discrimination, retaliation – dismiss without prejudice, misconduct Jurisdiction: 10th Circuit Self v. I Have A Dream Foundation-Colorado, No. 13-1090 (10th Cir., 12/20/13); http://www.ca10.uscourts.gov/opinions/13/13-1090.pdf [enhanced lexis.com version]. Summary by the appellate court: Pro se plaintiff Donita L. Self sued her former employer under the Americans with Disabilities Act, alleging discrimination and retaliation. The district court granted the employer’s dispositive motion, and Ms. Self appealed. We affirm on the discrimination claim. On the retaliation claim, we vacate the award of summary judgment and remand for the district court to order dismissal without prejudice. Background: Ms. Self worked for the Colorado I Have A Dream Foundation from 2000 until 2008, when she was fired. After the fi ring, she filed a charge with the Equal Employment Opportunity Commission, which issued her a right-to-sue letter. Ms. Self then began the present action. The Foundation filed a motion to dismiss or, in the alternative, a motion for summary judgment. In these motions, the Foundation argued that: (1) It did not qualify as an “employer” under the Americans with Disabilities Act because it had fewer than fifteen employees, (2) Ms. Self did not exhaust her retaliation claim because she had omitted retaliation in her EEOC charge, and (3) Ms. Self did not sufficiently allege discrimination based on a disability. The district court granted the motions, concluding that: (1) the ADA did not apply because the Foundation had fewer than fifteen employees, and (2) the retaliation claim was not administratively exhausted. Both conclusions are challenged in this appeal. In addition, Ms. Self argues that opposing counsel committed misconduct Title VII, ADEA: adverse employment action, difficult coworker, performance improvement plan (PIP), deficient performance, evidence – McDonnell Douglas framework – no prima facie discrimination shown – legitimate nondiscriminatory reasons, summary judgment dismissal affirmed Download 5.55 Mb. 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