Human resources & employment law cumulative case briefs
Jurisdiction: 10th Circuit
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Jurisdiction: 10th Circuit Cox v. Lockheed Martin Corporation, no. 13-1038 (10th Cir., 11/20/13); http://www.ca10.uscourts.gov/opinions/13/13-1038.pdf [enhanced lexis.com version]. His performance was deficient and he failed in the PIP. Though under the McDonnell Douglas three-step framework he met the burden of proving a prima facie case, the employer showed a legitimate, nonretaliatory reason for its decision, and he could not prove pretext. Arbitration: extent of release Jurisdiction: 4th Circuit Dewan, et al. v. Walia, No. 12-2175 (4th Cir., 11/28/13)
Mr. Maslanka recommends considering the dissent’s opinion and how such agreements might be drafted better: Further, I cannot agree with the majority's statement that the release agreement ‘could not be more expansive, clear, or unambiguous.’ … Indeed, the release agreement could have ‘release[d]’ and ‘discharge[d]’ all claims and disputes not just in the form of ‘lawsuit[s]’ or ‘action[s]’ but ‘in any and all forms and in any and all fora.’ … Or it could have made clear that Walia [the employee] ‘promised never to file a lawsuit ... or arbitration or any other form of dispute for adjudication in any forum whatsoever.’ But it did not. Wage and Hour: pool tipping Jurisdiction: Nevada Wynn Las Vegas, LLC v. Baldonado, et al., 129 Nev., Advance Opinion 78, case No. 60358 (10/31/13); http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=28522 [enhanced lexis.com version]. Ruling: Nevada law permits employers to establish mandatory tip pools:
However, the opinion did not reach the question of whether an employer has complete discretion to decide to whom tips may be distributed. ADA: performance deficiencies, essential functions, qualified individual with a disability (QIWAD), reasonable accommodations – interactive process – inadequate request, timing – before – after, summary judgment dismissal affirmed Jurisdiction: 10th circuit Dinse v. Carlisle Foodservice Products Incorporated, No. 12-6178 (10th Cir., 11/6/13); http://www.ca10.uscourts.gov/opinions/12/12-6178.pdf [enhanced lexis.com version]. Timing is important: The focus and rationale of both the trial and appellate courts was that the employee failed to prove he was a qualified individual with a disability (QIWAD) before his surgery and that there was a reasonable accommodation at that time. His condition and events after surgery were irrelevant. Knowledge of disability: Mere awareness the employee’s “. . . several maladies, including diabetes, a heart condition, spinal issues, and avascular necrosis, which is a degenerative hip condition . . ” and “severe pain” was not sufficient, nor was awareness of “. . . his regular need for sick leave to attend doctor appointments and physical therapy, that his avascular necrosis required him to walk with a cane.” Performance deficiencies: Significantly, these were a continuing problem leading up to the time before his surgery, he was advised of his employer’s concerns about being weeks behind in completing assignments, and he was notified his work needed to significantly improve. There were discussions about the “essential functions” of his job and what he needed to do to succeed. Rationale of the appellate court: Events and conditions before his surgery were the key factors in this case [edited for easier reading]: Evidence that Mr. Dinse discussed a laptop accommodation with Messrs. Davis and Benning was insufficient, reasoned the district court, because Mr. Dinse’s deposition testimony clarified that “this conversation . . . was in the context of working from home after his proposed surgery so [he] could return to work sooner—not beforehand so that he could keep up.” * * * Because Mr. Dinse failed to point to “any statements or conversations with . . . anyone . . . at Carlisle which could be construed as requesting present help for his disability,” * * * the district court reasoned that there was no evidence that he “requested an accommodation from Carlisle which would have enabled him to perform his essential job functions,” * * * Thus, concluded the district court, Mr. Dinse was not a “qualified individual” under the ADA, which entitled Carlisle to summary judgment. Thus, he was not a QIWAD before his operation, and later events were not relevant. FLSA: exemption, misclassification, paralegal, fixed salary – fluctuating hours, fluctuating work week (FWW) method, calculate unpaid overtime damages, conflicting opinions – Black v. SettlePou P.C. or Ransom v. Patel Enterprises, Incorporated Jurisdiction: 5th Circuit Black v. SettlePou P.C., No. 12-10972 (5th Cir., 11/11/13); http://www.ca5.uscourts.gov/opinions%5Cpub%5C12/12-10972-CV0.pdf [enhanced lexis.com version] What to do when a federal circuit appears to have contradicted itself ? This Ogletree Deakins article discusses the problem at http://blog.ogletreedeakins.com/how-to-calculate-unpaid-overtime-the-sequel-fifth-circuit-rejects-fww-method-in-misclassification-cases/?utm_source=rss&utm_medium=rss&utm_campaign=how-to-calculate-unpaid-overtime-the-sequel-fifth-circuit-rejects-fww-method-in-misclassification-cases. Background:
Practitioners in that jurisdiction need to study both cases and benefit from the Ogletree Deakins article to attempt to determine what to do, which may depend on unique circumstances in each situation. Summary by the appellate court in the Black case: Betty Black is a former employee of SettlePou, and after a jury found that SettlePou had misclassified Black as exempt from the Fair Labor Standards Act (FLSA), Black became eligible for an award of unpaid overtime wages. In computing the overtime payment award, the district court applied the “Fluctuating Workweek” (FWW) method of calculating overtime by multiplying the number of overtime hours Black worked by one-half of her regular rate of pay. Black contends that the FWW method of calculating overtime is not warranted here, and we agree. We therefore REVERSE the ruling of the district court, VACATE the amount of actual damages awarded to the plaintiff and REMAND for recalculation and entry of an appropriate judgment. We further VACATE the award of liquidated damages and the amount of attorney’s fees and REMAND for reconsideration. Arbitration: unconscionability, attach FAA rules Allegations: race and gender discrimination, equal pay/compensation discrimination, hostile work environment, retaliation, intentional infliction of emotional distress, and wrongful termination in violation of public policy Jurisdiction: California Peng v. First Republic Bank, No. A135503 (Cal.App,1st Dist., 2nd Div., 8/29/13); http://www.courts.ca.gov/opinions/documents/A135503A.PDF [enhanced lexis.com version]. The major point of this brief is that attaching the FAA rules to the Arbitration Agreement was ruled not mandatory. Summary by the appellate court: Plaintiff Anna Peng sued her employer, defendant First Republic Bank, for employment discrimination, intentional infliction of emotional distress, and wrongful termination. The trial court denied defendant‘s motion to compel arbitration, finding the parties‘ arbitration agreement to be fatally unconscionable. The court rejected defendant‘s argument that the unconscionable provisions, if any, were severable. We conclude the agreement is not unconscionable and now reversed. Title VII: gender, adverse employment action – Facebook firing – profanity – family custody dispute, defamation, McDonnell Douglas – legitimate business purpose – no pretext for discrimination, summary judgment dismissal affirmed Jurisdiction: 7th Circuit Smizer v. Community Mennonite Early Learning Center, No. 13-1828 (7th Cir., 10/25/13); Ogletree Deakins:
As you will see from reading the full, but short, opinion, there were complex evidentiary issues and failures of proof. Putting that aside, both the trial court and the appellate court ruled Smizer’s claims ought to be dismissed for lack of evidence upon which a reasonable jury could find that the Center’s stated reason for firing him was a pretext for discrimination. FLSA: pay – overtime compensation – collective action status, showering and changing clothes – not required Jurisdiction: 7th Circuit DeKeyser v. Thyssenkrupp, No. 12-3306 (7th Cir., 11/30/13);
Showering and changing clothes were not required by OSHA, and the appellate court rejected the request on behalf of 400+ employees for collective action status. Summary by the appellate court: Ryan DeKeyser, Thomas Cooper, Harley Granius, and Carlos Lantz sued their employer, Thyssenkrupp Waupaca, Inc. (“Waupaca”), an iron casting manufacturer, alleging that Waupaca violated the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S .C. § 201 et seq., by not paying them overtime compensation for time they spent showering and changing clothes at Waupaca’s foundries. They represent a class (an “opt-in ” class under 29 U.S.C. § 216(b) ) of more than four hundred Waupaca foundry workers. The district court granted summary judgment in favor of Waupaca, ruling that showering and changing clothes at Waupaca was not compensable under the FLSA because the Occupation al Safety and Health Administration (“OSHA”), the administrative agency within the Department of Labor responsible for promulgating and enforcing occupational safety and health standards, had not mandated that workers in foundries like Waupaca’s shower and change clothes on-site. The district court so ruled despite the fact that there was a factual dispute in this case as to whether these activities significantly reduced workers’ health risks at Waupaca. Because OS HA’s decision not to promulgate a rule requiring such activities does not bar a party from presenting evidence as to the compensability of such activities under the FLSA and factual disputes otherwise preclude summary judgment, we reverse the district court’s grant of summary judgment and remand for further proceedings. FMLA and Title VII: mixed claims
Jurisdiction: 10th Circuit Wright v. City of Topeka, No. 12-3244 (10th Cir., 11/1/13); http://www.ca10.uscourts.gov/opinions/12/12-3244.pdf [enhanced lexis.com version]. The appellate court found that employer appeared to be acting fairly and in good faith in its selection process; Corrie Wright’s dissatisfaction with coming in second was insufficient to support her discrimination claim. Summary by the appellate court: After filing a complaint with the Equal Employment Opportunity Commission, Ms. Wright filed this action, alleging retaliatory treatment for exercising her rights under the FMLA, 29 U.S.C. § 2615(a)(2), and gender discrimination under Title VII, 42 USC § 2000e-2(a)(1). The district court granted Defendant’s motion for summary judgment as to both claims. Ms. Wright timely appealed. Both the FMLA and the Title VII claim were analyzed in the three-part evidentiary test in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973) [quotation edited and reformatted for easier reading – full citations are in the decision]: Under this framework:
Summary judgment analysis by the appellate court [also edited for easier reading]: A showing that the employer’s proffered reason is false is sufficient to defeat summary judgment; plaintiff need not prove that discrimination or retaliation was the actual motivation at this stage. Plaintiffs typically accomplish this through evidence that the employer’s explanation is false, or evidence that the employer acted contrary to established policy. On both the retaliation claim and the discrimination, claim the trial court found she had failed to establish a prima facie case, and even if she had, she failed to proffer evidence of pretext by her employer – which had shown legitimate reasons for hiring the other person [also edited for easier reading]: In order to avoid summary judgment, then, Ms. Wright must raise a genuine dispute of material fact as to whether Defendant acted on these reasons. * * * The inquiry is not whether the stated reasons were fair, wise, or correct, but rather whether Defendant genuinely believed them and took action accordingly. Once again, this case demonstrates that :
FEHA, DPA: mixed but interrelated leave claims – organ donation -- leave
Jurisdiction: California Rope v. Auto-Chlor System of Washington, No. B242003 (Cal.App.Dist.2,Div.1, 10/16/13); http://www.courts.ca.gov/opinions/documents/B242003.PDF [enhanced lexis.com version] FEHA protection differs from the FMLA. Dismissal affirmed as to some claims, but others were remanded [returned] to the trial court for further proceedings. Summary by the appellate court: When he was hired in September 2010, plaintiff Scott Rope informed his employer, defendant Auto-Chlor System of Washington, Inc. (Auto-Chlor) he planned in February 2011 to donate a kidney to his physically disabled sister, and requested that he be given leave to do so. Rope later requested that the leave be extended and paid under the then-newly enacted Michelle Maykin Memorial Donation Protection Act (DPA), Labor Code sections 1508–1513, which would become effective January 1, 2011. Rope was fired two days before the DPA became effective. He sued his former employer for violation of the DPA and other provisions of the Labor Code, violation of the Fair Employment and Housing Act, Government Code section 12940 et seq. (FEHA), and wrongful termination in violation of public policy. Rope appeals from the judgment of dismissal entered after the trial court sustained general demurrers to his first and second amended complaints without leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) We conclude that Rope has pleaded facts sufficient to support a claim for association-based disability discrimination and failure to maintain a discrimination free workplace in violation of FEHA, and a common law claim for wrongful termination in violation of public policy. We also conclude that the trial court properly sustained without leave to amend demurrers to Rope‘s claims for violations of the DPA, violations of the Labor Code, and for direct or perceived disability discrimination under FEHA. Accordingly, we affirm in part and reverse in part the judgment of dismissal and remand for further proceedings. [For more on association discrimination, see:
Business torts: Arizona – former employees [two cases]
Jurisdiction: Arizona federal trial court Unisource Worldwide, Inc. v. Swope, No. No. CV-12-02036-PHX-NVW, 2013 WL 4029170 (D. Ariz. Aug. 8, 2013)
Article at http://www.jacksonlewis.com/resources.php?NewsID=4645 Jurisdiction: Arizona state court Orca Communications v. Noder, et al., 1 CA-CV 12-0183, Department B (AZ.Ct.App. Div.1, 10/17/13); http://azcourts.gov/Portals/0/OpinionFiles/Div1/2013/1CA-CV12-0183.pdf [enhanced lexis.com version].
Article at http://www.jacksonlewis.com/resources.php?NewsID=4646 Summary by the appellate court: Orca Communications Unlimited, LLC, appeals the trial court’s dismissal of its complaint against Ann J. Noder that alleged that Noder breached her contract with Orca and committed several business torts against the company. For the reasons set forth below, we affirm the court’s dismissal of Orca’s claims for breach of contract and fraud, but vacate the court’s dismissal of Orca’s claims for breach of the covenant of good faith and fair dealing, breach of fiduciary duty and duty of loyalty, tortious interference with business expectancies and unfair competition Wage and Hour, Arbitration, FLSA: attorney fee, conflict between state and federal law, recovery limited to plaintiff Jurisdiction: Florida, 11th Circuit Hernandez v Colonial Grocers, Inc., No. 2D11-3415 (FL.App,second Dist., 10/25/13 – “Not final until time expires to file rehearing motion and, if filed, determined”). In the meantime, see
Florida’s Second District Court of Appeal held that an arbitration agreement was unenforceable in a claim brought under the FLSA:
[Stay alert for the final disposition of this case, if there is one.] Title VII, NMHRA, Public Sector: race, national origin, First Amendment, whistleblower, probationary employee, McDonnell Douglas -- misconduct – legitimate, nondiscriminatory reasons – no pretext, progressive discipline, summary judgment dismissal affirmed Jurisdiction: 10th Circuit Lobato v. State of New Mexico, et al,, No. 12-2128 (10th Cir., 11/5/13); http://www.ca10.uscourts.gov/opinions/12/12-2128.pdf [enhanced lexis.com version]. Substantiated misconduct included “dishonesty, failure to cooperate with management, and unprofessional attitude toward coworkers and the public.” Sufficient documentation supported the employer’s adverse employment action. ADEA: business conversations, no adverse implication, summary judgment dismissal affirmed Jurisdiction: 10th Circuit Roberts v. International Business Machines Corporation, No. 12-5169 (10th Cir., 11/5/13); http://www.ca10.uscourts.gov/opinions/12/12-5169.pdf [enhanced lexis.com version]. This case is an example of valid business discussion and commentary on whether an employee is earning his or her paycheck. The “Resource Action” was a valid inquiry and evaluation of his productivity. When the evaluation was favorable for the employee, he was taken off of the evaluation list. McDonnell Douglas issue: Even assuming (without granting) the circumstantial evidence Mr. Roberts has amassed is enough to establish a prima facie case of discrimination, pretext proves still a problem. To establish pretext under the ADEA, an employee must show there is enough inconsistency or implausibility in his employer’s stated explanation for the firing that a reasonable trier of fact could find it unworthy of belief. When his performance became deficient, he was offered the opportunity to improve it, but he failed. His claim of disparate treatment failed for lack of evidence of similarly situated employees. Age was “not a significant motivating factor” in his Burk claim, which failed [citation in the decision – essentially state case law protection for older workers]. FMLA: eligibility, 615 hours, summary judgment dismissal Download 5.55 Mb. Share with your friends:
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