Human resources & employment law cumulative case briefs
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- Controlling Law.
Controlling law. Twigg v. Hawker Beechcraft Corp., No. 10-3118 (10th Cir., 10/13/11); 2011 U.S. App. LEXIS 20729; 18 Wage & Hour Cas. 2d (BNA) 289; http://www.ca10.uscourts.gov/opinions/10/10-3118.pdf [enhanced lexis.com version]. Facts and chronology:
Litigation: Twigg claimed under both Title VII and the FMLA, and the appellate decision used the “mixed-motive” analysis. As such, she had to “directly show that retaliatory animus played a motivating part in [HBC’s] employment decision.” If she successfully could that, then the burden would shift to HBC “to demonstrate that it would have taken the same action irrespective of the retaliatory motive.” She failed to convince the appellate court with any of her four arguments:
Rejection of those arguments by the appellate court:
CASE TWO: Illustrative, not controlling law. This district court trial Memorandum Opinion and Order in our 10th Circuit is instructive of how all of this played out in a somewhat similar but more complex factual context. Bhatia v. 7-Eleven Southland, Corp., No. 2:08-CV-987 CW (U.S.D.C. D.UT Central Div., 9/27/11); http://scholar.google.com/scholar_case?case=5504569498313569380&q=Bhatia+v.+7-Eleven+Southland,+Corp.,&hl=en&as_sdt=2,32&as_vis=1 [enhanced lexis.com version]. Here, there were performance deficiencies as well as issues of whether there was discriminatory animus, and the same kind of analysis was made as in the Trigg case. Also the McDonnell Douglas evidence test was used [which has been reiterated many times previously in this database and won’t be repeated here]. An important additional lesson from the Bhatia case is that a previous decisionmaker was involved the subsequent decision process and made an unfortunate statement about Bhatia’s inquiry about his eligibility for purchasing a franchise that might possibly have brought a different result: “You have sued 7-Eleven. We can’t negotiate with you anything. . . . We can’t give you anything. . . . We are not going to let you in.” So, read this case for its factual twists and turns and learn how the “mixed-motive” analysis was applied to the complex set of facts set forth in the opinion. Title VII: religion, accommodation request, failure to answer employee’s questions about religion in the workplace, failure to accommodate religious beliefs, hostile work environment, intentional infliction of emotional distress; summary judgment Illustrative: not controlling law. Balancing religion and the various rights and restrictions among everyone in a workplace is difficult – problems of scheduling work and time away for religious observances, who gets to wear what, who has freedom to express religious view and who might consider that such expression creates a hostile work environment, is there favoritism - and on and on. Do note from other cases in this database that the amount of accommodation is somewhat less than accommodation in other kinds of situations. Nonetheless, it can be complicated. Though this case involves a ruling by an Illinois federal district [trial] court [not an appellate court, which would have broader effect], reading it might help employers to analyze what to do and not to do, which in this case was not to ignore a legitimate request for clarification about religion in the workplace. A FedEx manager inquired about limitations on expressions about his faith, and the employer failed to respond. The trial court ruled that the former FedEx manager could proceed to trial on his claim that FedEx failed to accommodate his religious beliefs by prohibiting him from answering questions about his religion in the workplace. About a year later he was demoted, which gave rise to this litigation. Weathers v. FedEx Corporate Services, No. 09 C 5493 (U.S.D.C. N.D. IL E.D., 11/1/11) http://scholar.google.com/scholar_case?case=10512104364642063446&q=Weathers+v.+FedEx+Corporate+Services&hl=en&as_sdt=2,32&as_vis=1 [enhanced lexis.com version]. Eric Weathers described himself as conservative evangelical Christian. Over the two decades of his employment with FedEx he rose to direct sales manager in Chicago in 2007. While employed with FedEx he belonged to an organization of Christian FedEx employees, and he had been invited to speak at FedEx sales conferences about his faith. In August 2007, an employee reporting directly to him complained that Weathers discriminated against her by quoting biblical passages about slaves and masters, telling her that she was his slave. Human resources investigated and concluded that Weathers did not violate any company policy, but it did issue him a counseling letter that was intended to be a coaching tool rather than a letter of reprimand. It instructed him to stop discussing religious matters with other employees, even if they initiated the conversation. Further, he claimed that a human resources representative further told him he could not discuss religion because that was a “detrimental act.” Seeking clarification, he sent his supervisor and a human resources representative an email in October 2007 asking for clarification about how Title VII prohibits him from discussing religion. In that email he quoted a biblical passage he believed obligated him to answer questions about his religion when asked (it is quoted in detail in the opinion). Weathers claims he did not receive a response to his email. The opinion also discusses other religious activity within the company, including: The big man is watching. [/] Ck your numbers." R. 28-6 at 10. Attached to the email was a picture of three signs that one would see in front of a church. Id. at 11. One sign says, "First Baptist Church." Id. A second sign lists times of worship. Id. A third sign, one on which the letters can physically be changed to display a custom message, reads "GOD HAS SEEN [/] YOUR CBT NUMBERS [/] YOU'RE GOING TO [/] HELL!" Id. The email was forwarded by Kyker to her team. Kyker Dep. at 21. Kyker did not make the picture, but received it from another FedEx employee, John Whittington, who had sent it to Kyker and one other employee (who has no connection to this litigation). Id. Whittington sent the original email on October 26, a few days before Kyker forwarded it, and the original email stated: "Being from the South, you both wouldn't happen to be Baptist, would you?" R. 28-6 at 10. Additionally, Kyker herself raised, with Weathers, a religious topic at some point after this email, namely, when she asked Weathers to provide a definition for the term "atheist." R. 38, PSOF ¶ 13. [Alarm bells and red flags!] Less than a year later, Weathers was demoted for performance reasons and later resigned. He then sued FedEx for religious discrimination, failure to accommodate his religious beliefs, hostile work environment and intentional infliction of emotional distress. The district court granted summary judgment to FedEx on all counts except the plaintiff’s religious accommodation claim – for these reasons:
Further, the court ruled that a reasonable jury could find that FedEx’s instructions to Weathers not to discuss his religion, which was an exercise of his religious beliefs, was humiliating and degrading enough to constitute an adverse employment action. Finally, the court rejected FedEx’s argument that it could not accommodate his request because doing so would create a hostile work environment for other employers [Comment: Part of the difficult balancing action mentioned above]. FMLA, Title VII: disparate treatment, analysis for “similarly situated” Illustrative; not controlling law. The value of this 7th Circuit case is its definition and analysis of “similarly situated” individuals and situations:
In other words, a plaintiff needs to be able to show "the comparator had the same supervisor, was subject to the same employment standards and had engaged in conduct similar to that of the plaintiff." The term “comparator” is more typically used in scientific descriptions, and it is an abbreviated way of describing what the comparison is made to. In this case, the appellate court found that the woman against whom an adverse employment action had been taken was sufficiently similar to the man against whom no such action had been taken, the behavior was sufficiently similar, and the supervisor was the same person in each instance. Eaton v. Indiana Department of Corrections, No. 10-3214, 657 F.3d 551 (7th Cir., 9/9/11); 2011 U.S. App. LEXIS 18675; 113 Fair Empl. Prac. Cas. (BNA) 386; 94 Empl. Prac. Dec. (CCH) P44,263; 2011 WL 3966145; http://courtlistener.com/ca7/49kL/autumn-eaton-v-indiana-department/; http://www.ca7.uscourts.gov/tmp/D00VNA7A.pdf [enhanced lexis.com version]. Harassment: three cases of what not to do: excessive teasing, name-calling, hostile work environment – both pervasive and severe, intentional infliction of emotional distress, religion, age, etc. Illustrative; not controlling law. Not enough written human resources policies point out that harassment can extend to all sorts of discriminatory misbehavior, direct discrimination, excessive teasing, hostile work environment, constructive discharge, possible intentional infliction of emotional distress, etc., in all sorts of statutorily protected classes. A strong trend in discrimination and leave cases is that courts borrow liability theories from the various statutory acts. Though this opens up more possibilities for liability, it does make for a highly consistent atmosphere of prohibitions against discrimination in the workplace. In some cases the employer was successful, and in others, not – plus the employee might have succeeded had the attorney added some state common law legal theories. Here are the citations for those of you who want to read the cases for the details, which could provide some excellent examples for training programs:
FMLA: interference with leave, retaliation, pregnancy discrimination, tipoff about possible basis of decision; summary judgment denied to employer Illustrative; not controlling law. The extensive economic difficulties have forced difficult decisions about layoffs, and those decisions need to be based on valid business purposes. After the decision was made to terminate the employment of a number of employees, Laura Makowski, law firm Marketing Director, was among those let go. What caused the employer to lose its motion for summary judgment, and consequently have to face a jury trial, was a comment by one of the individuals who may have been involved in the layoff decision. In her trip down in the elevator with her boxes of belongings she was told by that person that she "was let go because of the fact that [Makowski] was pregnant and took medical leave" and that she was one of several at the firm who were let go because they were pregnant or took medical leave. What’s more, that person also suggested she ought to consult with an attorney because there “might be the possibility of a class action.” Makowski v. SmithAmundsen, No. 10-3330 (7th Cir., 11/9/11); 2011 U.S. App. LEXIS 22583; http://www.fmlainsights.com/Makowski%20v.%20SmithAmundsen.pdf; http://www.fmlainsights.com/retaliation/managers-loose-lips-sinks-employers-chances-of-dismissing-fmla-claim/ [enhanced lexis.com version]. [Note: The opinion and article don’t provide any information about the status of the employment of the informant.] NLRA: “single employer”, parent and subsidiary companies, joint and several liability for unfair labor practices Illustrative; not controlling law. In this “unpublished” 5th circuit opinion the appellate court ruled that an investment manager and a Hawaiian resort owned and operated by a subsidiary of the investment manager were a “single employer” under the National Labor Relations Act (NLRA). As such, they were jointly and severally liable for unfair labor practices stemming from their failure to allow union officials access to hotel workers and prohibiting the union from collecting dues at the resort. Though this is an unpublished opinion, it provides a good reminder of the important legal definitions and principals involved – such as when employers use staffing companies to provide workers, transitions when acquiring employees in corporate acquisitions, etc. Definitions:
Oaktree Capital Mgmt. LP v. NLRB, No. 10-60749, (5th Cir., unpublished opinion, 9/26/11); 2011 U.S. App. LEXIS 19686; 191 L.R.R.M. 2769; http://www.ca5.uscourts.gov/opinions%5Cunpub%5C10/10-60749.0.wpd.pdf [enhanced lexis.com version]. Facts and contentions: Oaktree, an investment partnership and an indirect owner of a property management company (“TBR”), leased the resort and contracted with another company to operate it. TBR and the resort operator conceded that they jointly employed resort workers, which meant that they would be responsible for any unfair labor practices. In an attempt to limit its liability, Oaktree strongly argued that as an “investment manager”, its only role was to advise its investors, who ultimately owned but did not run the resort. The NLRB and Fifth Circuit disagreed. Legal principal and result: For the purposes of the NLRA in determining whether this was a “single employer” situation, the appellate court stated that such a showing “depends on all the circumstances of the case and is characterized by the absence of an arm’s length relationship found among un-integrated companies” which requires examining these four factors:
The appellate court found all factors were met, particularly noting that:
arbitrator’s decisions given strong weight and “great deference”, Collective Bargaining Agreement (CBA), “just cause” for dismissal required in CBA Controlling Law. Courts give strong weight and “great deference” to the decisions of arbitrators, and that was especially true in this case in which the arbitration process and corrective or adverse employment actions are governed by the CBA. Chevron Mining v. UMW Local 1307, No. 10-8074, 648 F3d 1151 (10th Cir., 8/12/11); 2011 U.S. App. LEXIS 16622; 191 L.R.R.M. 2524; http://www.ca10.uscourts.gov/opinions/10/10-8074.pdf [enhanced lexis.com version]. John Weston, tanker driver, left his 5,000 gallon vehicle during refueling to sit in the cab and chat with his ride-share partner. They heard a loud bang and discovered the tank had overflowed. He tried to cover up the spill by washing off the fuel tank, which contaminated the fuel with water, causing the engine to malfunction. In the company investigation he did not disclose the overflow. He was suspended with the threat of termination of his employment. Upon return from his suspension, he and the other driver admitted the spill and the attempt to cover it up. Note that at this point Weston had previously been disciplined four times for violating company rules. He was fired for (1) failing to follow published company policies on refueling procedures and (2) not being fully truthful about the consequences of violating those procedures. The CBA requires the employer to establish “just cause” for firing a union employee, and it also requires union employees to comply with all “reasonable rules and regulations of the Employer”. The appellate court quoted in its opinion these further applicable obligations: Upon his hiring in June 2006, Mr. Weston received and signed a certification that he had read CMI’s Rules, Work Practices, Regulations and Instructions. Id. At 299. The certification provided that “[v]iolation of rules or work practices will subject employee to corrective action up to and including discharge.” Id. These Rules state: “Signs posted throughout the mine property are messages to warn of danger, or instruction on what to do or not to do. Read and comply with all warning signs.” Id. at 290. They also prohibit “[g]iving false or misleading information, or withholding relevant information, in any matter affecting your employment or the Interests of the Company,” “[i]nattention to your job,” and “[k]nowing violation of, or disregard for, environmental, health or safety rules, practices or legal requirements.” Id. at 295-96. The arbitrator heard the case and ruled against just cause for discharge, finding that suspension for 30 days without pay and a 180 day probationary period were sufficient punishment under the circumstances. He found the lies were “not for personal gain, but to prevent loss of his reputation, seniority and benefits:, and that his acts were “forgivable”. FLSA: Starting Computers and Reading E-Mail May Be Compensable Work Illustrative article from Wage and Hour Insights posted by Bill Pokorny on October 31, 2011: The U.S. Department of Labor announced a settlement with Hilton Reservations Worldwide, LLC, in which the company agreed to pay $715,507 in minimum wages and overtime pay to 2,645 current and former customer service employees in Texas, Florida, Illinois and Pennsylvania. The DOL determined after an audit that the company failed to pay workers for pre-shift activities such as booting up their computers, launching necessary programs, and reading work-related e-mails. http://www.wagehourinsights.com/off-the-clock/starting-computers-and-reading-e-mail-may-be-compensable-work/. FMLA: reduction in force (RIF), termination as possible retaliation, jury question of retaliation; evidence, timing, email statements Illustrative; not controlling law. Extra effort and expense result from losing a summary judgment motion. Be very careful of what is said in emails, make legally appropriate and sufficient RIF decisions and carefully document that process, and ensure that the employer has provided adequate training in training in FMLA rights, responsibilities and requirements for supervisors and employees who manage employees with medical conditions. Shaffer v. American Medical Association, 7th Cir., No. 10-2117, (7th Cir., 10/18/11); 2011 U.S. App. LEXIS 20978; http://www.employmentlawmatters.net/uploads/file/10-18-11-7thCir-layoff%20appropriate.pdf [enhanced lexis.com version]. In 2008, the AMA’s internal budgets were being cut, as was occurring with so many other businesses and agencies at that time. Initial monetary decreases were insufficient, and so staffing cuts were considered next. William Shaffer was the Director of Leadership Communications. At the time of the economic downturn Shaffer's duties had changed significantly and the AMA had stopped work on one of his core campaigns, so the agency thought perhaps another employee could be laid off in that department. At first, his supervisor opposed laying off Shaffer. However, soon thereafter his boss changed his mind. Here is the timing and rationale that caused a litigation problem for the employer:
As we now know there was an ultimate impact:
Title VII: religion, Catholic nursing–care facility, religious principles, modest attire, clothing as a matter of religious belief - 42 U.S.C. § 2000e-1(a), religious organization exemption Illustrative; not controlling law. The 4th Circuit Court of Appeals ruled that the religious organization exemption, 42 U.S.C. § 2000e-1(a), was applicable in this case and for all kinds of discrimination claims under Title VII. It rejected the district court’s decision that her religious harassment and retaliation claims could be litigated under Title VII. Kennedy v. St. Joseph's Ministries, No. 10-1792 (4th Cir.,9/14/11 ); 2011 U.S. App. LEXIS 18936; 113 Fair Empl. Prac. Cas. (BNA) 374; 94 Empl. Prac. Dec. (CCH) P44,268; http://pacer.ca4.uscourts.gov/opinion.pdf/101792.P.pdf [enhanced lexis.com version]. For practitioners in this area of law, check this excellent detailed explanatory article: http://www.littler.com/http%3A/%252Fwww.littler.com/publication-press/publication/kennedy-v-st-josephs-ministries-license-religious-employers-harass-and ADA: reasonable accommodation, assistance with commuting to work Illustrative: not controlling law. This case grabbed my attention. The district court judge ruled that "commuting falls outside the scope of the plaintiff's job, and is thereby not within the province of an employer's obligations under the ADA and Rehabilitation Act." The Second Circuit Court of Appeals disagreed on the grounds of what would be reasonable under the circumstances, such as:
The employee was hearing impaired and suffered from cancer, heart problems and asthma. She had been assigned and worked previously in the New York City Borough of Queens before the New York City Department of Health and Mental Hygiene (DOHMH) reassigned her to the Borough of Manhattan. She requested that DOHMH assist her with her commute to Manhattan during this time. In reversing the district court’s grant of summary judgment in favor of the DOHMH, the Second Circuit stated that its prior decisions establish that "there is nothing inherently unreasonable . . . in requiring an employer to furnish an otherwise qualified disabled employee with assistance related to her ability to get to work." Nixon-Tinkelman v. N.Y. City Dep't of Health & Mental Hygiene, No. 10-cv-3317 (2nd Cir. 10, 2011); 2011 U.S. App. LEXIS 16569; http://www.minnesotaemploymentlawreport.com/Nixon-Tinkelman_v._N.Y.C._Dept_of_Health__Mental_Hygiene.pdf [enhanced lexis.com version]. And an excellent detailed article: http://www.littler.com/publication-press/publication/federal-appeals-court-holds-employers-may-be-obligated-under-ada-accom Title VII: Faragher/Ellerth, prompt remedial action Two controlling law 10th circuit cases are in this brief:
Calloway Additional key words: office affair, no adverse employment action, still employed, received promotions and pay raises, knew how to report, failed to report, coworkers reported disruptive behavior, prompt remedial action, adequate investigation and follow up, reprimands and warnings, vicarious liability Calloway v. Aerojet General Corporation, No. 10-4133, 419 Fed.840 (10th Cir., 4/5/11); 2011 U.S. App. LEXIS 6914; 111 Fair Empl. Prac. Cas. (BNA) 1776; http://www.ca10.uscourts.gov/opinions/10/10-4133.pdf [enhanced lexis.com version]. An intra-office affair continued on-off-on, etc., but ended unsatisfactorily emotionally and legally for Patricia Calloway, and for the career of David Dibell, the highest-ranking Aerojet employee in Utah. Summary judgment in favor Aerojet was affirmed by the appellate court. Key to the case are the Faragher/Ellerth rulings on policies, procedures, training, reporting, corrective action and failure of an employee to use the system for reporting and/or correcting harassment. As you will recall, a key point in the Faragher/Ellerth rulings was:
This case demonstrates primarily and importantly the benefits of a company the adequately and immediately addresses a situation involving a claim of sexual harassment – plus it also demonstrates the hazards for an employee not reporting, changing her mind off and on, and not giving her employer the opportunity to take prompt remedial action. Once again, because the facts are very detailed and involved, reading the entire opinion is essential. About the only shortcoming on the part of the employer was its loose use of the designation of who is actually a manager and who is not. The legal implication of incorrectly so designating is whether there may be vicarious of the company in reporting situations, which is important if there has been no adverse employment action. Here, Calloway claimed she had mentioned the situation to a coworker whose business card indicated her as a manager, but in terms of actual duties she was not. Read this case for an excellent “textbook” description of almost everything to do right in many situations. Helms Additional key words: late reporting, swift reaction, insufficient causal connection, vicarious liability Helm v. Kansas, No. 10-3092 (10th Cir., 9/7/11); 2011 U.S. App. LEXIS 18559; 113 Fair Empl. Prac. Cas. (BNA) 225; 94 Empl. Prac. Dec. (CCH) P44,264; http://www.ca10.uscourts.gov/opinions/10/10-3092.pdf [enhanced lexis.com version]. This case is only moderately good because though management was trained in prevention of sexual harassment, lower level employees were not trained in policies and procedures as to their rights and responsibilities. An adverse employment had been taken against administrative assistant for two district court judges, but it was because of actions by the employee that resulted in a felony record. That disqualified her for employment with the district judges because an essential function of the position was assessing criminal history records. Her claim of sexual harassment was reported to the chief judge, who was not one she worked for, but was not specific enough to put the state “on notice”. Response was immediate and adequate. An important point made by this case is that an adverse employment action following harassment in and of itself is insufficient to support a harassment claim; in order to prove her case she had to “establish a strong causal nexus between the supervisor’s harassment and the tangible employment action.” Retaliation: participation in FLSA complaint process, summary judgment granted to employees Illustrative; not controlling law. Employees won summary judgment on their claims that they were fired for "participating" in a process to complain about a violation of the law. They filed claims for payments not made on bonuses and commissions to be paid based on sales. As part of the claims process they had attached to their complaint forms copies of company contracts that the company contended contained confidential customer information. The company admitted it terminated the employees for filing the claims with the attached information, and the trial court ruled that was a violation of the FLSA’s anti-retaliation provision. Randolph, et al. v. ADT Security Systems Inc., (U.S. D.C. MD, 2011); http://docs.justia.com/cases/federal/district-courts/maryland/mddce/8:2009cv01790/170341/68/0.pdf?1312884622 [enhanced lexis.com version]. Constructive discharge: reasonable person, intolerable working conditions, failure to work with company to correct problems; summary judgment in favor of employer Illustrative; not controlling law. The controversy arose from problems relating to pregnancy leave. Many details are involved, but the lesson is that courts hesitate to find constructive discharge when an employee has not allowed the employer a reasonable opportunity to work out the problem. The employee never spoke with human resources, utilized any resources provided in the handbook for problem resolution, or asked for clarification of any of the phone messages left for her about her absences. Adequate documentation also helped the employer in this case. Typically, constructive discharge claims must show that:
Trierweiler v. Wells Fargo Bank, No. 10-1343, 639 F.3d 456 (8th Cir. , 4/8/11); 2011 U.S. App. LEXIS 7150; 111 Fair Empl. Prac. Cas. (BNA) 1768; 94 Empl. Prac. Dec. (CCH) P44,151; http://www.ca8.uscourts.gov/opns/opFrame.html and enter case number 10-1343 [enhanced lexis.com version]. Title VII, NM state law and other claims: protected activity, post-termination claims, “discrete acts”, relation back of evidence, retaliation, McDonnell Douglas test Download 5.55 Mb. Share with your friends:
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