Human resources & employment law cumulative case briefs

1. 
   valid nondiscriminatory reason for termination,
   
2. 
   adequate, thorough impartial investigation,
   
3. 
   stated reasons were held in good faith at the time of the discharge, even though later they may turn out to be untrue,
   
4. 
   the “but-for” factor means age must the factor that made the difference in the adverse employment action, and
   
5. 
   the “cat’s paw” theory.
   

judgment was affirmed because the appellate court held that no reasonable jury could disagree with the facts of the case.

1. 
   U.S.C. § 203(o) of the FLSA states "any time spent changing clothes or washing" is not compensable time if it is excluded by "the express terms of or by custom or practice under" a collective bargaining agreement.
   
2. 
   Butterball’s employees were covered by a CBA that did not address payment for donning and doffing of this gear, and the workers had never been paid for it.
   

Based on this the appellate court found that there was a custom or practice in place of excluding such activities from measured working time.

. . . but

1. 
   Court of Appeals:
   

2. 
   Brief factual background:
   

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  Harassing incidents included attempted blouse peeking by her boss, her prevention efforts, and his inappropriate comments about her efforts
  
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  Hostile work environment incidents included sarcastic comments about her abilities and the amount of work she did, slamming or hitting tables or equipment in her presence, and refusing to give her receipts or promptly return her credit card when he purchased items using the university credit card issued in her name, some of which occurred in front of students.
  

Complaints to appropriate authorities were only weakly responded to by them.

3. 
   Retaliation:
   

The applicable law is:

1. 
   Statute of limitations:
   

Clarification of terminology is import at this point because the Court of Appeals uses the term “discrete” in a technical, legal sense not to be confused with discrete and indiscrete in the sense of boorish behavior. On that basis:

2. 
   Sufficiency of evidence:
   

Judgment: no exception or lower burden of proof for discrimination cases

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  There are some federal appellate opinions indicating that summary judgment in employment discrimination cases should “seldom or sparingly be granted,” or ought not to be granted in “very close” cases, or granted “only with caution” or after being “particularly deferential” to the party that had not moved for summary judgment. These types of indications usually came from panels of three judges (three judge panels are the typical groupings for hearing federal appeals cases), rather than from an “en banc” (all of the circuit appellate judges sitting on case and deciding it as a majority of the entire court, which is a stronger statement of the law at issue.
  
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  This 8^th Circuit Court of Appeals strongly rejected the plaintiffs’ argument for a special standard of proof for employment discrimination cases and the panel opinions on which they relied, saying such statements were “contrary to Supreme Court precedent,” “unauthorized,” and should not be followed. It emphasized that there is “no discrimination case exception” to the application of summary judgment. It went on to state that summary judgment remains a useful pretrial tool for determining “whether any case, including one alleging discrimination, merits a trial.”
  

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  One consideration was that if a request is onerous [such as covering an entity of 48,000 employees rather than only 170] is that the requested information "might cast light" on the charge allegations. The court noted that the EEOC failed to satisfactorily explain how the information requested in the Subpoena would "cast light" on Gailey's claim since the subpoena did not even cover the time period of her employment.
  
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  More importantly, the court concluded that the EEOC's subpoena to UPMC was "an improper fishing expedition that seeks information that is not relevant to the underlying charge. It held that the EEOC had done "almost nothing" to determine the specific facts relating to the underlying charge and that it should have done so before "launching an inquiry into a tangential alleged systemic violation."
  

If a frivolous claim causes a defendant to incur attorneys’ fees, a court may award the defendant those fees.

1. 
   the company promptly disciplined the workers for their initial misconduct and
   
2. 
   the employee did not adequately report the alleged resumption of the harassment.
   

Washington state court decision article by the law firm of Fisher and Phillips.

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  The 2007 act requires all employers to use E-Verify for all new hires and permits the revocation of a company's business license as a penalty for employing unauthorized workers. This decision resulted from a challenge to the Legal Arizona Workers Act of 2007. Remember this is a law applying to business licensing for state authorization to conduct business, and only a few states have such licensing laws [Note: We may well now expect other states to pass such laws].
  
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  The 2010 act, also known as Arizona SB 1070, adds provisions in addition to federal immigration law:
  
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    Federal: requires certain aliens to register with the U.S. government and to have registration documents in their possession at all times).
    
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    Arizona adds:
    
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      state misdemeanor crime for an alien to be in Arizona without carrying the required documents,
      
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      bars state or local officials or agencies from restricting enforcement of federal immigration laws, and
      

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  Defines a license to include any agency permit, certificate, approval, registration, charter, or similar form of authorization, foundational documents, articles of incorporation, and certificates of partnership.
  
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  Prohibits Arizona employers from knowingly or intentionally employing individuals unauthorized to work in the U.S.
  
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  Any person may submit a complaint alleging that an employer employs unauthorized workers.
  
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  Once the complaint is investigated and determined not to be false, the state will initiate legal action against the employer.
  
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  During the court proceeding, the state is limited to the federal government's determination of the employee's lawful status.
  
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  If the employer is found to have knowingly or intentionally hired a person unauthorized to work in the U.S., the Act permits the court to impose various penalties including the suspension of its license to operate a business in the state of Arizona.
  

It affirmed the decision of the 9^th Circuit Court of Appeals holding that federal law does not preempt the Legal Arizona Workers Act. The United States Supreme Court held that "Arizona's licensing law falls within the confines of the authority Congress chose to leave to the States and therefore is not expressly preempted." Further, it determined that federal law does not impliedly preempt the mandatory use of E-Verify requirement stating that although Congress had made the program voluntary at the national level, it had not expressed any intent to prevent states from mandating participation.

1. 
   federal regulatory and law enforcement agencies;
   
2. 
   members of Congress; and
   
3. 
   employee supervisors.
   

1. 
   his requested accommodation of having others perform certain of his job tasks was unreasonable;
   
2. 
   working at high altitudes was an essential function of Miller’s job; and
   
3. 
   he could not establish that IDOT’s reason for firing him was pretextual.
   

1. 
   Whether IDOT “regarded” Miller as disabled. Even though he did not report any psychological impairment, IDOT’s actions suggested that it regarded Miller as being substantially limited in the major life activity of working.
   
2. 
   It questioned whether working at high altitudes, though part of IDOT’s job description for bridge crew members, was an essential job function based on the fact that Miller performed his job for nearly four years without performing certain high altitude tasks.
   
3. 
   Why did IDOT not continue to provide the accommodation it had made for him over the years because of his fear of heights? [Note: A very good question.]
   
4. 
   IDOT’s adverse employment action after his grievances and requests for accommodation established enough circumstantial evidence for a jury to find that his termination was retaliatory.
   

FMLA: insufficient information, right to require, refusal to provide, coverage denial justified

• 
  A federal employee is entitled to up to twelve weeks of unpaid FMLA leave within a twelve-month period if a “serious health condition that makes the employee unable to perform the functions of the employee’s position.” 5 U.S.C. § 6382(a)(1)(D).
  
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  The employing agency may require:
  
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    that the employee provide a medical certification to support an FMLA request for leave. Id. § 6383(a) and
    
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    the Act provides that a medical certification “shall be sufficient if it states [among other things] the appropriate medical facts within the knowledge of the health care provider regarding the condition.” Id. § 6383(b)(3); also see 5 C.F.R. § 630.1207(b)(3) (requiring that a medical certification state “[t]he appropriate medical facts within the knowledge of the health care provider regarding the serious health condition, including a general statement as to the incapacitation, examination, or treatment that may be required by a health care provider”).
    

Janet Lewis worked for the United State Air Force (USAF) as a director of a child development center at Elmendorf Air Force Base. In 2003 there was an opening for a new childhood development center, she applied for that position but another candidate was selected rather than her, and she filed an EEOC racial discrimination claim. In 2006, she applied for FMLA leave. USAF requested medical certification supporting her request, and she provided only basic information that she had been diagnosed with Post Traumatic Stress Disorder, which necessitated rest, psychotherapy, prescription medications, and 120 days off work. USAF responded that such basic information was insufficient for her employer to understand why she was unable to perform her duties and to determine whether additional treatment would be necessary for her condition, considerations related to her return to work. She refused to submit further documentation, and her employment was terminated. Her claim for discriminatory retaliation was denied by the Administrative Law Judge, and the trial and appellate courts affirmed that ruling on the grounds that the USAF’s denial of coverage was justified under the FMLA regulations. Numerous other details and legal citations are included in the full opinion. Lewis v. U.S.A. and Michael B. Donley, Sect. of the Air Force, No. 10-35624 (9^th Cir., 5/26/11); 2011 U.S. App. LEXIS 10576; http://www.ca9.uscourts.gov/datastore/opinions/2011/05/26/10-35624.pdf [enhanced lexis.com version].

• 
  “Preemption” is a legal doctrine preventing state and local governments from adopting laws that conflict with federal laws. “Complete preemption” covers a “narrow category of state-law claims . . . [that] fall within the scope of federal statutes intended by Congress completely to displace all state law on the given issue and comprehensively to regulate the area.” ERISA is one of those statutes.
  
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  However, for ERISA to preempt a state-law claim the person filing the claim must be capable of making the claim under the ERISA, i.e., he had to be either a “beneficiary” of or a “participant” in an ERISA-regulated plan. Hansen clearly was not a beneficiary because he never actually had been covered by the insurance plan, so the court of appeals next examined whether he qualified as a “participant.” In order to be a participant, a person must be:
  

1. 
   an employee currently in covered employment,
   
2. 
   an employee reasonably expected to be in covered employment,
   
3. 
   a former employee with a reasonable expectation of returning to covered employment, or
   
4. 
   a former employee with a “colorable claim” (i.e., possibly valid) to “vested benefits.”
   

1. 
   the employee has the initial burden to come forward with a prima facie case proving discrimination (i.e., essentially a basically sufficient amount of proof), then
   
2. 
   the employer must show a legitimate business reason for its actions (i.e., the burden of coming forward with evidence that it did not discriminate); and finally, if that requirement is deemed to have been met,
   
3. 
   the ultimate burden is on the employee to prove that the employer's reason is a pretext for discriminatory motive (i.e., ultimately, the plaintiff bears the burden of proof – not merely showing – of a right to recover).
   

1. 
   he engaged in protected opposition to discrimination,
   
2. 
   a reasonable employee would have found the behavior complained of significantly adverse or legally offensive, and
   
3. 
   a causal connection existed between the protected activity and the adverse employment action.
   

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