Human resources & employment law cumulative case briefs
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Controlling law. Employees, supervisors and managers need to potentially derogatory talk. Though the employer prevailed in this case, it cost them time, time effort and money to avoid liability. The plaintiff was part Native American and so was the CEO. However, she was light-skinned and occasionally taken as non-Indian; he was darker and often commented on color differences. This case probably will be of more interest to defense attorneys, but human resources workers should also read this case from the perspective of preventing situations such as this from becoming discrimination claims in the first place. Nettle v. Central Oklahoma American Indian Hospital, No. 08-6023 (10th Cir., 7/1/09); 2009 U.S. App. LEXIS 14470,*;106 Fair Empl. Prac. Cas. (BNA) 1281; MoreLaw: http://www.morelaw.com/verdicts/case.asp?n=08-6023&s=OK&d=40594 [enhanced lexis.com version]. In addition to the comments by the CEO, staff and patients also commented on her skin color, among other things. "Hostile work environment": Was defined in this case as: - subjected to discriminatory intimidation, ridicule, and insults sufficiently severe or pervasive enough to - alter the conditions of employment and create an abusive working environment that no reasonable employee would tolerate. Further, our appellate court stated that it requires a "steady barrage" of offensive comments rather than just sporadic insults. And this kind of treatment can be discriminatory even among employees of the same general race or ethnicity. The appellate court ruled against the plaintiff because her complaints were vague as to by whom and when this occurred, and it also found the comments were neither severe nor persuasive. Retaliation: She had problems and deficiencies at work that would have been a sufficient basis for an adverse employment action in any event. ERISA: equitable remedy, retroactive reinstatement of health coverage Controlling law. The equitable remedy of retroactive reinstatement of benefits has been added to the possible recovery of an employee who has lost out on benefits. ERISA had been interpreted to allow only monetary recovery for retrospective remedies, i.e., nor going back and fixing the situation, but rather allowing only monetary compensation. Prospective remedies allowed such things as reinstatement. [Note: This ruling is in line with the historical evolution of equitable remedies in the legal system generally, so it is not surprising. Phelan v. Wyoming Associated Builders, No. 08-8055 (10th Cir., 7/31/09); 2009 U.S.APP. LEXIS 17197 [enhanced lexis.com version]. FMLA: hysterectomy, six weeks leave, ignorant supervisor Controlling law. This highly valued employee was discriminated against for requesting FMLA leave. Her supervisor was ignorant of FMLA law. When the employee requested six weeks of leave to recover from her operation, the supervisor said his sister recovers after a few days. When firing her he said, "You are very talented and I know, when you are back in the pink of health, [you] will bounce back and secure another job without even a glitch." Also, he told a prospective employer she left because of illness. As for areas of improvement, he that she needed to take better care of herself. This was clear evidence to the appellate court that a reasonable jury could find discrimination, and probably because the employee would be missing too much work, which is exactly what the FMLA prohibits. DeFreitas v. Horizon Investment Management Corp., No. 08-4034 (10th Cir., 8/14/09) ; 2009 U.S. App. LEXIS 18184 [enhanced lexis.com version]. LRMA: Labor Relations Management Act, hybrid combination with other claims, Memorandum of Agreement (MOA), Collective Bargaining Agreement (CBA), Substance Abuse Policy (SAP) Illustrative; not controlling law. In order to proceed a hybrid LRMA claim, an employee must establish both claims by sufficient proof of both a violation of the LRMA, and in this case, also a breach of contract of the CBA. At issue was the employee's failing the alcohol test in violation of the employer's SAP and having his employment terminated. The union did not object to termination under the SAP when testing positive confirmed violation of the SAP and by the union then entering onto an MOA it in effect amended the CBA. That resolved the issue of breach of contract of the CBA, the employee had no other breach of contract claim, and thus he had no basis for proceeding further under the LRMA with his other claims. Summary judgment by the trial court was affirmed by the appellate court. Nemsky v. ConocoPhillips Co., No. 08-4028 & No. 08-4130 (7th Cir., 8/3/09); 2009 U.S. App. LEXIS 17227;186 L.R.R.M. 3157 [enhanced lexis.com version]. NLRA: individual action as opposed to concerted job action, 10-day notice required The NLRA required ten days notice by employees before beginning a job action, i.e., engaging in a concerted action intended to force the hospital to rescind a new policy. If employees individually refused overtime assignments, then the NLRA would not have been violated. However, the union took the action on behalf of the employees without giving the required ten-day notice. SEIU v NLRB, No. 07-73028 (9th Cir., 7/27/09); Internet: http://op.bna.com/dlrcases.nsf/id/smgk-7umlmf/$File/seiuuhww.pdf [enhanced lexis.com version]. Title VII: failure to promote, legitimate mistake, faulty performance ratings; but retaliation claim goes to jury Illustrative; not controlling law. This case involved two factors: (1) a charge of intentional discrimination and (2) alleged retaliation for filing a claim. On the first factor, the employer did not become aware that the information upon which the promotions were granted was defectiv until the case was in the discovery portion of examining and exchanging information and documents, etc. The courts agreed that the failure to promote was a mistake and not a pretext for discrimination, and affirmed the dismissal of that claim. However, the timing of discharging the claimant-plaintiff, the secon factor, was suspicious enough to allow it to be determined by a jury. Upshaw v. Ford Motor Co., No. 08-3246 (6th Cir., 8/14/09); 2009 U.S. App. LEXIS 18137; 2009 FED App. 0284P (6th Cir.); Internet: http://www.mmmglawblog.com/tp-080318191354/post-090814125123.shtml [enhanced lexis.com version]. Title VII: hostile work environment, race, noose Illustrative; not controlling law. Unlike EEOC v. Central Wholesalers, Inc., briefed a few weeks ago, this case involving a noose displayed in the workplace was decided in favor of the employer because of its prompt remedial action. The incident involved a noose displayed in the workplace area of an African-American employee. Chronology: - As soon as the employee's supervisor discovered a noose hanging in the work area, she had it taken down and inquired as to who put it there. - She began investigating, spoke with other shift leaders, attended a meeting with her shift where a human resource representative emphasized that workplace harassment was intolerable, and asked the employee every night whether he know who had hung the noose. - The human resources representative conducted the employee meeting, met with the black employee twice and offered a transfer the employee to another shift. - On the other hand, the employee would not identify his harassers to his employer and did not report any incidents beyond the initial display of the noose. - Rather, he reported the harassers' identities and behavior to the local police department, which the court found did not excuse failing to provide the necessary information so that his employer could deal with the harassing event and appropriately respond. One minor negative note was that for several hours the supervisor hung the noose on her office bulletin board visible through a glass window [Note: Perhaps as a reminder of bad behavior?] Anyway, though perhaps not a wise decision, the employee did not claim that was discrimination. Porter v. Erie Foods Int'l., Inc., No. 08-1996 (7th Cir., 8/7/09); 2009 U.S. App. LEXIS 17843 [enhanced lexis.com version]. FMLA: discharge for cause, performance problems, termination while on leave, no need to reinstate and then fire Illustrative; not controlling law. Because of extensive destructive misbehavior in the workplace, that was the motivating factor for termination rather than taking FMLA, and thus there was no FMLA discrimination - the employee could be fired even though he was on FMLA leave and did not need to be rehired and then terminated. The VP for information technology was completely wrong, and the appellate court let him know that. Daugherty v. Wabash Center, No. 08-3104 (7th Cir., 8/14/09); 2009 U.S. App. LEXIS 18234 [enhanced lexis.com version]. Benefits: vesting, nature and extent, changes Illustrative; not controlling law. Lifetime benefits were ruled to be vested. However, the nature and extent, or scope, of them may be changed depending on circumstances. The appellate court allowed PPO health plan to be terminated and a managed care plan substituted. Because the contract and other documents related to it did not cover this situation, the appellate court decided that the parties to the benefits contract contemplated "reasonable modifications", and it sent the case back to the trial court to determine what types of changes might be permissible. Reese v. CNH America, Nos. 08-1234/1302/1912 (6th Cir., 7/27/09); 2009 U.S. App. LEXIS 16397; 2009 FED App. 0266P (6th Cir.) [enhanced lexis.com version]. Title VII: religion, hostile work environment, discrimination rather than constructive discharge Illustrative; not controlling law. How far can expressions of religious beliefs go in the workplace before they create a hostile work environment? The appellate court characterized this situation as a Title VII hostile work environment case (as opposed to the trial court treating it as a constructive discharge case). The employee's brother had committed suicide four years earlier: - The owner's wife and company receptionist told the employee that: - she could talk with the dead, - daily told him she had been communicating with his brother who was suffering in Hell, and - that torment would continue if the employee did not get right with God. - Frequent requests by the employee to her to stop were ignored, - she increased her insistence, - he grew increasingly uncomfortable at work, and - requests to the owner were rejected; he merely confirmed she could talk to the dead. The appellate court sent the case back to the trial court to use the correct law when trying the case to a jury. Winspear v. Community Dev., Inc., No. 08-2041 (8th Cir., 729/09); 2009 U.S. App. LEXIS 16718; Internet: http://www.ca8.uscourts.gov/opndir/09/07/082041P.pdf [enhanced lexis.com version]. FLSA: individual personal liability of managers
Handbook: enforceable contractual right(s) Controlling law, but mostly limited to the specific facts and law of this case. However, the opinion illustrates how promissory language in employment handbooks may create enforceable contractual rights, no matter if the employer is in the private of public sector. There is not much new here in terms of private employers, but New Mexico public employers are encouraged to read and understand this case, discuss it thoroughly with their human resources and legal counsel, and then promptly examine their handbooks, ordinances, policies and practices and related items to determine if any action is needed. Beggs v. City of Portales, 2009-NMSC-023; Internet: http://www.conwaygreene.com/nmsu/lpext.dll/nmcases/1/27aea/699?fn=document-frame.htm&f=templates&2.0 [enhanced lexis.com version]. FMLA, ADEA, ADA, ADAAA, Retaliation: proper documentation of misconduct and performance deficiencies, non-discriminatory termination, granting legitimate requests for leave Controlling law. This is another case with extensive details that ought to be read in its entirety. [Note: Sometimes briefing an intricate case creates a risk of possibly omitting an important point.] Essentially, this worker's problem was a sleep disorder resulting in falling asleep at work and also performing poorly. Though the employer prevailed under the ADA as written prior to the ADEAAA, it prevailed on many important issues because it properly documented her misconduct, poor performance, efforts of her employer to warn, counsel and assist he to help herself succeed, including granting legitimate request made by her for FMLA leave. Because the ADAAA expanded definitions and coverage of physical or mental impairments, the result now might be different, so check with your employment law attorney in this type of situation. Nealy v. Water District No. 1 of Johnson County, Kansas, No. (10th Cir., 5/12/09); 2009 U.S. App. LEXIS 10246: Internet: http://www.morelaw.com/verdicts/case.asp?n=08-3144&s=KS&d=40057 [enhanced lexis.com version]. Title VII: remedial action defense, summary judgment Illustrative; not controlling law. Summary judgment is a procedural method by which a claim might be dismissed to avoid trial. However, the evidence must be so clearly in favor of the moving party that no reasonable jury could decide against that party, and the facts must be construed most favorably in favor of the party against whom the motion is made. In this case, there were issues of fact that a jury should hear, evaluate and decide on, and it might reasonably conclude that the employer failed to respond in a timely and effective manner that would end the behavior that the African-American female plaintiff claimed was discriminatory: - September through November 2004 harassing conduct that included calling her "bitch" and nigger", - co-worker with pornographic images on his computer screen and pornographic materials in his cubicle, -co-workers ignored her requests and conduct worsened, manager at first did nothing, - in later response to another's complaint about the computer screen, the manager removed the image and blocked Internet access, but the problem recurred when access was restored. She was offered the opportunity to move to another department, but she objected that she was not the offender. Further: - when the company president walked through the area the offending material was gone, but returned after he left. -subsequently, another manager walked through the area and found pornographic material, and he directed the offender to remove it and not to use profanity. The president called a meting to review company policy and practices on profanity. Subsequently, another co-worker subjected her to a barrage of sexual and racial insults, and blue mop-headed dolls appeared hanging around the office. She left work and filed EEOC charges. EEOC v. Central Wholesalers, Inc., Nos. 08-1181 and 08-2018 (4th Cir., 7/21/09); 2009 U.S. App. LEXIS 15987; Internet: http://pacer.ca4.uscourts.gov/opinion.pdf/081181.P.pdf [enhanced lexis.com version]. FLSA: H-2B expenses Illustrative; not controlling law. Relocation expenses of H-2B workers are not required to be reimbursed under the Fair Labor Standards Act. Castellanos-Contreras v. Decatur Hotels, Inc., No. 60-4340 (5th Cir., 7/21/09); 2009 U.S. App. LEXIS 4796; 559 F.3d 332; 14 Wage & Hour Cas. 2d (BNA) 897 [enhanced lexis.com version]. Tape recording: open cubicle, objective expectation of privacy, Federal Wiretap Act Illustrative reasoning, but not binding authority. [Note: Trial court rulings bind only the parties to the litigation, and no one else; only appellate decisions may bind others.] This interesting New Mexico federal district trial court decision ruled that the Federal Wiretap Act did not apply. A plaintiff in a sexual harassment case placed a tape recorder on the corner of his work station (an open cubicle with sides that were significantly below ceiling level) in a shared work area. He did not inform co-workers of this nor did he ask permission to record. Four feet away a female supervisor and a female temporary worker were discussing him: - "He doesn't want another woman... here," one of them said, and added that she was "tempted to go with the female just because of that." - The employer contended that: - the recording violated the wiretap statute's prohibition on "the interception of oral communications" and therefore was inadmissible evidence and - also contended that the two women had a reasonable expectation of privacy because they spoke in a "hushed tone" in the supervisor's cubicle when no one else was present and, moreover, the supervisor said she was "not supposed to talk about this," suggesting she had at least a subjective expectation of privacy. This was found by the trial judge to be insufficient evidence that the persons recorded had taken sufficient steps to protect the privacy of this conversation. Perraglio v. State of New Mexico, Dept. of Game and Fish, (U.S.D.C.N.M., 7/8/09); CV 08-0351 WPL/RHS [enhanced lexis.com version]. [Note: Expectation of privacy was objectively examined and did not depend on the subjective expectations of the two women.] FMLA: not eligible, mistaken authorization, estoppel claim rejected Illustrative; not controlling law. Check eligibility before authorizing FMLA leave in order to be certain that a particular employee is eligible. This employee's claimed FMLA rights were denied after he underwent elective surgery: when he returned to work his position had been eliminated and no other positions were available, so his employment was terminated. He sued on the legal theory of equitable estoppel, which requires (1) a definite misrepresentation about a material [legally significant] fact, (2) reasonable reliance in that, and (3) detriment to that person. The employee's claim failed because, eligible or not, he had already decided to have the surgery (and thus no detrimental reliance). So, the employer won, but it could have saved the expense of litigation if it had checked the employee's eligibility before telling he qualified for FMLA rights. Dombrowski v. Jay Dee Contractors, No. 08-1806 (6th Cir., 7/8/09); [Note: no citation available as of 7/22/09.] [enhanced lexis.com version]. Retaliation: pretext, bragging supervisor Illustrative; not controlling law. Two male plaintiffs were allowed to take their retaliation claims to trial because the bragging comments of a supervisor about their termination was the basis for a jury to determine if the reason for termination was a pretext. Corbitt v. Home Depot USA, Inc., No. 08-12199 (11th Cir., 7/10/09); 2009 U.S. App. LEXIS 15547; Internet: http://www.ca11.uscourts.gov/opinions/ops/200812199.pdf [enhanced lexis.com version]. Title VII: Faragher/Ellerth affirmative defense, failure to promptly report discrimination Illustrative; not controlling law. The Faragher and Ellerth cases imposed a number of requirements on employers to institute anti-discrimination policies and practices to prevent and cure workplace discrimination, and one of the duties it required of victims was prompt reporting in order to allow the employer to comply with anti-discrimination statues. Failing to take advantage of the protections provided by the employer could bar a victim's claim, which is what happened in this case. Taylor v. Solis, No. 07-5401 (D.C. Cir., 7/10/09); 2009 U.S. App. LEXIS 15319 [enhanced lexis.com version]. USERRA: leave for military reasons Illustrative; not controlling law. Taking leave for military reasons is protected by the Uniformed Services Employment and Reemployment Act. A postal employee was discharged for excessive leave. Though the reason was stated as excessive absence, the motivating factor was absence while on military duty. Erickson v. US Postal Service, 2008-3216 (Fed. Cir.,7/15/09); 2009 U.S. App. LEXIS 15573; Internet: http://www.cafc.uscourts.gov/opinions/08-3216.pdf [enhanced lexis.com version]. ADA; reasonable accommodation, reassignment, position must be available Controlling law. Neither the ADA nor the ADAAA require an employer to create position for a disabled employee. As a note of caution, prevention usually being better than cure, this case appears to be a narrow ruling, and under different circumstances might be prudent to at least engage in some preliminary exploration by the employer and employee of some possibilities. Iverson v. City of Shawnee, Kansas, No. 08-3264 (10th Cir., 6/17/09); 2009 U.S. App. LEXIS 12931; Internet: http://www.morelaw.com/verdicts/case.asp?n=08-3264&s=KS&d=40474 [enhanced lexis.com version]. This employee injured her back and underwent surgery. Afterward she was tested for her ability to return as an officer. Unfortunately, she did not physically qualify. No positions existed for which she could have been transferred to. Alleging failure to accommodate, her claim was based on her contention that she be given an open position as a detective or non-officer, but did not identify any such available position. Our 10th Circuit Court of Appeals ruled that without such information, an employee cannot subsequently claim failure of the employer to engage in interactive accommodation process because there is no evidence that an interactive process would have probably identified a reasonable accommodation. Title VII: similarly situated, different supervisor safety infraction, leniency Illustrative; not controlling law. "Similarly situated" and "nearly identical are not synonymous with "identical. In this case an African-American train engineer was subjected to an adverse employment action that was less lenient than that of a White engineer. Though the two supervisors were different, the person ultimately deciding on the actions was the same person in each instance. Lee v. Kansas City S. Ry. Co., No. 30444 (5th Cir., 6/30/09); 2009 U.S. App. LEXIS 14336; 106 Fair Empl. Prac. Cas. (BNA) 1030 [enhanced lexis.com version]. NLRA/NLRB: email policy, selective enforcement Illustrative; not controlling law. Cases from the District of Columbia Court of Appeals are not controlling in our 10th circuit jurisdiction, but often area found to be persuasive authority of other circuits, including our own. Twice, the employer took an adverse employment action against a union president for using company email for matters related to union matters. The decisive factors were not whether the activity was protected by the NLRA or a violation of company policy, but rather that the adverse employment action was is was applied. Guard Publishing Co., d/b/a Register Guard v. NLRB, No. 07-1528 Consolidated with 08-1006, 08-1013 (D.C. Cir., 7/7/09); 2009 U.S. App. LEXIS 14952 [enhanced lexis.com version]. Title VII: racial discrimination, conflict between disparate treatment disparate impact, "objective, strong basis in evidence", "business necessity", "job-related", validity of testing and interviewing. Download 5.55 Mb. Share with your friends:
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