Human resources & employment law cumulative case briefs
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Controlling law. Summary judgment in the trial court was reversed by our federal circuit appellate court because a reasonable jury could find that the employee was discriminated against. The problem here appeared to be insufficient training of managers and supervisors, as well as the failure of the employer to take prompt remedial action at the time the discrimination complaint were made. It also was detrimental to the employer's case that in a meeting the employee's supervisor told the employee's interpreter to be quite and told the employee to "speak American". Avila v. Jostens, Inc., No. 08-3167 (10th Cir., 3/19/09); 2009 U.S. App. LEXIS 6283; 105 Fair Empl. Prac. Cas. (BNA) 1501; Internet: http://ca10.washburnlaw.edu/cases/2009/03/08-3167.pdf [enhanced lexis.com version]. Discrimination: Evidence showed that a reasonable jury could find that Avila had been treated differently from other employees who had made similar errors that Avila was accused of. Testimony of his coworkers indicated that some of the alleged performance problems were either groundless or not as bad as those of other workers who were not disciplined as severely as Avila. Important to the appellate court were these factors: - Jostens failed to investigate the union's claims of discrimination by his supervisor. - Corrective and adverse employment actions were inconsistent with usual procedures of the employer. - Allegations against him from an unnamed employee were "vague and entirely subjective". Retaliation: Immediately after the union filed its discrimination grievance, Avila was transferred to another supervisor despite evidence that his former supervisor of four years testified he did "great work. Title VII: sexual attack, unwelcome behavior, gender, severe or pervasive hostile work environment, manager; constructive discharge; employer's negligence Controlling law: This complex case needs to be read in its entirety because "briefing" won't cover all of the important factors (i.e., to be brief would be incomplete). Chapman v. Carmike Cinemas, No. 08-4043 (10th Cir., 1/12/09); 2009 U.S.App. LEXIS 432; 105 Fair Empl. Prac. Cas. (BNA) 624; Internet: http://ca10.washburnlaw.edu/cases/2009/01/08-4043.pdf [enhanced lexis.com version]. Harassment: Our 10th Circuit Court of Appeals found that she had proved an initial sexual harassment case: 1) subjected to unwelcome sexual behavior, 2) harassment was based on gender, and 3) it was sufficiently severe or pervasive to create an abusively hostile work environment [that no reasonable employee should be subjected to]. Next, and importantly, because the harasser was a supervisor, the employer would be automatically liable if it was unable to show these two elements of an affirmative defense: 1) it exercised reasonable care to prevent and correct any sexually harassing behavior, and 2) the victim unreasonably failed to take advantage of any preventive or corrective procedures, measure or opportunities provided by the employer.
Arbitration: bad faith, sanction, award of fees, inherent authority Illustrative; not controlling law. How widespread this kind of ruling might be is questionable. However, this New York federal appellate court case upheld an award of attorney fees or arbitrator fees because of a party's failure to arbitrate in good faith. Usually, each party pays their own costs, but this case illustrates an important exception. Reliastar Life Ins Co. of New York v. EMC Nat'l. Life Co., No. 07-0828-cv (2nd Cir., 4/9/09); 2009 U.S. App. LEXIS 764. ADA: ovarian cancer, uncertain return date, possible accommodations, essential functions Illustrative; not controlling law. The return to work date of a store manager diagnosed with ovarian cancer was uncertain. Inquiry about possible accommodations made by her area manager was answered that she "did not know how long she would be out." Her claim of discriminatory termination of her employment failed in the federal appellate court, which noted "it is axiomatic that a person who cannot perform any of the functions of a job . . . cannot . . . be considered 'otherwise qualified'." Peyton v. Fred's Stores of Arkansas, Inc., No. 08-2346 (8th Cir., 4/15/09 2009 U.S. App. LEXIS 8121); Internet: http://www.ca8.uscourts.gov/opndir/09/04/082346P.pdf [enhanced lexis.com version]. Attorney-client privilege; work-product privilege: email, denied; must disclose and provide copy Illustrative; not controlling law. Attorney-client privileged communications and/or claims of attorney work-product usually are protected by the courts, but carelessness can defeat such a claim. In the course of an internal FLSA compliance review, the attorney conducting it noted that IT employees were erroneously classified as as a group as exempt from FLSA overtime (such determinations of questionable group classifications ought to be made on an individual basis). The email was written in part by the company's assistant general counsel, who recommended that certain IT employees be reclassified from exempt to nonexempt pursuant to an internal FLSA audit. Failing to clearly state that the email was an attorney-client privileged confidential communication or work-product defeated the employer's claim that the email should not be disclosed to the plaintiff employees. Clarke v. J.P. Morgan Chase & Co., 08 Civ. 02400 (CM) (DF) (S.D.N.Y., 4/10/09) [enhanced lexis.com version]. FLSA: overtime, "sovereign immunity", DOL may enter Indian land to inspect book and enforce Illustrative; not controlling law. Indian "sovereign immunity" is a generality with some restrictions, so as a practical matter that is an inaccurate description: "Indian tribes have a special status as sovereigns with limited powers. Indian tribes are dependent on, and subordinate to the federal government, yet retain powers of self government." Further, "those powers may be limited, modified, or eliminated by Congress." The DOL may enter Indian lands to inspect books, payroll records and other related items and matters. As stated in the opinion, similar rulings have been made by other courts in cases involving OSHA and the NLRA. Solis v. Matheson, d/b/a Baby Zack's Smoke Shop, No. 07-35633 (9th Cir., 4/20/09); Internet: http://www.ca9.uscourts.gov/datastore/opinions/2009/04/20/0735633.pdf [enhanced lexis.com version]. ADAAA, ADA: retroactive application apparently may not be a hazard The United States Supreme Court denied certiorari review of this 10th Circuit ADA case holding that driving was not a major life activity. Thus, that case briefed earlier in this database still stands as applicable law in an ADA case decided before the effective date of he ADAAA. Kellogg v. Energy Safety Servs., No. 08-965 (USSC 4/6/09) [enhanced lexis.com version]. [Note: Perhaps we can infer from this denial that the United States Supreme Court is disinclined to rule that the ADAAA ought to be applied retroactively, and rather that it is remedial legislation to have only prospective application.] Title VII: religion, police officer, accommodation, hijab (head scarf) not allowed Illustrative; not controlling law. The City of Philadelphia was found to have had valid professional reasons for denying a female Muslim officer's request to wear a hijab while on duty, and it had clear written policies supporting its requirement: - Strict enforcement of the uniform code supports essential values of impartiality, religious neutrality, uniformity and the subordination of personal preference would be severely damaged to the detriment of the proper functioning of the department. - The police commissioner testified that uniformity "encourages the subordination of personal preferences in favor of the overall policing mission" and conveys "a sense of authority and competence to other officers inside the Department, as well as to the general public." Further, the appellate court recognized that the undue hardship test was not a difficult threshold to pass, and thus held that the commissioner's "thorough and uncontradicted reasons for refusing accommodations [were] sufficient to meet the more than de minimis cost of an undue burden" on the employer. Webb v. City of Philadelphia, No. 07-3081 (3rd Cir., 4/7/09); 2009 U.S. App. LEXIS 7169; Internet: http://www.ca3.uscourts.gov/opinarch/073081p.pdf [enhanced lexis.com version]. FMLA: reprisal, retaliation, timing, no adverse employment action; public sector
Leave: NM victims of domestic violence Controlling law. Just to alert all of us, a new leave statute will go into effect July 1, 2009. It was SB68 and a PDF file of the entire bill can be obtained from http://legis.state.nm.us/Sessions/09%20Regular/final/SB0068.pdf. Below is an excerpt from the summary of the bill by the Legislative Finance Committee's Fiscal Impact Report [Note the "#" in the NMSA citation means final additional alphanumeric designations have not yet been assigned.]: Promoting Financial Independence of Victims of Domestic Abuse Act; 50-4-#, NMSA 1978; effective July 1, 2009. Domestic abuse leave can be taken for up to 14 days in any calendar year; - Requires employers to grant such leave without penalty, retaliation or loss of employment; - Purpose is to obtain: - protective court order or other judicial relief; - meet with law enforcement officials; - consult with attorneys or victim advocates; or - attend court proceedings related to the domestic abuse for themselves or family members. - Employer is authorized to require verification of need through written statement by: - victim; - victim's attorney; - victim advocate; - law enforcement official; or - prosecuting attorney. - Limits employer's authority to disclose verification information without victim's consent, except by: - court or administrative agency order; or - as otherwise required by state or federal law. FICA medical students eligible for exemption
ERISA: plant closure, no violation Illustrative; not controlling law. Some days the appellate judges let loose their humor, describing the world of ERISA as "the ubiquitous burden-shifting framework that has, like some B-movie villain, devoured nearly every area of law with which it has come into contact." The 6th Circuit Court of Appeals held that a group of former employees not transferred to the plant where their work was not located (after closure of their former plant) was not interference with vesting of their retirement rights. Failing to recall them did not violate Section 510 of the Act. A valid non-discriminatory reason was provided by the employer: expensive over-capacity. Crawford v. TRW Automotive U.S., LLC, Nos. 08-1132/1777 (6th Cir., 3/31/09); Internet: http://www.ca6.uscourts.gov/opinions.pdf/09a0124p-06.pdf [enhanced lexis.com version]. USERRA: testing, sufficient alternate location, police officer Illustrative; not controlling law. Police officers returning after active duty complained that they would have fared better in testing if they had been at a more convenient location. Section 4311 is an anti-discrimination section that does not require accommodation. There was no discrimination because the officers were not prevented from taking the exam because they "were on active duty". Rather they were treated no differently form other similarly situated employees. Sandoval v. City of Chicago, No. 08-2699 (7th Cir., 3/30/09); 2009 U.S. App. LEXIS 6863; Internet: http://www.google.com/search?client=firefox-a&rls=org.mozilla%3Aen-US%3Aofficial&channel=s&hl=en&q=Sandoval+v.+City+of+Chicago%2C+No.+08-2699&btnG=Google+Search [enhanced lexis.com version]. FMLA: form altered, leave denied Illustrative; not controlling law. Fraudulent altering her of her FMLA leave form by backdating resulted in denial of the employee's leave, plus termination of her employment. Smith v. The Hope School, No. 08-2176 (3/30/09); 2009 U.S. App. LEXIS 6985; Internet: http://www.morelaw.com/verdicts/case.asp?n=08-2176&s=IL&d=39495 [enhanced lexis.com version]. FMLA: evidence discovered during leave; termination, not interference, not retaliation Illustrative; not controlling law. FMLA leave is a grant of time off to take care of a serious medical condition, etc.; it is not a period of protection for previous misconduct. The FMLA reinstatement right unlimited. Temporary workers substituting for the injured employee discovered and reported misconduct: undelivered or damaged freight, unresolved customer complaints and incorrectly handled overtime payments. Investigation revealed numerous incidents of misconduct. When the injured employee returned from medical leave he was terminated. His claims of interference and retaliation were dismissed by summary judgment by the rail court and the appellate court affirmed those dismissals.because there was no causal link between his leave and the reasons for his termination: "the fact that the leave permitted the employer to discover the problems can not logically be a bar to the employer's ability to fire the deficient employee." If it were otherwise, employers would be (illogically) forced to either reinstate and continue to employ a substandard employee or to risk FMLA liability. Cracco v. Vitran Express, Inc., No. 07-3827, (7th Cir., 3/17/09); 2009 U.S. App. LEXIS 6067: Internet: http://www.morelaw.com/verdicts/case.asp?n=07-3827&s=IL&d=39456 [enhanced lexis.com version]. NLRB: protected concerted activity, not specifically pertaining to unions or union organizing, termination, unfair labor practice (ULP) Controlling law. Delivery employees were fired for filing an FLSA wage and hour lawsuit and were videotaped for picketing in front of the employer's restaurant. The National Labor Relations Act (NLRA) protects concerted activity of workers taken for their mutual aid and protection and relating to terms and conditions of employment. Saigon Gourmet. Rest., Inc., 353 NLRB No. 110 (3/9/09) [enhanced lexis.com version]. Title VII: gender stereotype, promotion, adverse employment action Illustrative; not controlling law. One of the purposes of antidiscrimination laws is to break down barriers arising from stereotyping. Promotion was denied in this case to a mother of an eleven-year-old son and six-year-old triplets. She was more qualified than other candidates, but was told her supervisor, that "it was nothing you did or didn't do. It was just that you're going to school, you have the kids, and you just have a lot on your plate right now." The appellate court stated, "Unlawful sex discrimination occurs when an employer takes an adverse job action on the assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibilities." Chadwick v. Wellpoint, Inc., No. 08-1685 (3/26/09); 2009 U.S. App. LEXIS 6426; Internet: http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=08-1685P.01A [enhanced lexis.com version]. FMLA: ineligible; handbook, promissory estoppel Illustrative; not controlling law. Though ineligible for FMLA leave (insufficient number of company employees) , the employee won FMLA rights because the employer told her she was eligible. Employers need to check both their handbooks and what their supervisors are telling employees. As you will recall, estoppel is a legal concept that allows a person to get something that they had benn told they would get or were entitled to (in practical terms, "But you said . . . ! . . . and I relied on it."). Reux v. Infohealth Mgmt. Corp., No. 08-cv-5068 (N.D. Ill. 3/10/09. Also see Thomas v. Miller, 489 F3d 293 (6th Cir., 2007) ruling that estoppel allowed COBRA coverage [enhanced lexis.com version]. USERRA: calculating liquidated damage Illustrative; not controlling law. The employer contended that it was not possible to calculate liquidated damages for an Air Force reservist not returned to a similar position. In rejecting that argument, the federal district trial judge noted that Wachovia was "a sophisticated company" that employed many commission-based financial advisors, had a military leave policy and a team of people responsible for dealing with military leave issues. Serricchio v. Wachovia Securities, LLC, No. 3:05-cv-01761-JBA (U.S.D.C.CN, 3/19/09); Internet: http://www.morelaw.com/verdicts/case.asp?n=3:05-cv-01761-JBA&s=&d=39410 [enhanced lexis.com version]. Title VII: First Amendment, free speech, physician, reproductive matters; adverse employment action Illustrative; not controlling law. A physician who opposed attempts to restrict medical residency students from abortion training was removed from a leadership position. This case is in early stages of litigation in Phoenix, but healthcare employers my want to follow this case for its free speech implications. Carey v. Maricopa County, CV05-025000-PHX-ROS (U.S.D.C.AZ) [enhanced lexis.com version]. Union, ADEA: collective bargaining agreement (CBA), arbitration, statutory right to sue Controlling law. A CBA that clearly and expressly required arbitration of ADEA claims was held to be enforceable. 14 Penn Plaza LLC v. Pyett, No 07-581, ____ U.S. ____ (USSC, 4/1/09); 2009 U.S. LEXIS 2497 [enhanced lexis.com version]; Internet: http://www.supremecourtus.gov/opinions/08pdf/07-581.pdf; http://www.law.cornell.edu/supct/html/07-581.ZS.html. [Now the question is how broadly may arbitration provisions in handbooks or contracts other than CBAs be enforced, and will they be upheld for other anti-discrimination laws.] Title VII: language problems, adverse employment action; reprisal; protected opposition, no notice of such activity Controlling law. Shortly after refusing to take lesson for improving his English language proficiency, a Nigerian-born employee was fired for performing poorly. His Title VII reprisal claim failed because the supervisor who made the decision to take the adverse employment action of firing him did not know he was engaging in activity protected by Title VII, discrimination based on race or national origin. His sole stated reason for refusing to take the language lessons was his contention that the failure of others to understand him was their lack of exposure to people with accents, and they would get used to it. The appellate court found his refusal of the course was because he thought it was unnecessary. Zokari v. Gates, No. 07-6173 (10th Cir., 3/17/09); 2009 U.S. App. LEXIS 5900: Internet: http://www.ca10.uscourts.gov/opinions/07/07-6173.pdf [enhanced lexis.com version]. ADA: alcoholic, major life activities, disability not proven FMLA: retaliation, proof of initial case, pretext, unreasonable corrective/adverse employment action
1) disabled as defined by the ADA; 2) qualified to perform the essential functions of the job with or without reasonable accommodation; and 3) discriminated against because of his disability. Novartis contended that his alcoholism wasn't a disability substantially limiting one or more of his major life activities, which he failed to do because his testimony was that: - his alcoholism generally limited his ability to daily care for himself, but - he testified when pressed for specifics admitted or conceded that: - it did not limit him from walking, seeing and dressing himself, - he was able to function "somewhat normally" if he regularly attended AA meetings, - he was able to go to work or otherwise complete assignments, and - his alcoholism had nothing to do with fluctuations in his sales performance. Thus, the appellate court concluded he lacked sufficient evidence that his alcoholism affected his ability to function in his job, and it affirmed summary judgment in favor of his employer. However, his FMLA retaliation claim will go to trial. FMLA: Establishing an initial case of retaliation requires a showing that: 1) he had engaged in a protected activity; 2) his employer took an adverse employment action against him that a reasonable employee would find retaliatory; and 3) a causal connection existed between the protected activity and the adverse employment action. In December of 2004 a new district sales manger took over, worked with the employee in February 2005, and he was critical of his performance. The employee informed his employer in April 2005 that he is an alcoholic, he entered inpatient on April 22nd for a month, participated in outpatient treatment, and returned to work in early June. On June 15th the district sales manger gave the employee a document entitled "Discussion Points and 30-Day Objectives" setting forth specific performance requirements to be met. His midyear performance review rated him as "partially meeting expectations", which is the lowest possible rating (in previous reviews he had ranked at the top or near the top). On August 11th his manager and a human resources representative presented him with a performance improvement plan (PIP) that was a final warning of deficient performance; the sales and administrative goals were found by the appellate court to be unfairly difficult. On August 26th the employee emailed a progress report acknowledging he had not met those PIP goals. A week and a half later he was fired. His retaliation claim was based on the contention that he was retaliated against for exercising his FMLA rights, which consisted of placing him on an unreasonable PIP and terminating him shortly after returning from treatment leave. His employer responded that he was fired for poor performance, which then shifted the burden of going forward to the employee to prove the employer's reason was a pretext for discrimination. He did that by presenting circumstantial evidence showing he was treated differently from similarly situated employees: - the appellate court compared his records of sales performance against the records of other similar sales representatives, and - it closely examined his performance reviews and the PIP, finding that: - until he took FMLA leave, his performance was comparable or better than a .number of his teammates, - his FMLA leave had adversely affected his sales performance numbers, and - his deficient sales numbers were used in addition to his administrative deficiencies to subject him to increasingly unrealistic work performance requirements that resulted in terminating his employment. Thus, the appellate court concluded that a reasonable jury could find that he was not actually fired for poor performance because the requirements made upon him after is FMLA leave were onerous and part of a retaliatory scheme to discharge him after his FMLA leave. Summary judgment in favor of the employer was reversed and his FMLA claim was reinstated He lost on his disability claim, but he was entitled to a jury trial on his leave claim. Though documenting corrective and/or adverse employment actions is essential, the actions of the employer must be reasonable under the circumstances. Courts repeatedly have stated are reluctant to second-guess employers, but they have also said they will scrutinize an employer's actions that clearly appear to seem suspicious. EEOC: ADA claim, exhaustion of administrative remedies, filing deadlines, timely "charge", sufficient information, permissive filing standard Download 5.55 Mb. Share with your friends:
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