Human resources & employment law cumulative case briefs
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Controlling law. This case expands the law for employees suing for retaliation - "protected activity" now applies to the investigatory stage even if no formal EEOC charging document results. Activity in opposition to illegal discrimination, or activity in support of an employee subjected to illegal discrimination, will now be protected from retaliation. Were it otherwise, essential witnesses might never come forward to testify because they might be doing so at their own peril, and prohibited behavior might not be stopped or otherwise acted upon. To better understand this case, a look backward is helpful. Ellerth, Faragher and other cases set up the requirements for employers to train employers and employees in their rights and responsibilities in defining and preventing illegal discrimination, providing methods and means for reporting and investigating it, and so on, and then providing defenses to employers if that is done properly. Title VII and other anti-discrimination acts provide protection against for employees who either oppose discrimination or for employees support the efforts of such employees. One problem with defining "protected activity" is that some federal courts ruled that protection extended to all phases of investigating and prosecuting a discrimination claim but others limited protection to only the prosecution stage. Limiting protection created a possible hazard of retaliation against employees who participated in an investigation that did not result in an EEOC formal charge and possible resulting litigation. This Crawford case cures that problem by ruling that protection against retaliation extends to all aspects of anti-discrimination activity. Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, No. 06-1595, ____ U.S. ____, U.S.S.C. 1/26/09); 2009 U.S. LEXIS 870 [enhanced lexis.com version]. An employee answering a question during an employer's initial internal investigation about a fellow employee's improper conduct concerning a sexual harassment allegation is engaging in "protected activity" under Title VII of the Civil Rights Act even though no formal discrimination charges were filed. The female employee was questioned during an internal investigation about whether she had witnessed another employee engage in "inappropriate behavior". Though the witness had not complained about his behavior, she testified several incidents of misconduct by the alleged harasser. Subsequently, the employer took no action against the alleged perpetrator, but fired the witness. The federal trial court and appellate court dismissed her claim of protected activity on the grounds that she was protected only if she was opposing prohibited activity in an EEOC or subsequent proceeding. She appealed to the United States Supreme court, which ruled in her favor. The employer had argued that if employees such as this witness are covered under Title VII's anti-retaliation provision, employers will be unlikely to conduct internal investigations. Rejecting that theory, the justices found that argument "unconvincing," and that employers already have "a strong inducement to ferret out and put a stop to any discriminatory activity in their operations as a way to break the circuit of imputed liability." Justice Souter wrote about contentions of the employer and the lower courts that . . . . . . if retaliation is an easy charge when things go bad for an employee who responded to enquiries, employers will avoid the headache by refusing to raise questions about possible discrimination. The argument is unconvincing, for we think it underestimates the incentive to enquire that follows from our decisions in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998), and Faragher v. Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998). Ellerth and Faragher hold "[a]n employer . . . subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with . . . authority over the employee." Ellerth, supra, at 765, 118 S. Ct. 2257, 141 L. Ed. 2d 633; Faragher, supra, at 807, 118 S. Ct. 2275, 141 L. Ed. 2d 662. Although there is no affirmative defense if the hostile environment "culminates in a tangible employment action" against the employee, Ellerth, 524 U.S., at 765, 118 S. Ct. 2257, 141 L. Ed. 2d 633, an employer does have a defense "[w]hen no tangible employment action is taken" if it "exercised reasonable * * * care to prevent and correct promptly any" discriminatory conduct and "the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise," ibid. Employers are thus subject to a strong inducement to ferret out and put a stop to any discriminatory activity in their operations as a way to break the circuit of imputed liability. Ibid.; see also Brief for Petitioner 24-28, and nn. 31-35 (citing studies demonstrating that Ellerth and Faragher have prompted many employers to adopt or strengthen procedures for investigating, preventing, and correcting discriminatory conduct). The possibility that an employer might someday want to fire someone who might charge discrimination traceable to an internal investigation does not strike us as likely to diminish the attraction of an Ellerth-Faragher affirmative defense. Thus, this case is headed back to trial court for further proceeding on the discharged employee's claim of retaliation against her for engaging in protected activity. ERISA: conflict between benefit plan document and divorce decree Controlling law. ERISA requires plan administrators to carry out the terms of the plan document because the terms of that document control administration of the benefits, not a divorce decree (other than a properly-drafted qualified domestic relations order - "QDRO"). Benefits administrators need to follow the ruling in this case and ought to discuss it with qualified, experienced counsel. Kennedy v. Plan Administrator for the DuPont Savings & Investment Plan, No. 07-636, ____ U.S. ____, (USSC, 1/26/09); 2009 U.S. LEXIS 869; Internet: http://supct.law.cornell.edu/supct/html/07-636.ZS.html [enhanced lexis.com version]. Title VII: gender discrimination, sex, hostile work environment; adverse employment action essential; disparate impact; intake questionnaire, charging documents; retaliation Controlling law, but unpublished opinion [see citation note below]. Though many issues were involved in this case, the key concept for most of us is that individual employees cannot use a "pattern and practice" legal theory of sexual discrimination for claims that are otherwise barred by the 300-day filing limitation; that theory is limited to use in class action lawsuits and suites filed by the government, and this is the majority rule in the federal appellate districts. This opinion probably is mostly of interest to attorneys. Semsroth v. City of Wichita, No. 07-3155 (10th Cir., 12/22/08); 2008 U.S. App. LEXIS 25914; Internet: http://www.ca10.uscourts.gov/opinions/07/07-3155.pdf. [enhanced lexis.com version] [Note: please refer to Federal Rules of Appellate Procedure Rule 32.1 governing the citation to unpublished opinions] Greta Semsroth; Kim Warehime; and Sara Voyles, female police officers, filed a class action lawsuit on behalf of themselves and all others similarly situated employees of the Wichita police department. Download and read the opinion from the Internet for the extensive details of this complex case in which the cases of Warehime and Voyles were dismissed for a variety of reasons, and Semsroth was allowed to go to trial on her retaliation and hostile work environment allegations. Important items in this case: - Individual employees cannot use a "pattern and practice" legal theory of sexual discrimination for claims that are otherwise barred by the 300-day filing limitation. - An EEOC intake questionnaire containing factual information and no request for action or relief by the EEOC is not sufficient to satisfy the filing requirement of the 300-day limit; usually that requires a charging document. - An adverse employment action must have occurred and have been stated in a proper EEOC document. - Claimants must exhaust their administrative remedies before they can file a court action; the EEOC is a "gatekeeper" for access to court and must be adequately notified of the alleged discriminatory acts and relief sought so that it can evaluate the case to see if is it sufficient to proceed, and if so, attempt resolution before judicial proceedings. - Semsroth had sufficient evidence to present retaliation and hostile work environment severe and pervasive behavior claims to a jury claims to a jury. Fiduciary duty: beach of duty, negligence, malpractice, breach of contract, and promissory estoppel; workers' compensation Controlling law. A "fiduciary duty" is a legal concept involving trust, competence, prudence a high level of responsibility when taking on an obligation to act for someone. "Promissory estoppel" in a case such as this means, in simple terms, "you said you'd do it," "I reasonably relied on that", "you didn't do it", "I was damaged because you didn't", and "you are stopped from denying it and are liable". DerKevorkian v. Lionbridge Technologies, Inc., Nos. 07-1125 and 07-1149 (10th Cir., 12/3/08); 2008 U.S. App. LEXIS 24566; Internet: http://ca10.washburnlaw.edu/cases/2008/12/07-1125.pdf [enhanced lexis.com version] Lionbridge bought the language translation service that employed DerKevorkian, an at-will employee working as a French language translator here in the country on an H-1B visa, which is valid for three years and must be kept current and accurate. Those visas are valid for three years and must be renewed. Lionbridge had a program that undertook to assist and support employees in the process of applying for and renewing "green cards" that allowed lawful status as a permanent resident in the USA. Employees participating in the program had to agree to work for the company for at least two years after receiving a green card, and the company had retained an attorney to handle and assist in the necessary procedures. Salary and classification matters had to be coordinated with the Colorado Department of Labor. CDOL had erroneously classified DerKevorkian's duties and salary, and corrections were estimated at about $10,000. The employer and its attorney decided to wait for the USDOL to issue new national prevailing wage guidelines, but the guidelines issued in August 2006 were not helpful to correct the problems. A month later her employer met and suggested that she accept a demotion (but no reduction in pay) to work as a translator. She refused because she was concerned that it might adversely affect her career and limit her to only translation work. Other suggestions were refused by her employer because it thought they were illegal or impractical. Her H-1B visa expired, she resigned, left the country, and was subsequently treated for anxiety and depression. In state court, her negligence and malpractice claims were dismissed. When her case was removed to federal trial court on the motion of her attorney, the jury awarded her damage of $221,433 for economic damages and $366,250 for emotional distress damages. Her employer appealed to the 10th Circuit Court of Appeals: Emotional distress: Her employer argued that this claim was barred a personal injury claim because workers' compensation laws bar such claims and limit them to recovery under state workers' compensation laws. Rejecting that argument, the appellate court found that her emotional distress did not arise out of and in the course and scope of her employment [also the law in NM], but rather because of the separate agreement by the employer undertaking to assist her with her green card application. Fiduciary duty: Further, the appellate court found that her employer had assumed a fiduciary duty to assist and support her in her green card application and that she had relied on that undertaking and her employer's experience and expertise. However, the appellate court also found that she had a duty to cooperate with her employer when difficulties arose and that she had a duty to mitigate [lessen] her damages accepting the position offered at the same salary. This issue was remanded [returned] to the federal trial court for a jury to consider her "duty to compromise" and what damage might appropriately found by the jury with that in mind. Unions: charges assessable to non-members Controlling law. Non-union members may be charged for union efforts that benefit all employees. A union representing Maine state employees was allowed to charge non-members for expenses incurred by the parent union for a favorable litigation result in a national effort (also described as "extra-local"). Locke v Karass, No. 07-610, (USSC, 1/21/09); 2009 U.S. LEXIS 590; Internet: http://www.supremecourtus.gov/opinions/08pdf/07-610.pdf [enhanced lexis.com version]. See the case of Davenport v. Washington Education Association briefed earlier in this database for another example of this legal doctrine. The United States Supreme Court held that First Amendment to the United States Constitution permits such charges if: 1) the subject matter of the litigation would be chargeable to nonmembers if the litigation were local, i.e., it was appropriately related to collective bargaining rather than political activities, and 2) the charge was of a nature that the contributing local branch of the union could reasonably expect that other locals would contribute into the national pool for such costs. Quoting from a portion of the Court's introductory paragraph:
Alcohol testing: random, refusal, employee not in "safety sensitive" position at the time Illustrative; not controlling law: A mandatory test must be based on a valid business purpose. Thus, the adverse employment action against a pilot on leave for hypertension and not in a "safety sensitive" position was reversed. The employee had previously tested positive for alcohol on a day he was schedule to fly may have been suspected of having a drinking problem, but the appellate court found that was irrelevant when he was on leave. Prudence would suggest that a suspicious employer might need to approach a situation like this in a different way. Read this case if you have a similar situation. Continental Airlines, Inc. v. ALPA, No. 07-20835 (5th Cir., 1/13/09); 2009 U.S. App. LEXIS 576; Internet: http://www.ca5.uscourts.gov/opinions/pub/07/07-20835-CV0.wpd.pdf [enhanced lexis.com version]. Title VII: racial bias, opportunities for experience, poor qualifications; untimely filing, claim barred, "discrete acts" Illustrative; not controlling law: Claims based on "discrete" [i.e., specific, standing alone, individual, etc.] acts will be barred as untimely filed if they occurred outside of the time period for filing such a claim even though they may be related. An African-American employee not selected for a position claimed discrimination because other applicants were more qualified because they had been provided training and other opportunities denied to the African-American applicant. It may well strike you that case resembles Ledbetter v Goodyear Tire & Rubber Co., which held that her claims for back pay were barred because each paycheck was a discrete act and she was limited to acts of alleged discrimination that fell within the statutory filing period. Legislation is working its way through Congress to "fix" the I problem, but it may not apply to a situation such as this. Be sure to discuss this with the company's employment law attorney if the Ledbetter legislation passes and is signed by the President; there may be a question of how broadly that legislation may apply. Jackson v. City of Chicago, No. 07-3772 (7th Cir., 1/13/09); 2009 U.S. App. LEXIS 411 [enhanced lexis.com version]; Internet: http://www.plol.org/Pages/Login.aspx?ReturnUrl=%2fPages%2fSecure%2fDocument.aspx%3fd%3dLBnP4eV%252fZPMt3nZcMAXNUA%253d%253d%26l%3dCases%26rp%3d15&d=LBnP4eV%2fZPMt3nZcMAXNUA%3d%3d&l=Cases&rp=15. Title VII: punitive damages, 1:1 ratio Illustrative; not controlling law: Ratios for punitive damages have been narrowing since several years ago when guidelines were announced by the U.S. Supreme Court in State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408 (2003), basically a limit of about 10:1.At times a low limit of 1:1 may apply when the compensatory damages are very high, $16.6 in this case. Jurinko v. Medical Protective Co. Nos. 06-3519 & 06-3666 (3rd Cir., 12/2408); 2008 U.S. App. LEXIS 27016 [enhanced lexis.com version]; Internet: http://www.ca3.uscourts.gov/opinarch/063519np.pdf. Title VII: religion, 9/11, anti-Muslim comments; adverse employment action decision, direct evidence, "convincing mosaic" of evidence Illustrative; not controlling law. Even though a comment by a law firm partner was not that of one deciding on termination, it was held to be admissible evidence of a pervasive atmosphere in the office. A law firm partner's comments after the 9/11 attack that "those people don't belong here" created a "convincing mosaic" of direct evidence of illegal discrimination. This plus additional evidence provided a sufficient basis supporting the associate's discrimination claim. Hasan v. Foley & Lardner LLP, No. 07-3025 (7th Cir., 12/11/08); 2008 U.S. App. LEXIS 25848 [enhanced lexis.com version];. Internet: http://online.wsj.com/public/resources/documents/foleylardner.pdf. FLSA: store managers performing mostly non-exempt duties
FMLA: hives, intermittent leave, call-in required for each day on extended leave, company policy, collective bargaining agreement Illustrative; not controlling law. Company policy required an employee on indefinite sick leave to call in each day to report an absence, and the CBA stated that an absence of three consecutive days without notice is considered a resignation from employment. These requirements applied to all employees irrespective of what kind of leave it might be. Melondy Bacon, janitor, suffered from hives resulting from chemical exposure in her work, and she qualified for intermittent FMLA leave for that chronic skin condition. Though Bacon's general physician was unable to specify the duration of treatment for each episode, she estimated allergy treatments of once a month with a period of 24 hours for recovery. Bacon advised her supervisor that she would be on extended leave until she could get an appointment with an allergist. During the following month she called in each day advising that she had not yet seen an allergist, and her absences were recorded as FMLA leave. Shortly after that period she stopped calling in, her explanation being that her failure to continue calling in came after she "received information on the federal guidelines for FMLA which did not require any call ins." Summary judgment in favor of the employer was granted by the trial court and affirmed by the appellate court: it is not an interference with FMLA rights if the employer can prove it would have made the same decision had the employee not exercised FMLA rights. In this case the company policy and the CBA allowed the employer to take the adverse employment action because it could have done so against any employee, FMLA leave or not. Bacon v. Hennepin County Medical Center, No. 08-1168, No. 08-1237 (8th Cir., 12/22/08); 2008 U.S. App. LEXIS 26101[enhanced lexis.com version]; Internet, The Public Library of Law: http://www.plol.org/Pages/Login.aspx?d=wFsjjbDOF2ax%2fP%2broCW%2fFA%3d%3d&l=Cases. [Note: Department of Labor Opinion Letter FMLA2009-1A dated January 6, 2009, states that under its new FMLA regulations, employers can require employees requesting FMLA leave to follow the employer's normal procedures for calling to advise that they will be off work.] ADEA: pretext unproven, elaboration on initial justification Controlling law: Adding to an explanation for a termination is generally not a good idea. However, in this case elaborations on the initial explanation added specific details rather than different or inconsistent reasons, which is a narrow distinction. It is better to have proper documentation prepared as a problem situation develops in order to provide all of the pertinent details as soon as a discrimination claim requires a response. Unfortunately, that is not always possible. Ramsey v. Labette Medical Center, No. 07-3357 (10th Cir., 10/23/08); 2008 U.S APP. LEXIS 22209; 104 Fair Empl. Prac. Cas. (BNA) 1283[enhanced lexis.com version]; Internet: http://ca10.washburnlaw.edu/cases/2008/10/07-6231.pdf Read the case for details that are more useful in their entirety than in briefed form. These points made by the appellate court are of general interest, though. - It refused the employee's request to analyze whether the hospital's business decisions were wise, fair or correct because "the relevant inquiry is whether the employer honestly believed its reasons and acted in good faith upon them." - As often has been stated by the courts: "We consider the facts as they appeared to the person making the decision, and we do not second-guess the employer's decision even if it seems in hindsight that the action taken constitutes poor business judgment." Title VII: pretext unproven, dominant reason for discharge unrefuted, attempts to refute collateral reasons essentially irrelevant Controlling law: Misappropriation of company assets was in and of itself sufficient reason for discharging this manager, and his failure to refute the dominant reason for his termination caused his pretext claim to fail [Note: See the recent brief in this database of Dennis v. Osram Sylvania for details of requirements for proving a pretext claim]. His attacks on other reasons could not overcome the employer's dominant valid business reason for firing him. So, consider this: if an employer has one dominant reason for terminating and employee, the better business practice would be to clearly state that is the primary reason for the adverse employment action. As to other possible reasons, better practice would also be to ensure that if they are also stated as reasons they can be supported with solidly documented facts. Cooper v. Wal-Mart Stores, Inc., No. 07-2290 (10th Cir., 10/16/08); 2008 U.S. App. LEXIS 22192 [enhanced lexis.com version]; Notice: Please refer to Federal Rules of Appellate Procedure Rule 32.1 governing the citation to unpublished opinions. [Note: Recently Walmart switched to this version of its name, dropping the hyphen or star, plus no longer capitalizing the letter "m".] Kenneth Cooper, African-American store manager in Silver City had accumulated a number of complaint of inappropriate action, but he dominant reason for his discharge was actions during a business trip to Wal-Mart's distribution center in Buckeye, AZ. Following the business in Buckeye (west of Phoenix), Cooper and some others stopped over in Tucson for a day and night of shopping and other personal reasons. Cooper charged Walmart for the room and extra meals in Tucson for himself and wife and allowed those also making that stop to claim eight hours on their timesheet for that day. That violation of public policy was the dominant reason for his discharge. Investigation by the employer of allegations of: - Favoritism and inappropriate relationship with a female department manager: - $250 in gift cards, - visited her home several times, - items placed on layaway in her name, and - pay raises substantially greater than other managers. - Employees threatened with retaliation if they reported him to his supervisors. - Sexually suggestive remarks during store meetings. - Demoting an employee contrary to Walmart's disciplinary process. - Presents of $25 gift cards to employees for dancing with him at a company party. Walmart's dominant reason for firing him was misappropriation of company funds and assets, which was its valid business reason, and he did not refute that. Rather, he attacked other allegations against him, which failed. The appellate court stated that "if the employer offers one reason, which, standing alone, would have caused it to terminate the [employee's employment], then debunking the employer's other reasons will not" save the employee's case. ADA: perfume, scents, chemical sensitivity; reasonable accommodation, inadequate interactive process; interactive dialog Illustrative; not controlling law. The employee suffered from chemical sensitivity, such as perfume, air freshener, potpourri and other scents, and other scented objects, which resulted in migraine headaches, nausea, coughing, rhinitis, voice loss, scratchy throat, and chest tightness. A coworker favored scents, and that bothered the employee. Complaint to her supervisor and union, the coworker temporarily stopped using scents, but then reverted to using them, and that resulted in symptoms continuing so that the employee often used FMLA leave and sick days. Her October 2006 EEOC charge was dismissed on April 2007, and she then suggested a policy of limiting scents in the workplace. Support by her supervisor and department manager was rejected by HR, as was one limited to the department. HR took no further steps to explore accommodation. Relocation and separation of the employee and the scent-user was discussed but no action resulted. The trial court found that was undisputable that she was a qualified individual and that the employer was required to accommodate her if she had a disability. Further the court stated that the employer had a duty to an individual cover by the ADA to participate in good faith in an interactive process to determine a reasonable accommodation. The trial judge found that the employer may not have adequately complied with the duty of interactive pursuit of attempting to determine if she could be reasonably accommodated and that a jury should decide that issue. McBride v. City of Detroit, No. 07-12794 (E.D. Mich., 11/25/08); No. 07-12794, Jackson Lewis Internet article with details: http://www.jacksonlewis.com/legalupdates/article.cfm?aid=1593 [enhanced lexis.com version] Title VII: reduction in force (RIF) termination, alleged retaliation, no causal connection, poor performance documented, no pretext Illustrative, not controlling law. Full and objective documentation of performance deficiencies is critically important, and in this case solid documentation helped to defeat the employee's retaliation claim. As you will recall, evidence of retaliation has a three-part test: 1) Proof by the complaining employee of a prima facie case: a) that the employee engaged in an activity protected by an anti-discrimination statute, b) that the employee suffered an adverse employment action, and c) that a causal connection can be proved between 1)a) and 1)b). 2) If the prima facie case is made, then the employer must show a credible legitimate business reason for the adverse employment action. 3) Then the employee must prove that the reason shown by the employer is not credible and is actually a pretext for the retaliation.
- On February 5, 2004, he testified in a case against the employer in which a female employee alleged sexual harassment by one of her coworkers. - The day after, an investigation began into a complaint filed by an unsuccessful male employment applicant who alleged Dennis had engaged in "inappropriate and unprofessional" conduct that included references to the applicant's personal problems and then sharing details of those problems with a company supervisor. A meeting was held with an Osram in-house attorney and Dennis's supervisors at which it was decided to place a written warning in Dennis's personnel file. Dennis refused to sign a statement to that effect because he viewed this as retaliation against him for testifying in the sexual discrimination deposition. However, his supervisor had no knowledge of that participation in the female employee's discrimination case at the time his supervisor took action against him for the complaint by the unsuccessful job applicant.
- Dennis had not met his burden of proof for 1)c) of his prima facie case because he was unable to connect his protected deposition testimony to his subsequent termination - the individuals responsible for his termination "knew nothing about the [prior] deposition" at the time they decided to take the adverse employment action against him. [Note: It is what the decision-maker(s) knew at the time of decision, not what might have been learned later.] - Alternatively, the appellate court concluded that even if he had successfully established a prima facie case of retaliation, his employer had sufficient documentary evidence of legitimate reasons (prior poor performance) for his termination in the RIF, and Dennis failed to show those reasons were a pretext for retaliation.
ADA: retired employee, right to sue (standing) Illustrative; not controlling law. Does a retired employee have a right (courts describe that as "standing") to sue if that person no longer "holds" or "desires" a position with the employer? Our 10th Circuit Court of Appeals has not ruled on that issue. Federal appellate courts in the 6th, 7th, and 9th circuits have ruled such person have no standing to sue under the ADA, and the 2nd and 3rd circuits have ruled that they do. The plaintiffs in this case had left their employment and taken disability benefits from the company. When they accepted SSDI (Social Security disability benefits) the company reduced its disability benefits payments accordingly, as it was allowed to do under its written disability benefit plan. In deciding against these plaintiffs, the 6th Circuit Court of appeals relied on the definition in the ADA of a "qualified individual" as one that "can perform" in a position either held or desired by that person. It found that the ADA use of verbs in the present tense in defining "qualified individual" was determinative and held that the Act covered only current employees. Because the plaintiffs neither held nor desired a position, they were not entitled to sue under the ADA. McKnight, et al. v. General Motors Corp., No. 07-1479 (6th Cir. Dec. 4, 2008); 2008 U.S. App. LEXIS 24373; 2008 FED App. 0438P (6th Cir.); Internet: http://www.ca6.uscourts.gov/opinions.pdf/08a0432p-06.pdf [enhanced lexis.com version]. NLRB: duty to bargain, changes in terms and conditions of employment, drug and alcohol testing Download 5.55 Mb. Share with your friends:
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