Human resources & employment law cumulative case briefs
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Illustrative law; not controlling. A 69-year-old full-time teacher without tenure was entitled to a full trial on her claim of discriminatory reassignment to that substitute teacher. Critical factors: - comparison of tenure track teachers with ages of 39 and 42 were close enough to establish a prima facie case of discrimination, - seniority of those teachers could be manipulated by the principal, - discretion of the principal was allowed in deciding seniority. "An employer cannot defeat a claim of discrimination by giving younger employees greater seniority rights immediately before displacing an older, but less senior, employee". Filar v. Board of Educ. of the City of Chicago, No. 07-1275 (8th Cir., 5/22/08); Internet: http://www.plol.org/Pages/Login.aspx?d=TiBiplRMgsASnfM8GyRI6A%3d%3d&l=Cases [enhanced lexis.com version]. ADEA: termination, pretext claimed, subsequent valid explanation Controlling law in this jurisdiction. Though it is not good business practice to change or add to reasons for termination, at times it is allowed and succeeds. However, it is better practice for employers is to carefully examine the entire situation and provide all valid reasons for termination at the time of termination rather than incurring the expense of defending against a discrimination suit and hoping a later additional factor will prove successful. Ruleford v. Tulsa World Publishing Company, No. 06-5205 (10th cir., 2/22/08); 2008 U.S. App. LEXIS 3863; Internet: http://ca10.washburnlaw.edu/cases/2008/02/06-5205.pdf [enhanced lexis.com version]. Gary Ruleford began with the newspaper in 1971 as salesman, rising in 1999 to classified advertising sales manager. As time worsened for newspapers and their advertising revenues, during his time as manager sales decreased by $6M, cost of commissions increased by 28% and payroll expenses increased by 11%. Suing for ADEA discrimination, he claimed that was a pretext for age discrimination termination. The key to this case is the following quotation from the court [partially edited]: Ruleford argues he established pretext because Tulsa World's reasons for termination given during litigation conflict with the reasons given to him at the time he was terminated. At his termination meeting, Lorton explained to Ruleford he was being fired because management had lost faith in his abilities. Lorton * * * then cited five specific examples: (1) failure to personally seek business from automobile dealers; (2) absenteeism problems; (3) increases in commissions; (4) problems with employee use of business phone lines; and (5) failure to implement performance standards for the department. Ruleford claims Tulsa World asserted new reasons for his termination in this litigation by claiming he was fired because sales revenues declined while payroll and commissions increased. After his discrimination suit was filed the newspaper also added it explanation that sales revenues had declined by 20%. That provided a sufficient valid business reason for his termination and his suit was dismissed by both the trial and appellate courts. Arbitration: policy mass-emailed, upheld, contract, consideration Controlling law in this jurisdiction. Though it may not be the best business practice to announce the new policy that claims against the company must be submitted to binding arbitration, in this case that policy was enforced despite the employee's contention that its terms unfairly operated to the benefit of the employer and also put her in the position of either accepting those terms or quit the company. The better business practice is to follow up by providing each employee a copy of the new policy and obtain a signature acknowledging receipt. Cautionary note: HR staff and practitioners may want to discuss this case with legal counsel about the best business practices before making a change in arbitration agreement terms and then how best to implement the change. Pennington v. Northrup Grumman Space Systems Corp., No. 07-2250 (10th Cir., 3/14/08); 2008 U.S. App. LEXIS 5563 [enhanced lexis.com version]. When Christine Pennington was hired by TRW in 1998, the arbitration policy was non-binding. Northrup Grumman acquired TRW in December or 2002. A mass email was sent to all employees on 2/9/04 announcing the change to binding arbitration. There are two issues here: - whether the terms of the new arbitration policy were "unconscionable" under NM law and - whether this new term of employment was supported by adequate contractual consideration.
- there is an absence of a meaningful choice on the part of one party (which our courts call "procedural unconscionablity") and - terms that are unreasonably favorable to the other party ("substantive unconscionablity").
- the promise of a party to do something he is under no obligation to do or - that party's promise to forebear from doing something he has a legal right to do.
42 U.S.C. § 1981: contracts, retaliation claims allowed, Thirteenth Amendment, employment discrimination, Civil Rights Act Of 1866, statute of limitations, statutory interpretation Controlling law: Retaliation claims are allowed under the Civil Rights Act of 1866 that prohibits discrimination for race and color in contractual matters, and claimants are allowed a longer period within which to file than under the later antidiscrimination acts, and damages are not capped. CBOCS West, Inc. v. Humphries, No. 06-1431, ____ U.S. ____, (5/27/08); 2008 U.S. LEXIS 4516 [enhanced lexis.com version]. Under this act, any "person within the jurisdiction of the United States" has the same right to "make and enforce" contracts, regardless of their skin color, both at the time of making the contract and afterwards. Though not based on an employee's characteristic, such as race, but instead on an action taken by the employee, claims might include such things as complaining about work conditions or discriminatory treatment under and employment contract, written or otherwise. Justice Breyer summarized the case as follows [partially edited]: The case before us arises out of a claim by respondent, Hedrick G. Humphries, a former assistant manager of a Cracker Barrel restaurant, that CBOCS West, Inc. (Cracker Barrel's owner) dismissed him (1) because of racial bias (Humphries is a black man) and (2) because he had complained to managers that a fellow assistant manager had dismissed another black employee, Venus Green, for race-based reasons. Humphries timely filed a charge with the Equal Employment Opportunity Commission (EEOC), pursuant to 42 U.S.C. § 2000e-5, and received a "right to sue" letter. He then filed a complaint in Federal District Court charging that CBOCS' actions violated both Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq., and the older "equal contract rights" provision here at issue, § 1981. The District Court dismissed Humphries' Title VII claims for failure to pay necessary filing fees on a timely basis. It then granted CBOCS' motion for summary judgment on Humphries' two § 1981 claims. Humphries appealed. The U.S. Court of Appeals for the Seventh Circuit ruled against Humphries and upheld the District Court's grant of summary judgment in respect to * * * his direct discrimination claim. But it ruled in Humphries' favor and remanded for a trial in respect to his § 1981 retaliation claim. In doing so, the Court of Appeals rejected CBOCS' argument that § 1981 did not encompass a claim of retaliation. 474 F.3d 387 (2007). CBOCS sought certiorari, asking us to consider this last-mentioned legal question. And we agreed to do so. See 551 U.S. ____, 128 S. Ct. 30, 168 L. Ed. 2d 807 (2007). The United States Supreme Court reviewed past cases and affirmed the ruling of the Seventh Circuit Court of Appeals holding that a retaliation claim may be brought against CBOCS by Humphries. FYI: Genetic Information Nondiscrimination Act of 2008 ("GINA"), H.R. 493 HR practitioners need to begin familiarizing themselves with this new legislation passed by Congress and signed by the President. Googling "genetic information nondiscrimination act of 2008" will turn up numerous entries describing and discussing it. Effective dates are 11/21/09 generally, and 5/21/09 for health plans and health insurance plans that begin on and after that date. WARNING: This is a complex act to be aware of an to discuss in detail with experienced and trained human resources specialists and legal advisors Briefly, genetic information is broadly defined to include information about: - an individual's genetic tests, - the genetic tests of the individual's family members: - for a pregnant woman - the genetic information of any fetus carried by such pregnant woman; and - for an individual or family member utilizing an assisted reproductive technology - the genetic information of any embryo legally held by the individual or family member), and
- the manifestation of a disease or disorder in a family member [an individual's spouse or dependent child by birth or adoption], and certain other relatives of such individual, individual's spouse or dependent child. Genetic information does not include information about the sex or age of any individual. This act amends the following laws: - Employee Retirement Income Security Act of 1974 (ERISA), - Public Health Service Act, - Internal Revenue Code of 1986, - Title XVIII of the Social Security Act relating to Medigap, and - Health Insurance Portability and Accountability Act (HIPAA). ADA, ERISA: associational discrimination, employer monitoring medical expenses, employment termination, close temporal proximity, McDonnell Douglas proof
- The self-insured employer was concerned about the rising costs of healthcare. - Utilizing the "expense" approach for analyzing associational discrimination claims, the Tenth Circuit noted the employer - monitored health and welfare benefits in conjunction with an employee's personal leave, - kept tabs on high-dollar claims, and - specifically monitored the child's claims, which exceeded $62,000. The appellate court said, "given the difficulty in establishing an expense case…direct evidence of discrimination from [health care] costs will be rare. Where as here, the temporal proximity is close, it is a circumstance that should be given considerable weight." This case will go to trial on both the parents' ADA and ERISA claims for terminating them for having a sick child, a violation of: - the association clause of the Americans with Disabilities Act (ADA), 42 U.S.C. §12112(b)(4), and - the Employee Retirement Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001 et seq. Title VII: recorded hearsay, exception to exclusion; religious discrimination, hiring and rehiring Controlling law in this jurisdiction. Direct evidence of discrimination was gathered by surreptitiously tape recording conversations between employer and employee. Though the management person died and was unavailable for cross-examination, the taped conversations were held to be admissible at trial. Fischer v. Forestwood Co., Inc., No. 06-4121 (10th Cir., 5/12/08); 2008 U.S. App. LEXIS 10250 [enhanced lexis.com version]. The appellate court reversed the trial judge's ruling that the tapes were inadmissible hearsay [partially edited]: Hearsay evidence is generally inadmissible. Fed. R. Evid. 802. Such evidence "is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed. R. Evid. 801(c). A statement is not hearsay, however, if it is an admission of a party-opponent. Fed. R. Evid. 801(d)(2). An admission of a party-opponent is, among other things, a statement "offered against a party and is . . . (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship." Id. The taped conversations constitute admissions of a party-opponent because Erwin was president of Forestwood at the time of the conversations. As president, he was "authorized" by Forestwood "to make a statement concerning" hiring and firing. See Fed. R. Evid. 801(d)(2)(C). * * * Likewise, he was acting as an agent for Forestwood and was making statements within the scope of his authority. See Fed. R. Evid. 801(d)(2)(D). ADEA: bona fide occupational qualification, BFOQ, safety concerns Illustrative, not controlling law. A BFOQ must be shown by an employer that an age limit is reasonably necessary to the essence of the business. Though controversial these days as our population ages better at least in some segments of the population, age limitations have been upheld. In this case, the age limitation for corporation pilots that was similar to that for commercial airline pilots was upheld. EEOC v. (N.D.Tex, 4/28/08), Internet article: http://www.fordharrison.com/shownews.aspx?Show=3645 [Note: as of May 15, 2008, no other citation was available]. ADEA: benefits, salary level, arbitration Illustrative, not controlling law. Because salary levels were guaranteed for flight engineers only "until normal flight engineer retirement date" and the benefit plan set that date at age 65, salary reductions of two 75 year old flight engineers was held not to be discriminatory. Miller v. American Airlines, Inc., No. 07-1518 (7th Cir., 5/5/08); 2008 U.S. App. LEXIS 9631 [enhanced lexis.com version]. FMLA: leave denied, no discrimination, failure to follow rules, fraud prevention Illustrative, not controlling law. A married couple lost their FMLA discrimination claim for failing to follow filing rules. The appellate court said "nothing in the statute forbids an employer to adopt reasonable, nonburdensome measures for preventing fraud." Further, "There is a limit to how many warnings an employer must encumber its forms with." - The husband took off several days to care for their sick child. - He missed the deadline to file the medical certification. - The form he used went astray because it was preprinted with his wife's name and social security bar code information rather than his own. - Prohibiting interchange of forms was not an interference with FMLA rights. - It was not interference with FMLA rights for the company to require filing in person rather than faxing or mailing because an employer may want to avoid the possibility of an FMLA applicant forging a letter or embellishing the doctor's comments before forwarding it. Townsend-Taylor v. Ameritech Servs., Inc., No. 07-2166 (7th Cir., 4/29/08); 2008 U.S. App. LEXIS 9237; Internet: http://www.plol.org/Pages/Login.aspx?d=w6u5%2fM05BeITI04HHij0Sg%3d%3d&l=Cases [enhanced lexis.com version]. Benefits, Arbitration: severance pay denied
ERISA: plan administrator liability, misleading benefits documents, when medical expense deemed "incurred", flexible spending account (FSA); Firestone Tire & Rubber Co. v. Bruch precedent Illustrative, not controlling law. The FSA plan administrator [employer, in this case] provided documents that did not clearly state when a medical expense would be deemed "incurred" under the plan. The employee decided to have $3k of orthodontic work performed and paid the full cost during the plan year, but not all of the work was completed during the plan year. She based her decision on IRS rules on when medical expenses are incurred and on the employer's New Hire Guide and on its Summary Plan Description (SPD), both similarly worded. When she sought FSA reimbursement the employer-plan administrator reimbursed only a portion because the work was only partially completed. She sued for breach of fiduciary duty, which consists of proving the following: 1) the defendant [employer/plan administrator] was acting in a fiduciary capacity when it made the challenged representations; 2) these representations amounted to material [legally significant]misrepresentations; and 3) the plaintiff relied on those misrepresentations to his or her detriment. The appellate court found the employer-plan administrator had breached its fiduciary duty by not clearly stating how to handle such a payment and protracted treatment situation. O'Meara v. Cit. Group, Inc. (D.N.J 4/l1/08) [Note: also refer to Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 103 L. Ed. 2d 80, 109 S. Ct. 948 (1989) [enhanced lexis.com version]. Federal Civil Procedure : United States Supreme Court, higher standard of proof for dismissal Illustrative federal civil procedural note for attorneys. As you know, cases may be dismissed Federal Rules of Civil Procedure, Rule 12(b)(6) for failure to state a claim upon which relief can be granted, i.e., no matter what the facts are there is no legal basis to succeed. The 2007 USSC case of Bell Atlantic v. Twombly expressly rejected the standard long used for many years by the lower federal courts: a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the plaintiff's claim that would entitle the plaintiff to relief. Rather, the Court held that, though the factual allegations of a complaint need not be detailed, they must be strong enough to plausibly indicate that the plaintiff can prevail. This standard of proof is similar to that for summary judgment - a reasonable probability of winning at trial. Bell Atlantic v. Twombly, No. 05-1126, 550 U.S. 544 (2007): 127 S. Ct. 1955; 167 L. Ed. 2d 929; 2007 U.S. LEXIS 5901; 75 U.S.L.W. 4337; 2007-1 Trade Cas. (CCH) P75,709; 68 Fed. R. Serv. 3d (Callaghan) 661; 20 Fla. L. Weekly Fed. S 267; 41 Comm. (P & F) 567; Internet: http://www.supremecourtus.gov/opinions/06pdf/05-1126.pdf [enhanced lexis.com version]. ADEA: reduction in force, RIF, spreadsheet, hidden age data, password protected Controlling law. Existence of hidden age data in password protected cells of a spreadsheet provided as a tool containing information for evaluating candidates for layoff in the RIF was not evidence of discrimination because it was used only after RIF decisions were made. No evidence indicated that the hidden cells had been accessed those making RIF decisions. Further, all employees were evaluated on similar criteria, the same scale, and on terms without bias. Co., No. 07-3027 (10th Cir., 4/22/08); 2008 U.S. App. LEXIS 8714; Internet, More Law article: http://www.morelaw.com/verdicts/case.asp?n=07%2D3027&s=KS%20%20%20%20%20%20%20%20&d=36068 [enhanced lexis.com version]. FLSA: going and coming pay denied Illustrative, not controlling law. Merely carrying heavy brief cases to and from work did not entitle city fire alarm inspectors to claim minimal commuting time as work time because they had no additional responsibilities. Singh v. The City of New York, No. 06-2969-cv 2nd Cir., 4/29/08); 2008 U.S. App. LEXIS 9228 [enhanced lexis.com version]. Title VII: gender discrimination, adverse employment action Illustrative, not controlling law. A female detective was denied a transfer from the serology section to the more desirable fingerprint section with state-of-the-art technology. Under previous decisions an adverse employment action could be grounds for a discrimination claim, and conversely, denial of the opportunity to move to a "materially more advantageous" job can also be grounds for a discrimination claim if the employee can show that it offers an "objective and significant improvement in the terms, conditions, or privileges of" employment. Beyer v. County of Nassau, No. 06-4930-cv (2nd Cir., 4/23/08); 2008 U.S. App. LEXIS 8708: Internet: http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA2LTQ5MzAtY3Zfb3BuLnBkZg==/06-4930-cv_opn.pdf [enhanced lexis.com version]. Title VII: hostile work environment, severe, pervasive, failure to correct Illustrative, not controlling law. Over a three year period the only female sales executive in a department was exposed to crude talk and talk radio programming offensive to women; her complaints were ignored. This atmosphere was severe and pervasive enough to support he claim of a hostile work environment, even though she was not a target of that misbehavior. "Though we have never explicitly held that such `sex specific' language satisfies the `based on' element in a sexual harassment hostile work environment case even when the language does not target the plaintiff, we do so today," wrote the court. Reeves v. C.H. Robinson Worldwide, Inc., No. 07-10270 (11th Cir., (4/28/08); No. 07-10270; 2008 U.S. App. LEXIS 9171; Internet: http://www.ca11.uscourts.gov/opinions/ops/200710270.pdf [enhanced lexis.com version]. FMLA: employer, violation, attempt to comply, willful, statute of limitations, knew or should have known, reckless disregard Controlling law. Violations of the FMLA have a limitation of two years within which an aggrieved employee must file a claim or otherwise be barred, and for willful violations the limit is three years. The employee filed his claim in the period after two years but before three years had expired, so the only way for his claim to survive was to prove a willful violation of the FMLA. The Act does not define "willful" or "willfulness", and our federal appellate court is the first one in the country do so, and favorably for the employer. For your convenience, the Internet URL is provided so you can read the details. Bass v. Potter, No. 06-5149 (10th Cir. April 15, 2008); 2008 U.S. App. LEXIS 8122; Internet: http://ca10.washburnlaw.edu/cases/2008/04/06-5149.pdf [enhanced lexis.com version]. Download 5.55 Mb. Share with your friends:
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