Human resources & employment law cumulative case briefs
Jurisdiction: Eighth Circuit
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Jurisdiction: Eighth Circuit Dorris v. TXD Services, LP, No. 12-3096 (8th Cir., 2/27/14); http://media.ca8.uscourts.gov/opndir/14/02/123096P.pdf [enhanced lexis.com version]. Employees on USERRA leave must have the same rights and benefits as are available from other leave policies and practices of the employer. The burden of proof is on the employer to show compliance. WARN: Worker Adjustment and Retraining Notification Act, portfolio – investors – lenders Jurisdiction: Second Circuit
Private equity investors and lenders (and their attorneys) need to be aware of this decision to ensure adequate implementation of corporate formalities to insulate themselves from the employment decisions of their portfolio companies in order to avoid possibly being held liable violating employment laws such as WARN Act. Summary by the appellate court: Appeal from decisions and orders of the United States District Court for the Southern District of New York (McMahon, J .) dismissing plaintiff’s putative class action claim brought against defendants for alleged violations of the Worker Adjustment Retraining and Notification Act (“WARN”). We hold that (1) the district court correctly determined the private equity defendants were investors, not “single employers” with their subsidiary within the meaning of WARN, and thus were properly dismissed; and (2) the district court erred in granting summary judgment to BHY S&B HoldCo, LLC, which operated the entity plaintiff worked for, because plaintiff raised a question of material fact as to whether BHY S&B HoldCo, LLC was a single employer with BH S&B Holdings LLC. Affirmed in part, vacated and remanded in part. FMLA: leave – refusal allowed Jurisdiction: Ninth Circuit Escriba v. Foster Poultry Farms, Inc., Nos. 11-17608, 12-15320 (9th Cir., 2/25/14): http://cdn.ca9.uscourts.gov/datastore/opinions/2014/02/25/11-17608.pdf [enhanced lexis.com version]. The employee declined designating her leave as FMLA. Upheld. Summary by the appellate court: The panel affirmed the district court’s judgment, after a jury trial, in favor of the defendant in an action under the Family and Medical Leave Act and its California equivalent. The panel held that the district court did not err in denying the plaintiff’s motion for summary judgment because an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking leave would have invoked FMLA protection. The panel held that the district court did not err in denying the plaintiff’s motion for judgment as a matter of law because, viewing the evidence in the light most favorable to the jury’s verdict, there was substantial evidence that the plaintiff elected not to take FMLA leave. In addition, the district court did not err in admitting evidence about the plaintiff’s prior FMLA leave. handbook, insubordination – lack of respect, negative attitude Jurisdiction: All Copper River of Boiling Springs, LLC, 360 NLRB No. 60 (2/28/14) [enhanced lexis.com version]:
The company handbook contains a negative attitude rule prohibiting . . . “[i]nsubordination to a manager or lack of respect and cooperation with fellow employees or guests” * * * and “[t]his includes displaying a negative attitude that is disruptive to other staff or has a negative impact on guests.” The misbehaving employee’s employment was terminated using profanity to disparage the restaurant in conversations with its customers. [Comment: The article is an excellent discussion of the varying weight of decisions, depending on which members are on the deciding panel. Also, NLRB decisions are frequently appealed and often reversed.] Benefits: public sector, retirement - annual cost-of- living adjustment (COLA)
Jurisdiction: New Mexico Bartlett, et al., v. Cameron, et al., 2014-NMSC-002 (NMSC, 12/19/13); http://www.nmcompcomm.us/nmcases/NMSC/2014/14sc-002.pdf [enhanced lexis.com version]. Bosson, Justice: {1} Petitioners are retired teachers, professors and other public education employees (collectively, Retirees) who seek a writ of mandamus against the New Mexico Education Retirement Board (ERB), which administers their retirement plan under the Educational Retirement Act (ERA). See NMSA 1978, § 22-11-6 (2011) (describing the powers and duties of the ERB); see also NMSA 1978, §§ 22-11-11 to -15 (2011) (describing the educational retirement fund). Retirees seek to compel the ERB to pay them an annual cost-of- living adjustment (COLA) to their retirement benefits, calculated according to the statutes “ in effect at the time of Petitioners’ date of maturity of their rights ,” instead of the current statutes as recently modified by our Legislature. {2} In requesting this writ, Retirees challenge the constitutionality of a recent legislative amendment that reduces the future amounts all educational retirees might receive as a COLA. See NMSA 1978, § 22-11-31 (2013). Essentially, the narrow question before this Court is whether the New Mexico Constitution grants Retirees a right to an annual cost-of-living adjustment to their retirement benefit, based on the COLA formula in effect on the date of their retirement, for the entirety of their retirement. For the reasons discussed below, we conclude that the New Mexico Constitution affords Retirees no such right, and accordingly we deny the writ of mandamus. Constitutional Law: due process – adverse employment action
Jurisdiction: New Mexico Victor v. New Mexico Department of Health, et al., No. 31,497 (NMCA, 10/3/13); http://www.nmbar.org/Attorneys/lawpubs/BB/bb2014/BB022614.pdf [enhanced lexis.com version]. 53.9 SBB 32 (NMCA, 2.26.14); 2014-NMCA-012. Summary by the appellate court: {1} Appellant Patricia Victor appeals the district court’s order affirming a decision of the secretary of the New Mexico Department of Health (the Department) finding that, in her capacity as a certified nurse aide, Appellant abused residents of a health care facility. The finding led to the permanent placement of Appellant’s name on a nurse aide registry, thereby effectively ending her ability to find employment as a certified nurse aide. Appellant claims that her right to procedural due process was violated. We disagree and affirm the district court’s order. Retaliatory Discharge: adverse employment action, negligent infliction of emotional distress evidence, expert witness Jurisdiction: Tennessee Coleman v. Humane Society of Memphis and Shelby County, No. W2012-02687-COA-R9-CV, (Ct.App.TN, 2/1414); http://www.tncourts.gov/sites/default/files/colemanrebeccaopn.pdf; 2014 Tenn. App. LEXIS 77 [enhanced lexis.com version]. Expert testimony is required in Tennessee for causation and damages issues when negligent infliction of emotional distress is the sole claim. However, the Coleman case involved issues of both retaliation and negligent infliction of emotional distress.
FCA: Fraudulent Claims Act, whistleblower, retaliation, damages Jurisdiction: Fourth Circuit Bunk v. Gosselin World Wide Moving, No. 12-1417 (4th Cir., 1/8/14); http://www.gpo.gov/fdsys/pkg/USCOURTS-ca4-12-01417/pdf/USCOURTS-ca4-12-01417-0.pdf [enhanced lexis.com version]. What is the appropriate award of damages in a fraud claim action? This is a complex question, and it is explored in detail in this article by Chris V. Anderson and Margaret H. Campbell of Ogletree Deakins at http://blog.ogletreedeakins.com/entirely-comfortable-monster-striking-decision-unlikely-source-excessive-fines-false-claims-act/?utm_source=rss&utm_medium=rss&utm_campaign=entirely-comfortable-monster-striking-decision-unlikely-source-excessive-fines-false-claims-act. Litigation: electronically stored information (ESI), hold order, litigation hold process, discovery, motion to compel, F.R.C.P – Rule 37(b), sanctions denied Jurisdiction: U.S. District of Nebraska Brown v. West Corp., No. 8:11CV284 (U.S.D.C. NB, 12/4/13):
This case is a valuable study guide on the matter of a “hold order”. The federal trial court judge ruled that the defendant had provided “sufficient evidence” related to its “preservation and search protocols”. The court had previously ordered the defendant to provide discovery on its litigation hold process and efforts to search for relevant ESI. At this subsequent stage of trial preparation, it ruled that the defendant had provided “sufficient evidence” related to its “preservation and search protocols” and that the requesting party now had enough information and further discovery on that matter would be unnecessary. [Reminder: Failure to preserve ESI might result in a jury instruction to the effect that the jury may infer, from the failure of a party to save and provide certain information, that it was unfavorable to that party.] Title VII: race, retaliation – timing, McDonnell Douglas evidence burden-shifting framework, summary judgment dismissal affirmed Kenfield v. Colorado Department of Public Health & Environment, No. 12-1347 (10th Cir., 2/14/14); http://www.ca10.uscourts.gov/opinions/12/12-1347.pdf [enhanced lexis.com version]. Summary by the appellate court: Janell Kenfield filed this action under Title VII of the Civil Rights Act, 42U.S.C. § 2000e et seq., claiming her employer, the Colorado Department of Public Health and Environment, discriminated against her on the basis of her race, and then retaliated against her when she complained about it. She appeals the district court’s grant of summary judgment in favor of Defendant. We affirm substantially for the reasons given by the district court in its thorough assessment of Ms. Kenfield’s claim. Reasoning:
Almost a year later, she filed a second EEOC claim, alleging two additional instances of racial discrimination:
Notably, from the opinion: As the district court mentioned, while it is unfortunate that Ms. Kenfield and Ms. Bruce had a difficult relationship, an inference of discrimination or retaliation cannot be drawn based merely on an unfriendly work environment. Wage and Hour: litigation, contract – sufficient funding, civil procedure – pleading – demurrer – failure to state a claim – 12(B)(6) Jurisdiction: California Hawkins v. TACA Int'l Airlines, S.A., et al., No. B242769 (Cal.Ct.App. Jan. 27, 2014);
California law requires contracts to be sufficiently funded to provide wages at or above levels required by the state Labor Code. However, sufficiently detailed facts must be pled in order to survive a motion to dismiss for failure to state a claim upon which relief can be granted. Pertinent summary by the appellate court: Although Hawkins sued the airline defendants for entering into underfunded contracts, she admits that she has never seen the relevant contracts and has no information concerning their contents. She contends, however, that she may sue first and conduct discovery later to ascertain whether any of the contracts was underfunded . The airline defendants disagree. They contend that because Hawkins failed to allege any facts to s how that they knowingly entered into underfunded contracts in violation of section 2810 , the demurrers were properly sustained. For the reasons that follow, we agree that the complaint fails to allege sufficient facts to state a cause of action and affirm. [Comment: Jurisdictions with rules of civil procedure tracking the Federal Rules of Civil Procedure numbers, this would be a Rule 12(B)(6) situation, and perhaps even Rule 11.
Simply stated, it isn’t okay to shoot first and ask questions later.] PERA: benefits - pension
Jurisdiction: New Mexico City of Artesia, et al., v. Public Employees Retirement Association of New Mexico, No. 32,355 (NMCA, 9/16/13, certiorari denied); 2014-NMCA-009 – http://www.nmcompcomm.us/nmcases/NMCA/2014/14ca-009.pdf; 53.8 SBB 25 Summary by the appellate court: {1} The City of Artesia (the City) and its Chief of Police Donald Raley (Raley) (Plaintiffs) filed an action for injunctive relief, writ of mandamus, and declaratory judgment to prevent the Public Employees Retirement Association of New Mexico (PERA) from suspending Raley’s pension after the March 2012 municipal election in Artesia. When Raley was appointed to this position, NMSA 1978, Section 10- 11-8(D) (2004) (amended 2010) provided that a PERA retiree appointed as a chief of police for a municipality had the option of filing an irrevocable exemption from PERA membership for the chief of police’s “term of office.” In 2010, the Legislature amended Section 10-11-8 and removed this chief of police exemption. The district court determined that PERA could not apply the 2010 version of Section 10-11- 8 to Raley because the City appointed Raley for an indefinite term. We hold that Raley’s term of office coincides with the City’s organizational meeting following the municipal election held every two years and, therefore, the district court erred in determining that Raley’s term of office was for an indefinite term. Accordingly, we reverse. , ADAAA: automatic termination policy, essential functions – accommodation – interactive process, litigation - Rule 12(b)(6) motion to dismiss denied Jurisdiction: Seventh Circuit is a federal trial court ruling, so it applies only to the parties to this specific lawsuit. However, the EEOC makes a persuasive point on the issue of whether the company policy automatically eliminates consideration of what might be available to an employee elsewhere in the company. The larger the company, the greater the possibility that some other position might be available for which an individual might be qualified, with or without accommodation. EEOC v. United Parcel Service, Inc., N.D. Ill., No. 09C5291, February 11, 2014 [enhanced lexis.com version]
Beginning in 2002, UPS instituted a policy of automatically terminating the employment of any employee who:
EEOC contends that leave policy operates as a “qualification standard” under the ADA because it fails to provide an individualized interactive assessment of whether an impaired individual can return to work with a reasonable accommodation, essential functions determinations, etc. [Comment: Cruise control or autopilot features may seem convenient, but that doesn’t mean you can safely doze off. Judge Ellis’s Opinion and Order and the two articles are definitely worth reading.] Unions: adverse employment action, retaliation, grievance
Jurisdiction: Tenth Circuit, Missouri Macon v. United Parcel Service, Inc., No. 12-3080 (10th Cir., 2/19/14); http://www.ca10.uscourts.gov/opinions/12/12-3080.pdf [enhanced lexis.com version]. Summary by the appellate court: United Parcel Service (UPS) fired Jeff Macon for dishonesty. He claims this stated reason was a pretext; he was actually fired because he exercised his rights under the Kansas worker’s compensation statute. In entering a summary judgment in favor of UPS, the district judge concluded the uncontested facts showed UPS to have honestly believed Macon was dishonest and discharged him in good faith. Irrespective of his complaints about pretext and disparate treatment by supervisors, the final decisionmaker for UPS, a regional independent union/management grievance panel, conducted an investigation and decided discharge for dishonesty was appropriate. Based upon that independent and informed decision, we affirm. Non-Solicitation: restrictive covenants, litigation – choice of forum – choice of law Jurisdiction: Pennsylvania Employers and employees can contractually agree where a lawsuit can be filed and which law will apply. In this case, the California resident was bound by the requirements of the employment agreement requiring that litigation must be in Pennsylvania and Pennsylvania law must be applied. [Comment: A deal is a deal – most of the time – the major exception usually being a provision contrary to state public policy.] Synthes USA Sales, LLC, v. Peter Harrison and Globus Medical, Inc., 2013 PA Super 324, No. 12 EDA 2013 (12/24/13) [enhanced lexis.com version]:
Summary by the appellate court: Appellant, Synthes USA Sales, LLC (“Synthes”), headquartered in Pennsylvania, appeals from the order entered in the Chester County Court of Common Pleas granting in part and denying in part it s motion for a preliminary injunction against Appellees, Globus Medical, Inc. (“Globus”), also headquartered in Pennsylvania, and Peter Harrison, a California resident. Synthes contends that the trial court erred b applying California law in contravention of a non- compete agreement that provides it “will be governed by Pennsylvania law applicable to contracts entered into and performed in Pennsylvania.” We agree with Synthes and therefore reverse the order below and remand for further proceedings. ERISA: disability benefits plan, contractual limitation provision, proof of loss – three years, ERISA §502(a)(1)(B) – 29 U. S. C. §1132(a)(1)(B), ERISA §502(a)(1)(B), exhaust mandatory administrative review process Download 5.55 Mb. Share with your friends:
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