Human resources & employment law cumulative case briefs

1. 
   rescind her appointment of Bartosiewicz,
   
2. 
   rescind all PELRB decisions made during his time on the board, and
   
3. 
   retroactively reappoint Boyd as the labor representative.
   

1. 
   The PEBA requires the governor to appoint according to their recommendation because it was unanimous, and
   
2. 
   The appointment of Bartosiewicz was invalid because COPA is not a local union.
   

Governor Martinez responded that at the time she appointed Bartosiewicz she had two valid labor recommendations:

1. 
   One from the six unions, and
   
2. 
   The COPA recommendation.
   

Judge Nash denied the petition and sustained Governor Martinez’s appointment of Bartosiewicz.

decisions are different from trial court decisions:

• 
  A trial court decision binds only the parties to that particular litigation (though its reasoning is may be persuasive to other courts, i.e., possibly persuasive, but not controlling), whereas
  
• 
  an appellate court decision is binding on subsequent litigation within the jurisdiction of that court (though a court of another jurisdiction might find its reasoning persuasive).]
  

FLSA: overtime pay, private security officers with supervisory duties; summary judgment denied

Title VII, constructive discharge, employed physician, lost income, retaliation

• 
  Naiel Nassar was born in Egypt and attended medical school there.
  
• 
  In 1990 he became a U.S. citizen.
  
• 
  He performed his medical residency and a fellowship in infectious diseases at the University of California, Davis.
  
• 
  In 2001 he was hired by the University of Texas Southwestern Medical Center (UTSW) as an Assistant Professor of infectious disease medicine, and some of his duties required that he provide patient care at Parkland Hospital’s Amelia Court clinic, an outpatient HIV/AIDS clinic affiliated with UTSW.
  
• 
  In 2004 UTSW hired Dr. Beth Levine as the chief of its infectious disease program.
  
• 
  She directed that he begin billing for the services he provided to the HIV clinic, to which he objected on the grounds that his salary for clinical services was fully funded by a federal grant, and as such, billing the patients would be “double dipping.”
  
• 
  As one might anticipate, he began to claim that Levine commenced to “harass” him:
  
  • 
    making derogatory statement about his race and his Muslim religion, including one comment that “middle easterners were lazy”, and
    
  • 
    those allegations were supported by a clinical supervisor whose affidavit described a “disconnect between Dr. Levine’s [derogatory] statements and the reality of Dr. Nassar’s work.”
    
• 
  Based on his concerns about Levine, in 2006 he applied for direct employment by the Parkland Health & Hospital System.
  
• 
  Parkland made preparations to hire Nassar, drafting a letter offering a staff physician job to him, but later the offer was withdrawn.
  
• 
  Nassar contended that UTSW retaliated against him by blocking the offer from Parkland because Nassar stated in his resignation letter that his primary reason for leaving UTSW was Levine’s harassment and discriminatory comments, which later testimony supported.
  
• 
  Nassar ultimately accepted a job in a smaller clinic in Fresno, California.
  

Two issues were to be decided at trial by jury:

1. 
   Whether Nassar was constructively discharged because of his race, national origin, or religious preference; and
   
2. 
   Whether UTSW retaliated against Nassar by blocking or objecting to his employment by Parkland after Nassar complained about his treatment at UTSW.
   

• 
  On the his constructive discharge claim, it reversed the verdict against UTSW, holding that though the evidence provided by him to the jury might have supported a claim of hostile environment, that evidence did not rise to the level of egregious conduct necessary to support a claim of constructive discharge.
  
• 
  On the retaliation claim, however, it upheld the method used by the jury to calculate his lost income:
  
  • 
    UTSW argued that Nassar’s lost income should have been the difference between that which he was earning at UTSW ($166,395 as an Assistant Professor) and his subsequent compensation in California (which varied from $165,000 to $180,000 a year, including benefits), but the district court allowed the jury to calculate the lost pay by comparing Nassar’s prospective income from Parkland ($240,500 a year, including benefits) to the amount that he was earning in California, which resulted in the jury award of $436,167.66 in lost back pay.
    
  • 
    The Fifth Circuit upheld that award because it made Nassar whole by placing him in the position that he would have been in “but for” the retaliation, and was in line with Title VII’s statutory provision.
    

ADA: reasonable accommodation, interactive process, chronic pain, problems obtaining medical documentation, suicidal thoughts stated on Internet, Notice of Separation letter, summary judgment denied both parties

judgment motions by both plaintiff and defendant were denied by the appellate court, so the case now will proceed on to jury trial.

1. 
   Count I: A horizontal price-fixing conspiracy whose purpose was to depress nurse wages among the hospitals (analyzed as a per se violation which obviates the need to prove competitive harm in the relevant market), and
   
2. 
   Count II: A horizontal information-exchange conspiracy whose purpose was to regularly exchange detailed, non-public nurse compensation information among the hospitals (analyzed under the rule of reason which requires proof of competitive harm in the relevant market).
   

[Note: This case may either proceed to trial or may be settled, but the price-fixing aspect is worth noting.]

• 
  a newborn or newly adopted child,
  
• 
  to care for a close relative with a serious health condition (the "family-care provision"), or
  
• 
  because the employee is personally suffering from a serious health condition (the "self-care provision").
  

Under the Eleventh Amendment, public employers, such as states and their subdivisions, have sovereign immunity from lawsuits brought by their employees. However, that immunity is not absolute. In the 2003 the Supreme Court case of Hibbs [cited above in the Syllabus] ruled that Congress, pursuant to its Fourteenth Amendment powers, properly abolished the States' sovereign immunity with regard to the family-care provision of the FMLA, because it found that family care provision was enacted for the specific purpose of combating gender discrimination in the workplace and therefore, satisfied the Fourteenth Amendment's purpose of ensuring equal protection under the laws for all citizens. This meant the public employees were assured the right to seek legal redress from their employers for violations of the family-care provision of the FMLA. What Hibbs did not decide was whether sovereign immunity of the States applied under other provisions of the FMLA, such as the "self-care provision". Coleman ruled that Congress exceeded its authority in subjecting the States to private lawsuits under the self-care provision of the FMLA.

• 
  First by telephone and then by email, the temporary employee stated that the life insurance benefit would be continued and paid for by the employer.
  
• 
  That was incorrect -- the summary plan description (SPD) advised participants that they had 31 days after their employment ceased to convert into “portable coverage” and pay the first premium.
  

After Wink died, his daughter was informed by the life insurance company that coverage had terminated at the time of Wink’s retirement. Wink’s wife was beneficiary, and she sued the employer, the plan, and the life insurance company for the benefits.

1. 
   The court granted the life insurance company’s motion for summary judgment [i.e., no issue(s) of material fact that a jury could disagree on] and dismissed it from the case:
   
   1. 
      The court concluded that the life insurance company had not made any misrepresentations to Wink and, thus, could not be held liable under estoppel [see the elements of proof of estoppel in t or for breach of fiduciary duty.
      
   2. 
      Further, because the plaintiff was not entitled to a life insurance benefit under the clear terms of the life insurance policy, there was no contractual basis to hold the life insurance company liable.
      
2. 
   Next, the court also granted the plaintiff’s motion for summary judgment on her estoppel claim, finding evidence of:
   
   1. 
      a knowing misrepresentation;
      
   2. 
      made in writing;
      
   3. 
      reasonable reliance on that representation; and
      
   4. 
      damages.
      
3. 
   The court surveyed the law in the Seventh Circuit and declined to require an “intent to deceive” as an essential element of an estoppel claim; a knowing misrepresentation sufficed, the court concluded.
   
4. 
   Concerning the employer’s argument that the plaintiff’s claim sought an improper modification of the plan, the court rejected it. Though the SPD may have advised employees that their coverage would terminate if not converted, it did not state who would be responsible for paying the premiums for the coverage. By assuring Wink that his employer would pay the premiums, the temporary administrator was not construing the plan; rather, “she was assuring him of [the employer’s] intent.”
   
5. 
   These plans involve strict duties and responsibilities, and the court held the employer liable for breach of fiduciary duty. It agreed that the temporary administrator was not an ERISA fiduciary. However, it concluded that her misrepresentation triggered fiduciary liability for the employer in its capacity as plan administrator because, among other things, the employer held the temporary employee out to participants as its representative for benefits purposes and failed to adequately train her on issues concerning the life insurance plan. [A trial court needs to bear in mind decisions of the appellate court in its jurisdiction, as well as United States Supreme Court decisions, so the trial court distinguished Seventh Circuit law refusing to hold fiduciaries liable for misrepresentations made by non-fiduciary agents on the grounds that, in those cases, the fiduciaries had satisfied their duties by distributing to participants clear and complete plan documents; but in Gustave A. Larson Company’s case it had distributed an SPD that did not clearly address who would be responsible for the life insurance premiums in question.
   
6. 
   Finally, though it did not find that the employer was liable for breach of fiduciary duty under ERISA, the court denied the plaintiff’s motion for summary judgment on her fiduciary breach claim:
   
   1. 
      It cited case law that limited relief for fiduciary breaches to “appropriate equitable relief,” and thus it was unclear what, if any, relief the plaintiff might be entitled to for such a breach, and it did not specify what the plaintiff’s remedy would be for her estoppel claim, i.e., because the life insurance benefit contract with the life insurance company had been terminated, compelling the employer to pay the premiums promised would not have resulted in the plaintiff receiving the $103,000.00 life insurance proceeds.
      

ERISA: ambiguous or misleading summary plan description (SPD), “surcharge”, “reformation”, trust or contract principles

this problem required consideration of whether to use trust or contract principles. In Skinner, the plaintiffs acknowledged that they had never relied on the ambiguity in the SPD, and therefore under contract law. When a party, or parties, makes such an admission, an appellate court may opt to consider that as admitted fact and fashion what it considers a just remedy, which allowed the 9^th Circuit to declined to address whether principles of either trust or contract should be analyzed. Instead, it analyzed using principles from both.

• 
  Under contract law, this is only appropriate when the contracting parties make a mutual mistake or there has been fraud.
  
• 
  Under trust law, reformation is only appropriate where the drafter of the trust makes a mistake in drafting the trust instrument and there is evidence of the drafter’s actual intent. Here, that would be the SPD.
  

The 9^th Circuit rejected the plaintiffs’ fraud allegation for two reasons:

• 
  there was no evidence that the employer acted with an intent to mislead anyone, and
  
• 
  the plaintiffs acknowledged that they had not relied on the ambiguity, and reliance is a necessary component of fraud.
  

It also found that there was no evidence that the Plan document was mistaken in any way, even though the SPD and the Plan document were potentially in conflict with each other:

• 
  It specifically rejected the argument that an error or ambiguity in the SPD could constitute evidence of the drafter’s true intent.
  
• 
  Though not expressly stated in its decision, its conclusion is consistent with the perspective that SPDs and Plan documents are drafted by different ERISA individuals, i.e.:
  
  • 
    the SPD is drafted by the Plan Administrator, and
    
  • 
    the Plan itself is drafted by the Plan Sponsor.
    

• 
  the fiduciary gains a benefit from its breach; and/or
  
• 
  the breach causes a loss of value or profits to the trust.
  

1. 
   Service Provider Fee Disclosure Rule
   
2. 
   Participant Fee Disclosure Rule
   

2d 770, 773-74 (E.D. Va. 2011). We reverse.

1. 
   severance benefits must be a "contractual entitlement" to provide the basis of an adverse employment action under Title VII; and
   
2. 
   because the offer of the severance package was made after she had been terminated, it could not constitute an adverse employment action.
   

That was reversed by the appellate court on both grounds:

1. 
   Hishon v. King & Spalding, 467 U.S. 69 (1984), precludes the argument that an employment benefit must be a contractual right in order for its denial to provide the basis for a Title VII claim, holding that any "benefit that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free under the employment contract simply not to provide the benefit at all." Benefits that an employer is under no obligation to furnish by any express or implied contract may qualify as a “privilege” of employment under Title VII, and may provide the basis for a Title VII claim, as long as the benefit is "part and parcel of the employment relationship." In her situation, in which she did not voluntarily ask for removal from her position, but was offered the severance in return for resignation and a release of claims, the severance was deemed to be the required “part and parcel” of the relationship.
   
2. 
   Next was the ruling that she did not suffer an adverse action because she was terminated before being denied the severance. It pointed to the language of Title VII protecting “any individual,” and again cited to Hishon (“A benefit need not accrue before a person’s employment is completed to be a term, condition, or privilege of that employment relationship") to support the fact that an employment benefit can constitute an adverse action, even if it related to a former employee. To limit actionable adverse employment actions to those taken while an individual is currently employed would be inconsistent with Title VII’s “principal goal” of "eliminat[ing] discrimination in employment."
   

Subpoena: EEOC, overbroad, irrelevant information, exceeding agency authority; "pattern and practice" discovery without a proper aggregation of claims.