Human resources & employment law cumulative case briefs
Download 5.55 Mb.
|
- Navigate this page:
- Controlling law: Kruchowski v. The Weyerhaeuser Company , No. 04-7118, 423 F.3d 1139 (10th Cir., 9/13/05); 2005 U.S. App. LEXIS 19722; 96 Fair Empl. Prac. Cas. (BNA) 914;
- Controlling law.
- Controlling law
- Note: This NM Supreme Court [NMSC] opinion supersedes the NM Court of Appeals [NMCA] opinion previously briefed.
Controlling Law. Trouble arises with adverse employment actions when performance evaluations conflict and may be inaccurate or a pretext for age discrimination. In this case, as with others like it, the employer’s motion for summary judgment was denied and the appellate court returned the case for jury trial. James Woods alleged age discrimination when his employer decided not to retain him after an unfavorable RIF evaluation. Significantly, a year and a half before that he had been very favorably evaluated. However, at the time of the RIF he had been unfavorably evaluated by the same supervisor. Younger employees were retained. Thus, there was a question of whether the recent unfavorable evaluation was a pretext to cover up age discrimination. There was also additional evidence that no employee in the target group over the age of 48 years had been retained. Woods v. The Boeing Co., No.07-3358, (10th Cir., 12/8/09); 2009 U.S. App. LEXIS 26717; 107 Fair Empl. Prac. Cas. (BNA) 1809; http://www.ca10.uscourts.gov/opinions/07/07-3358.pdf [enhanced lexis.com version]. For a similar controlling case in our jurisdiction, see Platero v. Baumer, No. 03-2167, 98 Fed. Appx. 819; 2004 U.S. App. LEXIS 10473 (10th Cir., 5/27/04); http://www.ca10.uscourts.gov/opinions/03/03-2167.pdf; http://ca10.washburnlaw.edu/cases/2004/05/03-2167.htm [enhanced lexis.com version]. FMLA: need misrepresented, sufficient honesty policy and proof; termination allowed Illustrative, not controlling law. An employee who met the requirements for FMLA leave was found to have misrepresented need for such leave because he actually was able to work. Note that this employer succeeded because (1) it was had a written honesty policy and (2) had valid evidence that his activities on FMLA leave were at least as demanding as his work duties. Weimer v. Honda of America Mfg. Inc. , No. 08-4548 (6th Cir., 12/14/09); 2009 U.S. App. LEXIS 27377; 2009 FED App. 0786N (6th Cir.); http://www.ca6.uscourts.gov/opinions.pdf/09a0786n-06.pdf [enhanced lexis.com version] James Weimer sustained a head injury while working for Honda on the assembly line. A coworker pulled down a hatchback, hitting Weimer across the top of his head. He was taken to an emergency room and the injury was described as minor. Reporting for work the next day, he requested FMLA leave, alleging he was suffering from nausea, headaches, and blurred vision. On the first day after that leave began he applied for a permit to have a porch built on his residence. His physician had prescribed leave based on the symptoms reported to him, and Weimer remained on leave for about a month. Georgetown, KY, is a town of about 40,000 (we’ve seen their homey ads on TV), and after returning to work the employer received an anonymous report that Weimer had built a porch and had been seen climbing a ladder and using power tools. Based on its investigation, Honda fired him for misrepresenting his condition in violation of its “Associate Standards of Conduct” that states it is a violation to “misrepresent facts or falsify records or reports such as personnel records, medical records, leaves of absence, documentation, inventory counts, quality control reports, etc.” Claiming a violation of FMLA, Weimer sued and lost because evidence showed he was actually able to work and had misrepresented his condition to his physician with subjective complaints of headaches and blurred vision. Evidence showed that the porch project activities were at least as strenuous as the demands of his job. Even though he may have made a prima facie case of entitlement to FMLA leave, Honda articulated a non-discriminatory reason for firing him, and he was unable to prove Honda’s reasons were not a pretext for firing him. Title VII: gender, retaliation, reprisal, evidence Illustrative; not controlling law. A female engineer accidentally discovered lewd material on her supervisor’s computer and reported that violation of company policy. Reprisal consisted of a remark by her supervisor that "you will never be promoted because of your complaints", which turned out to be the case. The trial court ruled that was direct evidence of discrimination. Further, the court ruled that the remark need not have been made by a decision-maker because it was made by someone who influenced decisions about promotion. Kogucki v. Metropolitan Water Reclamation Dist of Greater Chicago, No. 08 C 0983 (3/17/10); no additional citation information available as of 3/23/10, [enhanced lexis.com version]. Title VII: gender, retaliation, reprisal, evidence; adverse employment action, Burlington Northern & Santa Fe Railway v White, denial of telecommuting status Illustrative; not controlling law. The question of what constitutes an adverse employment action under the United States Supreme Court case of Burlington Northern & Santa Fe Railway v. White, 548 U.S. 53 (2006); 129 S. Ct. 1870; 173 L. Ed. 2d 812; 2009 U.S. LEXIS 3306; 68 ERC (BNA) 1161; 21 Fla. L. Weekly Fed. S. 839, continues to be dealt with by lower courts. A female health education specialist alleged reprisal after complaining about sexual harassment by a staff doctor and subsequently being denied continuation of her telecommuting status. The Burlington case held the standard of proof was “whether that a reasonable employee would have found the challenged action materially adverse such that it would dissuade a reasonable worker from making a charge of discrimination.” In the current case the specialist had been working at home, which was denied to her after reporting sexual harassment. The court found she presented the following evidence of possible discrimination:
Thus, summary judgment was ruled to be inappropriate because there were genuine issues of fact to be presented to a jury as to whether (1) the workplace restriction was an adverse employment action and (2) was that denial sufficient evidence of causation and pretext? Yeager v. UPMC Horizon, (WD.Pa., 3/17/10) ); no additional citation information available as of 3/23/10. FMLA: evidence, material fact issue, “serious health condition”, “continuing treatment by a health care provider”, incomplete medical evidence; use of combined evidence from medical expert and lay witness Illustrative; not controlling law. This case alerts employers to consult competent legal counsel about what kind of proof applies in our jurisdiction, because the standard of proof is mixed among the various federal trial and appellate courts:
In this case the 3rd Circuit adopted the approach used by the Eighth Circuit. Its reasoning was that FMLA regulation defining “continuing treatment by a health care provider” does not address the issue of whether medical evidence is required, and thus it rejected a categorical exclusion of lay testimony. Note that the court also rejected the position that lay testimony alone could suffice because it would place too heavy of a burden on employers to determine what how to handle such a situation. Thus, in a situation in which medical testimony established that the employee was unable to work for part of the three-day period, lay testimony could be used to raise a question of material fact as to whether the employee remained unable to work for the balance of that period. Schaar v. Lehigh Valley Health Servs., Inc., et al., 09-1635 (3rd Cir., 3/11/10); 2010 U.S. App. LEXIS 5172; 2010 WL 825257; http://www.ca3.uscourts.gov/opinarch/091635p.pdf [enhanced lexis.com version]. OWBPA: invalidated release barred challenges to its validity Controlling law: Kruchowski v. The Weyerhaeuser Company, No. 04-7118, 423 F.3d 1139 (10th Cir., 9/13/05); 2005 U.S. App. LEXIS 19722; 96 Fair Empl. Prac. Cas. (BNA) 914; http://www.ca10.uscourts.gov/opinions/04/04-7118.pdf is the law in our jurisdiction [enhanced lexis.com version]. However, the current case that triggered this brief is a federal district trial court case from Pennsylvania. It’s been a while since one of these cases has been briefed, so this is a good reminder that the Older Workers Benefits Protection Act has strict requirements that must be complied with in order for a release or waiver of liability to be effective:
The discharged Pennsylvania employee, Bogacz, signed a separation agreement and release of claims in exchange for a salary continuation and other benefits. The federal district trial court ruled that he could still proceed with his ADEA claims because the release at issue was invalid under the Older Worker Benefits Protection Act (OWBPA). The trial judge reasoned that a waiver is invalid if it contains provisions that could reasonably be interpreted to prohibit challenges to the validity of the waiver. If so, such a waiver does not meet the OWBPA requirement that it be written in a manner calculated to be understood by the individual employee. After reviewing the language of the statute and the relevant regulations and legislative history, the court rejected the employer's argument that only the offending provision of the release should be stricken rather than the whole agreement. The judge also dismissed the employer's contention that state law should allow an exception where an employee signs a waiver with an understanding that it is invalid; federal law overrides state law in OWBPA cases because an employer must comply with all eight OWBPA requirements regardless of the employee's subjective knowledge. Bogacz v. MTD Products, Inc., No. 2:2008cv01654 (W.D.Pa., 3/9/10). USERRA: evidence, McDonnell Douglas test, prima facie case, a motivating factor, military service was only one factor, adverse employment action, inferring discrimination, disparate treatment, timing. Inconsistency between reason and actions, decision-maker’s hostility, legitimate business reason, pretext, performance problems, business-related criteria, independent investigation, documentation Illustrative; not controlling law. This case well illustrates the importance of doing things right, plus having the documentation to prove that, and it provides a good review of many aspects of anti-discrimination law. In discrimination cases it is important to prove that an adverse employment taken against an employee was for problems related to a legitimate business reason rather than for a reason relating to status in a protected class, i.e., the employee wasn’t performing the essential functions of the job and/or wasn’t meeting reasonable standards of performance. The two major factors in this case were:
Evidence presentation was governed by the McDonnell Douglas test: 1. An employee must make a threshold [prima facie] showing of discrimination. 2. Next, the employer must show a legitimate, nondiscriminatory reason for taking the action it did. 3. Finally, the burden shifts back to the employee to show that the employer's stated reason was a pretext for discrimination. The appellate court reversed the decision of the trial court using the following considerations, tests of evidence, etc.:
In this case the appellate court found that the motivating factor of the adverse employment action was based on the results of the investigation that found deficiencies, not discriminatory motivation based on military service. Dees v. Hyundai Motor Manufacturing Alabama, LLC, No. 09-12107 (11th Cir., 2/26/10); 2010 U.S. App. LEXIS 4064; http://www.ca11.uscourts.gov/unpub/ops/200912107.pdf [enhanced lexis.com version]. Title VII: Section 1981, intentional racial discrimination, contractual rights, adverse employment action, suspension during investigation, express language of no contractual relationship Illustrative: not controlling law. Section 1981 was passed soon after the Civil War, and briefly, it provides: 42 U.S.C. § 1981, Civil Rights Act Of 1866:
The 11th U.S. Circuit Court of Appeal dismissed the claims of a physician who alleged that the suspension of his medical staff privileges violated rights protected by Section 1981, holding that such privileges did not constitute contractual rights as defined by the statute because:
Result, no claim was stated upon which a claim for relief could be based because he had no contractual rights, as required by Section 1981. Further, and the employee was found to have failed to meet required standards of performance. Jimenez v. Wellstar Health System, No. 09-10917 (11th Cir., 2/18/10); 2010 U.S. App. LEXIS 3187; 108 Fair Empl. Prac. Cas. (BNA) 790; http://www.ca11.uscourts.gov/opinions/ops/200910917.pdf [enhanced lexis.com version]. ADEA, EEOC: evidence, disparate treatment, direct discrimination, mixed motives, “reasonable factor(s) other than age” (RFOA), burden of going forward, burden of proof, no shifting Caution. Be aware that this case briefed below on an earlier date, Gross v. FBL Fin. Servs., Inc., No. 08-441, ____ U.S. ____, 6/19/09); 2009 U.S. LEXIS 4535 [enhanced lexis.com version], and others like it may have not stated ADEA factors completely for future cases because in February 2010 the EEOC issued proposed regulations on the definition of “reasonable factor(s) other than age” (RFOA): http://edocket.access.gpo.gov/2010/2010-3126.htm . HIPAA: wellness incentive programs, possible discrimination, regulations checklist Controlling law. Employer programs to encourage healthy behavior are generally a good practice. However, the Health Insurance Portability and Accountability Act has some protections against discrimination employers need to be aware of, so you may want to check this Department of Labor resource either before implementing such a program or to determine if your existing one is in compliance: http://www.dol.gov/ebsa/faqs/faq_hipaa_ND.html. FMLA: Department of Labor (DoL) difficulties with the new leave regulations and posters for military related leave [As of 2/17/10] Check this online article to learn about difficulties the DoL seems to be having with its regulations and mandatory posters that may neither be up to date nor accurately track the statutory amendments that went into effect in January 2009 and thus may cause an employer to deny leave or benefits to qualified persons. http://www.constangy.com/communications-268.html. NRLB: discrimination against non-participating member, union coercion of employer Controlling law? Well, yes, at least for now. The NLRB has only two of its three members seated and deciding cases, which raises the question of whether the NLRB can act with only two members. Decisions are split among the various appellate circuits, but most circuits have reasoned that two out of three members would be a quorum, and if two of the members agree on a decision, then as a practical matter the decision is as binding as if three has heard the case and two had voted. This issue is on appeal to the United States Supreme Court awaiting decision. Concerning the union issue decided, the case involved the merger of members of two unions that had represented different divisions of a company. The consolidation was handled by an agreement to use one of the union contracts for the resulting single unit. Seniority rights were determined by the length of service in the respective former units. Kirk Rammage had been a sales representative in one of the divisions, but he had never been represented by a union, so there was a problem with how to handle his seniority. The union argued that he ought to be placed at the bottom of the seniority list. However, that bump downward forced him into a position that had a 150 mile daily commute. Rammage filed a discrimination complaint with the NLRB. An important factor of proof in his case was that a supervisor commented that he’d have to join the union even though the collective bargaining agreement did not require union membership. The NLRA specifically protects the right of workers not to participate in union activities by prohibiting unions from “caus[ing] or attempt[ing] to cause an employer to discriminate against an employee in a manner either encouraging or discouraging participation or membership in a union. The NLRB ruled in favor of Rammage, and the Tenth Circuit Court of Appeals affirmed that decision. Teamsters Local 525 v. NLRB, Nos. 08-9568, 08-9577, 590 F.3d 849 (1oth Cir, 12/22/09); 2009 U.S. App. LEXIS 28181; 187 L.R.R.M. 2801; 158 Lab. Cas. (CCH) P10,142; http://www.ck10.uscourts.gov/opinions/08/08-9568.pdf [enhanced lexis.com version]. Unions: fiduciary duty of union to members and non-members (third-party beneficiaries) to represent adequately; duty to perform adequately when representation undertaken; exhaustion of administrative remedies; Public Employees Bargaining Act; which parties can properly be joined; Rule 12(B)(6) This case is still appearing in HR&EL newsletters, so here again is the previous brief in order to remind us of the final decision in the case. Also, it is still timely because it tracks the duty of fair representation stated in the Rammage case directly above. Note: This NM Supreme Court [NMSC] opinion supersedes the NM Court of Appeals [NMCA] opinion previously briefed. Callahan v. New Mexico Federation of Teachers-TVI, 2006-NMSC-010 This is the factual basis of the matter stated by the NMSC: This case examines the scope of a public employee union's liability to its members for alleged inadequate representation during a grievance proceeding. Plaintiffs, who were members of the New Mexico Federation of Teachers-TVI, Albuquerque TVI Faculty Federation Local No. 4974 AFT, NMFT, and the American Federation of Teachers ("Union Defendants"), were fired from their jobs as full-time teachers at Albuquerque Technical Vocational Institute ("TVI"). Plaintiffs requested Union Defendants to represent them in a grievance against TVI seeking reinstatement and back pay through the procedures established in the Collective Bargaining Agreement between Union Defendants and TVI. However, after obtaining a favorable arbitration decision concluding that Plaintiffs could file a grievance challenging their terminations, Union Defendants allegedly negotiated a settlement with TVI without consulting Plaintiffs, effectively waiving Plaintiffs' grievance. Plaintiffs then filed a lawsuit in the district court against Union Defendants, asserting: 1) breach of the duty of fair representation, based on a negligence standard; 2) breach of the collective bargaining agreement of which Plaintiffs were third-party beneficiaries; 3) breach of the covenant of good faith and fair dealing implied in the collective bargaining agreement; and 4) breach of a fiduciary duty. The district court dismissed Plaintiffs' complaint under Rule 1-012(B)(6) NMRA 2006, concluding that Plaintiffs did not state a cause of action against Union Defendants. appeal had been made to the NMCA, and it was accepted by the NMSC, which ruled as follows [reformatted for readability]: We granted certiorari to consider three issues. One, what is the scope of a public employee union’s liability to a member for alleged failure or refusal to adequately represent the employee in a grievance proceeding? Two, whether public employees who seek compensatory damages from their union for inadequate representation during a grievance proceeding must file their complaint against the union with a Labor Relations Board as a prohibited practice in order to exhaust administrative remedies. Three, whether under the facts as pled the international union may be joined as a party defendant. We hold that under the facts pled by Plaintiffs, the only cause of action that may survive a 12(B)(6) motion is the cause of action for breach of the duty of fair representation based only on a showing that the union acted arbitrarily, fraudulently or in bad faith. Plaintiffs were not required to file their complaint with the TVI Labor Relations Board in order to exhaust administrative remedies since their cause of action against Union Defendants is not a prohibited practice under PEBA I. Finally, because Plaintiffs pled that AFT does business in New Mexico as an exclusive bargaining agent for Plaintiffs under the Collective Bargaining Agreement, Plaintiffs’ complaint survives a 12(B)(6) motion. Accordingly, the Court of Appeals is reversed in part, affirmed in part, and this matter is remanded to the district court for proceedings consistent with this opinion. National Labor Relations Board (NLRB): union, dues, unlawful inducement of termination; substantial evidence Download 5.55 Mb. Share with your friends:
|