Human Resources & Employment Law Cumulative Case Briefs and Notes Robert a Martin at (1) - Документ

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HUMAN RESOURCES & EMPLOYMENT LAW
CUMULATIVE CASE BRIEFS AND NOTES
Robert A. Martin, J.D.
ramelcc@
Updated on June 30, 2011
I regularly check human resources and employment law resources for cases to brief and
share with NM professionals. If possible, an Internet address (URL) is provided so that you
can read the details of a complicated case in the actual decision. The map shows the states
included in the jurisdiction of the Tenth Circuit court of Appeals.
An updated collection has recent materials added on top of previous materials and is
complete in and of itself, so older versions should be discarded. Updates are usually made
weekly and then distributed.
Don't print it because it is very large and is meant to be searched electronically on a

computer, such as with Ctrl+F or specific search software (such as Folio Views or
DTSearch) to locate keywords or combinations of keywords.
Note: This is a non-for-profit activity. These materials are not statements of the law, so
rely only on the actual opinion (or similar original source) for the law. No
representations are made or intended, nor should any be implied, as to the
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2/9/23, 10:38 AM Human resources & employment law cumulative case briefs and notes robert a martin @ (1) - Документ
completeness or accuracy of these materials. No legal opinions are either expressly or

impliedly given.
Recommended additional resources to check out:
- M. Lee Smith: /
- Employment Law Information Network: /
- Society for Human Resource Management: /
- Human Resources Management Association of New Mexico: /
Finally, if you have any questions, please feel free to contact me.
NMHRA: New Mexico Human Rights Act, employment discrimination, sex discrimination, continuing
violation, statute of limitations [new law], retaliatory discharge, termination of employment; jury
verdict, appeal, substantial or sufficient evidence, standard of review
Controlling law. This is a case to read for new law based on expansion adoption of past persuasive
reasoning and a logical extension of it. Charles v. The Regents Of New Mexico State University,
2011-NMCA-057, certiorari denied; 2010 N.M. App. LEXIS 133, 110 Fair Empl. Prac. Cas. (BNA)
1252; can be located and retrieved at /nmcases/NMCACurrent.aspx.
1. Summary by the Court of Appeals:
{1} Defendant, New Mexico State University (NMSU), appeals from a jury verdict awarding Plaintiff
Wendy Charles $124,653.93 on her claims of retaliation and constructive discharge. On appeal, we
address Defendant’s arguments that (1) the statute of limitations provided in the New Mexico Human
Rights Act (NMHRA), NMSA 1978, §§ 28-1-1 to -14 (1969, as amended through 2007), bars acts
outside the limitations period from being considered, and (2) there is insufficient evidence, as a matter
of law, to support the jury’s verdict. We hold that Plaintiff’s retaliation claim can be considered under
the continuing violation doctrine, allowing facts and evidence prior to the NMHRA statute of limitations
cut-off to be considered. We further hold that there is sufficient evidence to support the jury’s
determination that a constructive discharge occurred. Accordingly, we affirm.
2. Brief factual background:
Harassing incidents included attempted blouse peeking by her boss, her prevention efforts,
and his inappropriate comments about her efforts
Hostile work environment incidents included sarcastic comments about her abilities and the
amount of work she did, slamming or hitting tables or equipment in her presence, and refusing
to give her receipts or promptly return her credit card when he purchased items using the
university credit card issued in her name, some of which occurred in front of students.
Complaints to appropriate authorities were only weakly responded to by them.
3. Retaliation:
The applicable law is:
{8} The NMHRA provides that it is an unlawful discriminatory practice for any person or employer to
“engage in any form of threats, reprisal or discrimination against any person who has opposed any
unlawful discriminatory practice or has filed a complaint, testified or participated in any proceeding
under the [NMHRA].” Section 28-1-7(I)(2). In order to establish a claim of retaliation under the
NMHRA, a plaintiff must demonstrate that “(1) she engaged in protected activity; (2) she suffered an
adverse employment action; and (3) there is a causal connection between these two events.” Ocana
v. Am. Furniture Co., 2004-NMSC-018, ¶ 33, 135 N.M. 539, 91 P.3d 58. “An adverse employment
action occurs when an employer imposes a tangible, significant, harmful change in the conditions of
employment.” Ulibarri v. State of N.M. Corr. Acad., 2006-NMSC- 009, ¶ 16, 139 N.M. 193, 131 P.3d
43. Plaintiff claims that the adverse employment action she suffered was a constructive discharge.
1. Statute of limitations:
Clarification of terminology is import at this point because the Court of Appeals uses the term
“discrete” in a technical, legal sense not to be confused with discrete and indiscrete in the sense of
boorish behavior. On that basis:
{11} “[T]he continuing violation doctrine [is] an equitable doctrine permitting a plaintiff to bring an
otherwise untimely claim.” Id. ¶ 9. The continuing violation doctrine distinguishes between “[d]iscrete
acts such as termination, failure to promote, denial of transfer, or refusal to hire[, which] are easy to
identify,” and hostile environment cases. * * *
Read the case for details of the reasoning for expanding past definitions in NM employment
discrimination under the facts of this case, which must have satisfied the NM Supreme Court because
it denied certiorari, which effectively approves of this expansion.
{13} We must therefore consider whether Plaintiff’s retaliation claim is based on a discrete act or on a
cumulative series of acts. See id. ¶ 11. “The NMHRA makes it unlawful for any person or employer to
retaliate against any person who has opposed any unlawful discriminatory practice.” Ocana, 2004-
NMSC-018, ¶ 35 (internal quotation marks and citation omitted); Section 28-1-7(I)(2). Retaliation can
include threats, reprisals, or discrimination. See Gonzales, 2000-NMSC-029, ¶ 19. In this case,
Plaintiff asserts that she complained several times, and after each complaint, she experienced
retaliation from Reyes, Thompson, and Mount. According to Plaintiff, the retaliation took the form of
harassment, threatening behavior discrimination, and reprisals. Plaintiff’s claim of retaliation is,
therefore, based on a cumulative series of acts, not a “discrete discriminatory act.” Contra Ulibarri,
2006-NMSC-009, ¶ 11. Consequently, we agree with Plaintiff that all of the conduct that occurred
during her employment could have been considered by the jury for her claim, pursuant to the
continuing violation doctrine.
2. Sufficiency of evidence:
{15} Our standard of review in assessing whether the verdict of the jury is supported by the evidence
is well settled: In reviewing a sufficiency of the evidence claim, this Court views the evidence in a light
most favorable to the prevailing party and disregard[s] any inferences and evidence to the contrary.
We defer to the jury’s determination regarding the credibility of witnesses and the reconciliation of
inconsistent or contradictory evidence. We simply review the evidence to determine whether there is
evidence that a reasonable mind would find adequate to support a conclusion. * * *
Based on this, the Court of Appeals found sufficient evidence to affirm the trial court verdict.
ADA: privacy: medical information voluntarily disclosed, HIV, ADA confidentiality provision
inapplicable, mere potential ADA discrimination based on that information is insufficient, employer not
liable,
Controlling law. A truck driver voluntarily told is employer that he is HIV-positive, and that disclosure
was outside of the context of inquiry or a medical examination after conditional offer of employment
and the employer did not prompt disclosure in any way –the driver disclosed it because he believed
another driver had already told the employer. The ADA permits medical examinations and inquiries
under certain circumstances, but our 10th Circuit Court of Appeals said that though the ADA requires
employers to treat such information as “confidential medical record”, the plain language of the ADA
does not extend that confidentiality to information it obtains or receives by any other means. EEOC v.
C.R. England, Inc., No. 09-4207 and No. 09-4217 (10th Cir., 5/3/11); 2011 U.S. App. LEXIS 8971; 14
Accom. Disabilities Dec. (CCH) P14-197; 24 Am. Disabilities Cas. (BNA) 897;
courts.gov/opinions/09/09-4207.pdf.
[Note of caution: This case limited its ruling to the ADA, so it should not be construed as generally
authorizing disclosure of sensitive medical information.]
Summary Judgment: no exception or lower burden of proof for discrimination cases
Illustrative; not controlling law: Now it is clear in the 8th Circuit Court of Appeals that there is no
“discrimination case exception” to the federal court trial standard for granting summary judgment. This
seems to be well considered reasoning that could persuasive authority in other federal appellate
circuits, such ours, which is the 10th. Torgerson & Mundell v. City of Rochester, No. 09-1131 (8th Cir.,
6/1/11); 2011 U.S. App. LEXIS 10938; 112 Fair Empl. Prac. Cas. (BNA) 613;
courts.gov/opndir/11/06/091131P.pdf.
This is a case primarily of interest to litigators, who ought to read this case in its entirety. However, to
review for those who are not litigators and familiar with the federal summary judgment rule, a party for
summary judgment must show that there is no genuine issue as to any material fact and that it is
entitled to judgment as a matter of law. Essentially, this means no trial to a jury. That’s why the phrase
“no genuine issue as to any material fact” is based on the standard of proof that no reasonable jury
would disagree about the facts, i.e., there wouldn’t be anything for them to decide, so the trial judge
could then dismiss the case as a matter of law because no issues of fact remained.
With that in mind, here is the history and background from which this particular case arose:
There are some federal appellate opinions indicating that summary judgment in employment
discrimination cases should “seldom or sparingly be granted,” or ought not to be granted in
“very close” cases, or granted “only with caution” or after being “particularly deferential” to the
party that had not moved for summary judgment. These types of indications usually came
from panels of three judges (three judge panels are the typical groupings for hearing federal
appeals cases), rather than from an “en banc” (all of the circuit appellate judges sitting on
case and deciding it as a majority of the entire court, which is a stronger statement of the law
at issue.
This 8th Circuit Court of Appeals strongly rejected the plaintiffs’ argument for a special
standard of proof for employment discrimination cases and the panel opinions on which they
relied, saying such statements were “contrary to Supreme Court precedent,” “unauthorized,”
and should not be followed. It emphasized that there is “no discrimination case exception” to
the application of summary judgment. It went on to state that summary judgment remains a
useful pretrial tool for determining “whether any case, including one alleging discrimination,
merits a trial.”
So, in the 8th Circuit nobody gets special treatment for summary judgment, one way or the other, just
because it is an employment anti-discrimination case - and that may well be the case in any other
federal circuit if this case is found to be persuasive authority elsewhere.
ERISA: actions allowed against third-party insurers, which parties may be sued under 29 U.S.C. §
1132(a)(1)(B)as defendants in actions for benefits
Illustrative; not controlling law. It is uncertain if this case will be persuasive authority beyond the
jurisdiction of the 9th Circuit Court of Appeals, but it is an interesting benefits case to be aware of.
Essentially, the status of an entity in that jurisdiction as a proper defendant is determined by the level
of responsibility the entity assumes in approving and denying employee benefits rather than its
designation as a plan or plan administrator. This means that companies having authority to accept or
reject benefits claims should ensure that all its decisions comply with ERISA's requirements,
regardless of whether they are identified as the plan administrator. Cyr v. Reliance Standard Life
Insurance Company, No. 07-56869, No. 08-55234 (9th Cir., 6/22/11); 2011 U.S. App. LEXIS 12601;
courts.gov/datastore/opinions/2011/06/22/07-56869.pdf.
Class Action: Federal Rules of Civil Procedure, Rule 23, certification of class action status denied;
Wal-Mart
Controlling law. Class actions are those in which there are many plaintiffs whose individual lawsuits
involve common issues of law and fact. For example, a pattern of widespread overcharging of
consumers by a company for long distance surcharge service fees. However, when facts in individual
cases might vary significantly, even though the legal issues may be the same, then often class action
status will be denied. That seems to be the situation in this case. Essentially, the finding of the United
States Supreme Court was that the approximately million and a half female employees in different
jobs at 3,400 different stores nationwide and with different supervisors do not have enough in
common to be lumped together in a single class-action lawsuit. Wal-Mart Stores Inc v. Betty Dukes,
No. 10-277, ____ U.S. ____ (6/20/11); waiting for alternative citations;
premecourt.gov/opinions/10pdf/10-277.pdf.
[Note: This decision did not decide the issue of whether Wal-Mart discriminated against the women.
Rather, it decided the procedural issue of whether it was appropriate to proceed as a class action with
a class of this size and possible variety of factual issues. It still may be quite possible for limited class
actions, such as regional or state breadth, etc. Also, damages would have been difficult to determine
in a huge class action case such as this.]
EEOC: broad scope of investigative request limited, “fishing expedition” not allowed
Illustrative; not controlling law. This federal district trial court decision is primarily of interest to
litigators. The case limited the overly broad scope of the EEOC’s investigative request. EEOC v.
UPMC, No. 11-MC-121 (W.D. Penn., 5/24/11). Compare this case with EEOC v. Konica Minolta
Business Solutions U.S.A., Inc., No. 10-1239, 639 F.3d 366 (7th Cir., 4/29/11); 2011 U.S. App. LEXIS
8894; 112 Fair Empl. Prac. Cas. (BNA) 97; 94 Empl. Prac. Dec. (CCH) P44,166.
Courts want investigations and discovery requests to stick to the point of the issues, and they usually
rule against what the case call “fishing expeditions” that would be snooping around for matters
outside of the specific controversy. Now do remember that wage claims and a few other
investigations may not be held to such a narrow scope of inquiry.
UPMC: The Heritage Shadyside terminated the employment of Carol Gailey on 6/22/08, on the
grounds that she had exceeded her maximum amount of available leave of absence. That entity is
wholly owned by UPMC Senior Communities, Inc.,, which is in turn wholly owned by UMPC. Heritage
employs 170 people, UMPC employs 48,000. Gailey filed a disability discrimination charge with
EEOC, to which Heritage responded with a position statement attaching several UPMC policies,
including the leave of absence policy that was the basis for firing Gailey. EEOC then requested
UPMC, rather than Heritage, for the identities of employees at "all facilities in the Pittsburgh region"
who had been terminated pursuant to the UPMC leave and disability policies for the period July 1,
2008 "to the present." UPMC objected to the scope of the EEOC's request and the EEOC issued a
subpoena for this information. UMPC refused and EEOC filed an application with the federal district
court for the Western District of Pennsylvania for enforcement of a subpoena seeking the identity of
these employees.
In an opinion issued on May 24, 2011, the district trial court refused to enforce the subpoena:
One consideration was that if a request is onerous [such as covering an entity of 48,000
employees rather than only 170] is that the requested information "might cast light" on the
charge allegations. The court noted that the EEOC failed to satisfactorily explain how the
information requested in the Subpoena would "cast light" on Gailey's claim since the
subpoena did not even cover the time period of her employment.
More importantly, the court concluded that the EEOC's subpoena to UPMC was "an improper
fishing expedition that seeks information that is not relevant to the underlying charge. It held
that the EEOC had done "almost nothing" to determine the specific facts relating to the
underlying charge and that it should have done so before "launching an inquiry into a
tangential alleged systemic violation."
Konica: In this case the EEOC contended that obtaining minority hiring data might cast some light on
the alleged discriminatory treatment of the charging party, whereas in UPMC, the EEOC offered no
pretense that its target has shifted away from the individual charge before it.
WARN: Worker Adjustment and Retraining Notification Act, interpretation of “workforce reduction”, Act
inapplicable to laying off replacement workers after strike settlement and return of workers
Illustrative; not controlling law. The WARN Act does not define “workforce reduction” under the
circumstance of a large layoff when the laid-off workers have been a replaced. Fortunately, there was
persuasive authority from some other federal courts, and relying on their interpretation of the Act the
8th Circuit Court of Appeals found that 111 replacement workers were not entitled to a 60-day mass
layoff notice prior to their firings because their employment was terminated to allow employees
previously employed to return from strike. Sanders v. Kohler Co., No. 10-1848 (8th Cir., 6/8/11) ; 2011
U.S. App. LEXIS 11562; enter the case number at this location: courts.gov/opns/opFrame.html.
Attorney fees: frivolous claim, defendant my collect unless it would have had to incur the fees
anyway, may be awarded to defendant if claim proves to be frivolous. “but-for” test
Controlling law. Attorney fees may be awarded to a successful defendant in a federal civil rights
case if a court determines that the plaintiff’s claims are frivolous. The Supreme Court’s rule is what is
called a “but-for” test for assessing fees against plaintiffs: a defendant is allowed “to receive only the
portion of his fees that he would not have paid but for the frivolous claim.” This case involved an
allegation of violation civil rights under 42 U.S.C. § 1983, plus states law claims, including
defamation. Thus, the courts had to separate out efforts involving fees (attorney work) and costs
(filing fees, witness fees, service of process, copying, etc.).
Fox v. Vice, No. 10-114, ____ U.S. ____ (6/6/11): waiting for additional alternate citations;
not controlling law. Seldom do I comment directly about a case, but at the risk of using technical
jargon, “Go figure!” It is recommended that attorneys read this case and decide how to handle the
situation when the issue arises. Toussaint v. JJ Weiser, Inc., No. 09-3797-cv (2nd Cir., 6/6/11); 2011
U.S. App. LEXIS 11410; 2001 WL 2175987; courts.gov/decisions/isysquery/0ddf3931-687d-4667-
9065-1040d1e5f8e9/10/doc/09-3797_opn.pdf#xml=courts.gov/decisions/isysquery/0ddf3931-687d-
4667-9065-1040d1e5f8e9/10/hilite/.
Title VII: hostile work environment, prompt remedial action, prompt and appropriate corrective action;
failure of employee to adequately report misconduct, claim denied
Illustrative; not controlling law. We learned at the time of the Ellerth/Faragher decisions and thereafter
that when an employer has written published anti-harassment policies and has trained in its anti-
discrimination efforts, failure of an employee to report harassment can result in denial of that worker’s
claim. When it comes to discrimination, everyone has rights and responsibilities - the social policy of
the anti-discrimination laws is to provide a workplace free of illegal discrimination, and failure to report
thwarts the efforts of the employer to do that.
Wilson v. Moulison North Corp., No. 10-1387, 1st Cir., 3//21/11); 639 F.3d 1; 2011 U.S. App. LEXIS
5696; 111 Fair Empl. Prac. Cas. (BNA) 1451; 94 Empl. Prac. Dec. (CCH) P44,128; courts.gov/cgi-
bin/getopn.pl?OPINION=10-1387P.01A.
In this appellate case, the ruling was that an employer should not be liable for fostering a racially
hostile work environment in violation of Title VII of the Civil Rights Act because:
1. the company promptly disciplined the workers for their initial misconduct and
2. the employee did not adequately report the alleged resumption of the harassment.
Thus, his failure to put the company on notice of the renewed harassment was "fatal to his claim of
employer liability."
Briefly, Arthur Ray Wilson, an African-American, was hired by Moulison North Corporation (MNC) on
May 22, 2006. Based in Maine, MNC is an electrical utility contractor specializing in installation and
repair of large lighting systems. Soon after he was hired white coworkers began making derogatory
racist remarks to him when their supervisor was not present. A lead worker overhead comments and
told them to stop that misconduct. The misconduct continued. Wilson called and complained to
company owner, Ken Moulison, who visited the worksite the next day and spoke to the offending
employees (they did not deny the allegations). They were warned by the owner that any further
incidents of harassment would result in their immediate termination. Moulison also apologized to
Wilson for their behavior and told Wilson to immediately report any further problems to him. Despite
the warnings, the harassment allegedly continued, but Wilson did not complain to Moulison when he
visited the jobsite.
Company anti-harassment policy directed employees to report harassment either to a "supervisor or

to Ken Moulison." Additionally, it also stated, "Disciplinary measures may include oral or written
warnings, suspension or termination depending on the severity of the offense."
For all of the various details, it is recommended that you should read the case in its entirety for all of
the arguments, counter arguments and specific reason of the appellate court in ruling that the
company had adequate policies for reporting, took appropriate prompt remedial action, and that the
employee waived his rights by failing to report the continuing harassment violations.
Medical Marijuana: Washington state court decision article by the law firm of Fisher and Phillips.
Illustrative; not controlling law:
Washington Employers Claim Victory In Medical Marijuana Battle
Date: 6/13/2011
On June 9, 2011, the Washington Supreme Court handed employers a comprehensive victory in the
long-running medical marijuana battle, deciding that employers need not accommodate an
employee's use of medical marijuana, and that employees terminated for medical marijuana use –
even offsite use – have no basis to sue their employers. Roe v. TeleTech Customer Care Mgmt.
The decision now means that employers can rest comfortably knowing they can consistently enforce
their zero tolerance drug policies without regard to medical marijuana registry status.
/shownews.aspx?Washington-Employers-Claim-Victory-In-Medical-Marijuana-
Battle&Ref=list&Type=1122&Show=14158
Essentially, if an employee using or is impaired in violation of company substance abuse policy, then
no accommodation is required, prescription or not.
FLSA: “willful” violations distinguished form “lack of good faith”, standard of proof
Illustrative; not controlling law – but a valuable distinction to be studied by litigators. As noted in
earlier cases in this collection, if FSLA violations are found to be willful, then that can make a
difference in the applicable statute of limitations and the amount of damages that can be awarded
[See the Mumby case previously below]. The case briefed now explains the difference between willful
violations of the FLSA and lack of good faith in complying with the Act, such as when classifying who
is or is not an exempt employee. The 5th Circuit Court of Appeals reversed the district court’s ruling
that an employer's misclassification of several different groups of employees and trainees had been
willful because it held that the plaintiff failed to prove willfulness, i.e., . . . the district court conflated
the willfullness analysis with the 'lack of good faith" analysis explained in detail in the full opinion.
Because the detailed discussion by the 5th Circuit Court of Appeals is complex and of interest
primarily to litigators, it is not briefed here. Rather, litigators should to read and study the full case:
Stokes v. BWXT Pantex LLC, No. 10-10470 (5th Cir., 5/4/11, unpublished); 2011 U.S. App. LEXIS
9355; 17 Wage & Hour Cas. 2d (BNA) 1035; /xmlResult.aspx?
xmldoc=In%20FCO%2020110504123.xml&docbase=CSLWAR3-2007-CURR.
Immigration: Arizona’s business licensing law, constitutionality; 2007 AZ law - not its 2010 law
Controlling law. It is very important to be aware that there is a significant difference between
Arizona’s 2007 E-Verify Law and Penalty Provisions for Employing Unauthorized Workers and
Arizona’s 2010 "Support Our Law Enforcement and Safe Neighborhoods Act”, also known as SB
1070. This decision deals only with the 2007 Arizona law; the 2010 law is still being litigated.
Chamber of Commerce of the U.S. vs. Whiting, ____ U.S. ____ (5/26/11); waiting for alternative
citations; premecourt.gov/opinions/10pdf/09-115.pdf.
Here are the differences:

The 2007 act requires all employers to use E-Verify for all new hires and permits the
revocation of a company's business license as a penalty for employing unauthorized workers.
This decision resulted from a challenge to the Legal Arizona Workers Act of 2007. Remember
this is a law applying to business licensing for state authorization to conduct business, and
only a few states have such licensing laws [Note: We may well now expect other states to
pass such laws].
The 2010 act, also known as Arizona SB 1070, adds provisions in addition to federal
immigration law:
Federal: requires certain aliens to register with the U.S. government and to have
registration documents in their possession at all times).
Arizona adds:
state misdemeanor crime for an alien to be in Arizona without carrying the

required documents,
bars state or local officials or agencies from restricting enforcement of federal

immigration laws, and
prohibits sheltering, hiring and transporting illegal aliens (intended to carry out a
policy of "attrition through enforcement" policy.
Description of the 2007 act:
Defines a license to include any agency permit, certificate, approval, registration, charter, or
similar form of authorization, foundational documents, articles of incorporation, and certificates
of partnership.
Prohibits Arizona employers from knowingly or intentionally employing individuals

unauthorized to work in the U.S.
Any person may submit a complaint alleging that an employer employs unauthorized workers.
Once the complaint is investigated and determined not to be false, the state will initiate legal
action against the employer.
During the court proceeding, the state is limited to the federal government's determination of
the employee's lawful status.
If the employer is found to have knowingly or intentionally hired a person unauthorized to work
in the U.S., the Act permits the court to impose various penalties including the suspension of
its license to operate a business in the state of Arizona.
U.S. Supreme Court Decision on the 2007 law:
It affirmed the decision of the 9th Circuit Court of Appeals holding that federal law does not preempt
the Legal Arizona Workers Act. The United States Supreme Court held that "Arizona's licensing law
falls within the confines of the authority Congress chose to leave to the States and therefore is not
expressly preempted." Further, it determined that federal law does not impliedly preempt the
mandatory use of E-Verify requirement stating that although Congress had made the program
voluntary at the national level, it had not expressed any intent to prevent states from mandating
participation.
[Note: A USSC decision on the 2010 law is still quite a while away.]
SOX: Sarbanes-Oxley, Whistleblower Protection Act (WPA), disclosure of wrongdoing, recipients

enumerated in the SOX
Illustrative; not controlling law. To whom the whistle is blown and to whom the information is given is
limited; protection provided by SOX is limited, and disclosure to anyone else does not have SOX
protection. Though this case is briefed here to illustrate persuasive legal reasoning from an appellate
court outside of our 10th circuit jurisdiction, it is worth noting as reasoning that might be applied here
in a similar case.
Tides v. Boeing Company, No. 10-35238 (9th Cir., 5/3/11) ; 2011 U.S. App. LEXIS 8980; 32 I.E.R.
Cas. (BNA) 129; courts.gov/datastore/opinions/2011/05/03/10-35238.pdf
SOX specifically enumerates only three types of recipients to whom employees may report conduct
they believe violates the statute:
1. federal regulatory and law enforcement agencies;
2. members of Congress; and
3. employee supervisors.
Because members of the media are not included in this list, the court ruled that the employees'
disclosures were not protected. It went on to say that if Congress had wanted to protect SOX related
disclosures to the media, it could have included the same broad language in SOX as it did in the
federal WPA, which protects government employees or job applicants [not private sector individual]
for "any disclosure of information" that they believe constitutes unlawful activity, and it does not
expressly limit the recipients to whom the employees can make protected disclosures.
ADA: expanded disability definitions of the ADAAA, fear of heights, reasonable accommodation,
failure to provide; retaliation
Illustrative; not controlling law. Here is an informative case illustrating the importance of maintaining
consistent and effective procedures for responding to accommodation requests. In particular, note
that his case predates the ADAAA, but that in no way invalidates the strong reasoning of the decision,
and thus it is a worthwhile case to study even after the ADAAA.
Miller v. Illinois Department of Transportation (IDOT), No. 09-3143 (7th Cir., 5/10/11); 2011 U.S. App.
LEXIS 9534; courts.gov/tmp/880UKPYA.pdf.
Darrell Miller feared heights. Hired by IDOT in 2002 by to work on bridge maintenance and repair,
over the years IDOT accommodated his fear by letting him swap certain high altitude tasks with his
fellow crew members. However, in March 2006 he filed a grievance against IDOT complaining he had
been assigned to perform an unsafe task at a high altitude. Not two weeks later he suffered a panic
attack while trying to change a light bulb on a bridge beam. IDOT then placed him on sick leave and
ordered him to complete a fitness-for-duty examination. The employer’s medical examiner formally
diagnosed Miller with acrophobia and determined him unfit to perform his job. In response, Miller
requested IDOT to continue its years of accommodating him by allowing his coworkers to perform
tasks he was afraid to perform. IDOT denied his request and he was ordered back to work on May 1,
2007. Miller then filed another grievance. About a month later IDOT fired him for commenting to
another employer that he’d “like to knock the teeth out” of a coworker whom he disliked.
Miller filed an ADA lawsuit against IDOT alleging disability discrimination, retaliation and failure to
reasonably accommodate a disability, which the federal district trial court dismissed on all counts,
ruling that:
1. his requested accommodation of having others perform certain of his job tasks was
unreasonable;
2. working at high altitudes was an essential function of Miller’s job; and
3. he could not establish that IDOT’s reason for firing him was pretextual.
It did not address the issue of whether Miller was “disabled.”
The appellate court reversed the district court because there were factual issues for a reasonable jury
to decide:
1. Whether IDOT “regarded” Miller as disabled. Even though he did not report any psychological
impairment, IDOT’s actions suggested that it regarded Miller as being substantially limited in
the major life activity of working.
2. It questioned whether working at high altitudes, though part of IDOT’s job description for
bridge crew members, was an essential job function based on the fact that Miller performed
his job for nearly four years without performing certain high altitude tasks.
3. Why did IDOT not continue to provide the accommodation it had made for him over the years
because of his fear of heights? [Note: A very good question.]
4. IDOT’s adverse employment action after his grievances and requests for accommodation
established enough circumstantial evidence for a jury to find that his termination was
retaliatory.
FMLA: insufficient information, right to require, refusal to provide, coverage denial justified
Illustrative; not controlling law. Federal FMLA regulations require employees to provide their
employers with certain facts either known to the employee or the employee’s medical provider, and
failure or refusal do so can be justification for denial of FMLA leave coverage:
A federal employee is entitled to up to twelve weeks of unpaid FMLA leave within a twelve-
month period if a “serious health condition that makes the employee unable to perform the
functions of the employee’s position.” 5 U.S.C. § 6382(a)(1)(D).
The employing agency may require:
that the employee provide a medical certification to support an FMLA request for leave.
Id. § 6383(a) and
the Act provides that a medical certification “shall be sufficient if it states [among other
things] the appropriate medical facts within the knowledge of the health care provider
regarding the condition.” Id. § 6383(b)(3); also see 5 C.F.R. § 630.1207(b)(3) (requiring
that a medical certification state “[t]he appropriate medical facts within the knowledge
of the health care provider regarding the serious health condition, including a general
statement as to the incapacitation, examination, or treatment that may be required by a

health care provider”).
Janet Lewis worked for the United State Air Force (USAF) as a director of a child development center
at Elmendorf Air Force Base. In 2003 there was an opening for a new childhood development center,
she applied for that position but another candidate was selected rather than her, and she filed an
EEOC racial discrimination claim. In 2006, she applied for FMLA leave. USAF requested medical
certification supporting her request, and she provided only basic information that she had been
diagnosed with Post Traumatic Stress Disorder, which necessitated rest, psychotherapy, prescription
medications, and 120 days off work. USAF responded that such basic information was insufficient for
her employer to understand why she was unable to perform her duties and to determine whether
additional treatment would be necessary for her condition, considerations related to her return to
work. She refused to submit further documentation, and her employment was terminated. Her claim
for discriminatory retaliation was denied by the Administrative Law Judge, and the trial and appellate
courts affirmed that ruling on the grounds that the USAF’s denial of coverage was justified under the
FMLA regulations. Numerous other details and legal citations are included in the full opinion. Lewis v.
U.S.A. and Michael B. Donley, Sect. of the Air Force, No. 10-35624 (9th Cir., 5/26/11); 2011 U.S. App.
LEXIS 10576; courts.gov/datastore/opinions/2011/05/26/10-35624.pdf.
ERISA: federal jurisdiction, no issue involving benefit plan provisions, no federal preemption; common
law, negligence, breach of contract and fraud claims allowed in state court
Controlling law. When Hansen was hired he was told by the benefits coordinator that he could apply
for insurance after 90 days. Unfortunately, the terms of insurance required that he apply with 60-90
days after hiring. Consequently, he had no insurance, and thus had no benefit to take issue with that
would be covered by ERISA. Consequently, our 10th Circuit Court of Appeals ruled his claims for
common law, negligence, breach of contract and fraud claims brought in state court could proceed
there because they were not preempted by ERISA.
Discussion by our 10th Circuit court of Appeals:
“Preemption” is a legal doctrine preventing state and local governments from adopting laws
that conflict with federal laws. “Complete preemption” covers a “narrow category of state-law
claims . . . [that] fall within the scope of federal statutes intended by Congress completely to
displace all state law on the given issue and comprehensively to regulate the area.” ERISA is
one of those statutes.
However, for ERISA to preempt a state-law claim the person filing the claim must be capable
of making the claim under the ERISA, i.e., he had to be either a “beneficiary” of or a
“participant” in an ERISA-regulated plan. Hansen clearly was not a beneficiary because he
never actually had been covered by the insurance plan, so the court of appeals next examined
whether he qualified as a “participant.” In order to be a participant, a person must be:
1. an employee currently in covered employment,
2. an employee reasonably expected to be in covered employment,
3. a former employee with a reasonable expectation of returning to covered employment, or
4. a former employee with a “colorable claim” (i.e., possibly valid) to “vested benefits.”
At the time he filed his suit in state court he wasn’t in any of those four categories and thus wasn’t a
“participant” in an ERISA plan, and ERISA didn’t preempt any of his common law claims against his
employer for failing to insure him.
Court action: the 10th Circuit reversed the district court’s decision to transfer the case to federal court
and ordered it to send the case back to state court, and Hansen was allowed to continue litigating his
claims against his employer based on state law.
Hansen v. Harper Excavating, Inc., No. 08-4089 (10th Cir., 4/13/11); 2011 U.S. App. LEXIS 7553,
Title VII: racial discrimination, hostile work environment disparate treatment, retaliation; wrongful
termination; evidence, McDonnell Douglas test
Controlling law. Over the ten months of his employment as concrete truck driver Leon Shaw claimed
he had been subjected to several racially offensive comments and text messages, which he claimed
he complained about to his supervisor. His firing resulted from a dispute with a customer concerning
spilled concrete. That same day a white coworker also had a dispute with a customer about a similar
incident at another jobsite, but no corrective or adverse employment action was taken against that
employee. The federal district trial court dismissed all of Shaw’s claims on summary judgment (i.e., no
factual issues about which a reasonable jury could find liability).
Shaw v. Tulsa Dynaspan Arrow Concrete, No. 10-5066 (10th Cir., 1/28/11); 2011 U.S. App. LEXIS
1867; 2011 WL 263205; courts.gov/opinions/10/10-5066.pdf.
On appeal, the 10th Circuit Court of Appeals applied the McDonnell Douglas test:
1. the employee has the initial burden to come forward with a prima facie case proving
discrimination (i.e., essentially a basically sufficient amount of proof), then
2. the employer must show a legitimate business reason for its actions (i.e., the burden of
coming forward with evidence that it did not discriminate); and finally, if that requirement is
deemed to have been met,
3. the ultimate burden is on the employee to prove that the employer's reason is a pretext for
discriminatory motive (i.e., ultimately, the plaintiff bears the burden of proof – not merely
showing – of a right to recover).
Pretext: The 10th circuit decided this had been proven by Shaw because of the disparate treatment of
the two similarly situated drivers, and he was allowed to proceed to trial on his wrongful termination
claim.
Hostile work environment: This was found not severely offensive enough, and that claim was denied.
Retaliation: the McDonnell Douglas test was applied here, too. For step one, Shaw was required to
have to show a prima facie (legally basic) case:
1. he engaged in protected opposition to discrimination,
2. a reasonable employee would have found the behavior complained of significantly adverse or
legally offensive, and
3. a causal connection existed between the protected activity and the adverse employment
action.
And as to step one of McDonnell Douglas, some testimony was that he did not receive the offensive
text messages until after he was fired, but here was evidence that he had complained to his
supervisor about them ten days before then. Coupled with that was the close timing of his firing, the
appellate court ruled those two event were sufficient to prove causation.
For step two the employer had to provide a legitimate non-discriminatory reason for the adverse
employment action, and the appellate court decided it was a sufficient non-discriminatory reason.
Step three of McDonnell Douglas was reached, and the appellate court decided Shaw had provided
enough evidence in his pretext claim to prove it was a pretext for discrimination.
Shaw v. Tulsa Dynaspan Arrow Concrete, No. 10-5066 (10th Cir., 1/28/11); 2011 U.S. App. LEXIS
1867; 2011 WL 263205; courts.gov/opinions/10/10-5066.pdf.
Title VII: EEOC class claims, pattern or practice untimely claims barred, no clear congressional
authorization stated in Title VII
Illustrative; not controlling law. A federal district trial judge ruled that untimely “pattern and practice”
claims under Title VII §§ 706 and 707 were not allowed or intended to be allowed by Congress absent
clear statutory language allowing that, and there is no such language to that effect in the Act:
§ 706 of Title VII gives the EEOC authority to sue on behalf of one or more persons aggrieved
by an unlawful discriminatory employment practice if the individual filed a charge with the
Commission within 300 days after the alleged act.
§ 707 allows the Commission to investigate and act on cases involving a pattern or practice of
discrimination in accordance with the procedures set forth in section 706.
Note: A “pattern and practice” claim differs from a “continuing violation” claim.
EEOC v. Kaplan Higher Education Corp., No. 1:10 CV 2882 (U.S.D.C.N.D. OH, 5/10/11;
/scholar_case?
case=1289765973445445651&q=EEOC+v.+Kaplan+Higher+Education+Corp.&hl=en&as_sdt=2,32&as_
FMLA: trip to Cancun during FMLA leave, employer’s written FMLA leave policy, travel restrictions
Illustrative; not controlling law. The employer, the Communications Workers of America (CWA), had in
place written work rules specifically required employees to "remain in the immediate vicinity" of their
home while absent on sick leave. An exception was allowed for seeking treatment or taking care of
"ordinary or necessary activities directly related to personal or family needs", and in those instances
the employee must have express permission from CWA. The employee did not have permission and
was fired. The trial judge ruled that CWA policy was reasonable because it is a sick leave policy that
she would have been fired for violating even if she had not been on FMLA leave. Pellegrino v.
Communications Workers of America, No. 10-0098 (or 2:10-cv-00098-GLL) (U.S.D.C.W.D.PA,
5/19/11); FMLA Insights article with PDF link to the court decision: /abuse-of-fmla-leave/employees-
fmla-claim-dismissed-after-taking-a-trip-to-cancun/.
NLRA: pre-emption by the National Labor Relations Act, unfair labor practice (ULP), Section 301;
Garmon, Beasley and Machinists cases
Controlling law. This case is of interest primarily to litigation attorneys.
Humphries v. Pay and Save, Inc., aka Lowe’s Grocery #55, and Tim Cotton, 2011-NMCA-035,
Certiorari Not Applied For; 2011 N.M. App. LEXIS 11; /nmcases/NMCA/2011/11ca-035.pdf.
An employee suspected of union organizing was fired, and he sued in state district court for (1)
breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) negligent or
intentional misrepresentation; (4) wrongful termination; (5) tortious interference with contractual
relations (against Tim Cotton individually); and (6) declaratory relief. All counts relied on the same
core of common facts.
{1} Plaintiff William R. Humphries argues the district court improperly dismissed his claims. He
alleged below that his employers Pay and Save, Inc., and Tim Cotton (collectively Defendants)
improperly terminated his employment on suspicion that he engaged in union-organizing activities.
The district court concluded that federal labor law preempted.
CONCLUSION
{24} We affirm the district court. While it is true that Section 301 of the LMRA poses no obstacle to
Plaintiff’s claims, each still fails under either Garmon, Beasley or Machinists, regardless of whether
we consider Plaintiff an employee or a supervisor under the NLRA.
ERISA: summary plan description (SPD). Inconsistencies between SPD and underlying plan
document, detrimental reliance may not be necessary for recovery
Controlling law. Depending on circumstances, (1) plan participants may be entitled to equitable relief
when there are inconsistencies between an SPD and the underlying plan document, and (2)
detrimental reliance by participants need not necessarily be proved; rather, the amount of harm to be
proved in each particular case will depend on the applicable equitable theory of relief.
The evidentiary process is:
1. to meet the level of proof for an applicable legal theory of recovery, and then
2. the defendant may rebut that evidence to demonstrate that the inconsistency was a harmless
error.
This decision settles divergent opinions among the various federal circuit courts of appeal:
the 1st , 4th, 7th, 8th, 10th, and 11th Circuits required a plan participant to demonstrate some
degree of reliance or prejudice on the conflicting documents in order to recover, whereas
the 3rd, 5th, and 6th allowed a plan beneficiary to recover when there was a clear and
material conflict between the SPD and the plan, regardless of whether the beneficiary could
demonstrate reliance on the SPD or prejudice of the conflict.
CIGNA Corp. v. Amara, No. 09-804, ____ U.S. ____ (5/16/11); slip opinion pending formal
publication; premecourt.gov/opinions/10pdf/09-804.pdf.
CFAA: not intended as a basis to dismiss for poor performance
Illustrative; not controlling law. The CFAA has been held to be applicable for instances of employer's
trade secrets or proprietary information via email, but in this case it was rejected as a basis for
terminating the employment of an employee who was accessing Facebook at work rather than
working. Wendi Lee v. PMSI, Inc., No. 8:10–cv–2904–T–23TBM (U.S.D.C.M.D.FL, 5/6/11);
/about/library/lee-v-pmsi-m-d-florida-may-6-2011/.
ADA, ADAAA: cancerous tumor, leave for surgery, fired; new federal rule of civil procedure
Illustrative; not controlling law. This is a federal district court decision at the trial level, so strictly
speaking it has limit applicability, but the reasoning may be strong persuasive authority, though not
controlling, or binding, authority, and it is an important case for a couple of reasons:
1. The amendments to the ADA broadly define “disability”, almost to the point of assuming
disability in most cases, whereas previously a plaintiff had to show that the impairment made
him unable to function on a daily basis.
2. Also, there is a new federal rule of procedure, effective Dec. 1, 2010, providing that a litigant
can request a federal trial court judge, on the judge's own initiative, to grant summary
judgment on a legal issue.
Norton v. Assisted Living Concepts Inc., No. 4:2010cv00091 (U.S.D.C.E.D.TX, 5/13/11);

/docket/texas/txedce/4:2010cv00091/121321/.
Here are the operative facts:
In April of 2009 the employee was diagnosed with a cancerous tumor on his left kidney,
He left on medical leave for surgery,
returned to work on July 1, 2009, and
on August 5, 2009, he was fired.
He sued for disability discrimination, and his employer answered that he was fired for poor
performance. As is typical, the employer moved for partial summary judgment on the grounds that the
employee did not a disability. In rejecting that argument, the federal trial judge noted three factors:
1. Congress clearly stated in the ADAAA that it intended disability to have a broad and expansive
meaning,
2. it did not matter if the plaintiff's cancer was in remission, and
most importantly, the major difference between the ADA as originally passed and the ADA after the
ADAAA is that there is a disability even if the only major life activity the condition substantially limits is
something very narrow, such as normal cell growth.
Title VII: discrimination, decisionmaker, racial animus, retaliation, termination
Illustrative; not controlling law. $1.6M was the award in this case. This one makes interesting reading
about egregious misconduct still going on in the workplace. The employee’s complaints were
unavailing, and condition worsened. Termination of his employment was stated to be because of poor
performance. Evidence indicated that the decisionmaker harbored racial animus.
Thomas v. iStar Financial, Inc., has a long legal history, and the summaries by the courts are
instructive:
520 pp.2nd 483 (2007); /scholar_case?
case=932906133700328593&hl=en&as_sdt=2&as_vis=1&oi=scholarr;

case=17983795763107080153&hl=en&as_sdt=2&as_vis=1&oi=scholarr;

case=13248633905055046921&hl=en&as_sdt=2&as_vis=1&oi=scholarr; and
No. 07-5327-cv (L), 07-5510-cv (XAP) (2nd Cir., 12/17/10); 629 F.3d 276; 2010 U.S. App.
LEXIS 25717; 110 Fair Empl. Prac. Cas. (BNA) 1761; 94 Empl. Prac. Dec. (CCH) P44,066;
courts.gov/decisions/isysquery/a142f58d-1256-42a9-99e6-4378741e850f/1/doc/07-
5327_opn.pdf#xml=courts.gov/decisions/isysquery/a142f58d-1256-42a9-99e6-
4378741e850f/1/hilite/.
Title VII: race, history of twenty-three complaints against, recent complaint filed by him; evidence,
timing, documentation, three-step proof; no pretext; no retaliation
Controlling law. Twenty-three internal complaints (five for sexual harassment) had been made
against this African-American male employee who had adequate performance evaluation. A
complicating factor in this case was that he had recently filed his own complaint alleging lack of
advancement opportunities for African-Americans.
Crowe v. ADT Security Services, Inc., No. 10-1298 (10th Cir., 4/25/11); 112 Fair Empl. Prac. Cas.
(BNA) 1; courts.gov/opinions/10/10-1298.pdf.
Fortunately, the employer had adequate documentation of his misbehavior, and the employer’s
investigation of the situation also was adequate. As you will recall, these are the essential elements of
the three-step evidentiary proof rule:
1. the employee has the initial burden to come forward with a prima facie case proving
discrimination (i.e., essentially a burden of proof), then
2. the employer must show a legitimate business reason for its actions (i.e., the burden of
coming forward with evidence that it did not discriminate); and finally
3. the ultimate burden is on the employee to prove that the employer's reason is a pretext for
discriminatory motive (i.e., the plaintiff bears to burden of proof – not merely showing – a right
to recover).
Element 3 was a pivotal issue, and the plaintiff used an interesting approach in his attempt to prove
pretext: he argued that his long disciplinary history, eight years, proved that his employer tolerated his
misbehavior for so long that it could not be the basis for terminating his employment, and it stopped
when he participated in a discussion about the lack of African-American managers. The appellate
court rejected that novel argument because it found that the employer’s corrective action of his
misbehavior had been consistent and coherent. Also, it found that there was no evidence of
discrimination, i.e., no evidence that similarly situated employees were treated differently. Finally, it
found that there was no evidence of pretext for retaliation because his termination was based on his
extensive history of inappropriate behavior as shown by the investigator's report stating his long
history of bad behavior and that no remedial measures had been effective.
Summary judgment in favor of the employer was affirmed because the appellate court found that a
reasonable jury could not conclude that firing plaintiff based on his history of inappropriate behavior
was pretextual, even when this occurred after his participation in the discussion about the lack of
African-Americans in management.
Caution: The appellate court distinguished this case from those cases in which the employer explains
its reason for terminating employment based on subjective evaluation criteria and there was a shift
from positive performance reviews to negative ones, which might be considered to be evidence of
pretext.
FLSA: “continuous workday” rule, tasks performed at home, commuting time, and more
Illustrative; not controlling law. As electronic devices become more prevalent in the business world,
when does the workday begin and end? If employment duties extend into personal time and space,
how is pay calculated? Does commuting time count? These are questions to discuss with your
employment law attorney to ensure you are complying with the FLSA.
Under the FLSA, the “continuous workday” rule refers to time spent traveling after the workday has
begun. Thus if an employee reports to work at a central office, completes necessary paperwork, and
thereafter drives to his or her first work assignment, the time spent traveling is compensable work
time, as is time spent traveling between customer locations. On the other hand, ordinary time spent
commuting from home to and from work is not compensable
Kubuel v. Black & Decker, No. 10-2273-cv (2nd Cir., 5/5/11); 2011 U.S. App. LEXIS 9448;
courts.gov/decisions/isysquery/cd37e10c-f29e-4e63-8355-123f9b87503e/2/doc/10-2273_opn.pdf.
This Second Circuit case decided, among other things, that the workday has not begun when the
employee: he works from a home office, completes work at home, such as reviewing and responding
to e-mail, before commuting to the first job assignment or doing things like that after commuting
home.
However, it let other issues remain for trial.
Caution: Read this case for the details of what the employee did and did not do, and what the
appellate court considered important. Decisions in these situations depend on very specific facts and
circumstances, so no general rule can be stated, which is why each employer must discuss their
unique factual situations with their employment attorney. In addition to FLSA situations, there are also
implications for whether an employee might be covered by workers’ compensation and other laws.
Privacy: electronic information, Computer Fraud and Abuse Act (CFAA), departing employee obtained
confidential company documents, who is an authorized user, and who is not, disloyal employee(s)
Illustrative; not controlling law. This case provides new and helpful additional perspectives on the
CFAA that may be helpful to employers faced with activities by disloyal employees. David Nosal
employee signed a covenant-not-to-compete in effect for a period of one year. Soon after executing
that agreement he began recruiting fellow employees to use their company email accounts to access
confidential company information for him to use to start a competing business. One twist on the CFAA
in this case is that the employees still with the company were authorized to have access to that
information, but only for use on behalf to the company and for the benefit of the company. He also
had sent such information to himself at his personal email account. Such activities were found by the
9th Circuit Court of Appeals to violate the CFAA. Read the entire opinion of pertinent history of
previous appellate rulings on the CFAA (Citrin, Brekka, and others). United States v. Nosal. No. 10-
10038 (9th Cir., 4/28/11); 2011 U.S. App. LEXIS 8660;
ADA, Disability: mental disability, bipolar disorder, misbehavior, medication and psychotherapy,
chemical imbalance; corrective action, focus on behavior, not condition
Illustrative; not controlling law. As has been seen previously, focusing on the behavior or misbehavior
is different from reacting to an employee’s actual or perceived condition. This 2008 EEOC guideline
provided assistance: http://www.eeoc.gov/facts/performance-conduct.html. An employer may apply
the same performance standards to all employees, including those with disabilities. The ADA does not
restrict an employer’s right to hold all employees to basic standards of conduct, though it cautions
that “employers must make reasonable accommodations that enable individuals with disabilities to
meet performance and conduct standards.”
Wills v. Superior Court, G043054 (Cal.App., Dist. 4, Div. 3, 4/13/11); 194 Cal. App. 4th 312; 2011 Cal.
App. LEXIS 434; http://www.courtinfo.ca.gov/opinions/documents/G043054.PDF.
A court clerk assisted with video criminal arraignments in the city detention facility. One day she had
to wait several minutes after buzzing to enter, and she flared up by swearing and yelling at detention
officers for what she perceived and accused them of intentionally leaving her outside on a hot
summer day. She told one officer that she added him and the detention facility assistant to her “Kill
Bill” list for leaving her out in the heat. Consequently officers and other witnesses felt threatened by
her demeanor and statements, which they interpreted to refer to the Kill Bill movie’s death list. The
police department reported her misbehavior to the county court and requested she never be assigned
to the city facility in the future. After a physician released her to return to work following this incident,
the county court investigated and decided to terminate her employment for these reasons:
1. Threatening a peace officer and other Anaheim Police Department personnel with physical
harm while conducting official Court business,
2. threatening and inappropriate communications with co-workers,
3. misuse of court resources, and
4. poor judgment,
which the county court explained violated its employee handbook provisions prohibiting verbal
threats, threatening behavior, and violence, plus her behavior and other efforts to minimize her
conduct as a joke demonstrated poor judgment.
She filed a discrimination lawsuit that alleged violations of California’s Fair Employment and Housing
Act (FEHA) for disability discrimination, retaliation, and hostile work environment, failure to prevent
harassment, failure to engage in the interactive process, and failure to make reasonable
accommodations. Summary judgment was granted by the trial court judge in favor of the employer.
On appeal there was no dispute that her bipolar disorder caused her misbehavior. Recognizing that
federal and state courts do not all agree on whether this is disability discrimination, the California
state appellate court opted to narrowly rule on the matter and limit its decision in this instance to
situations of workplace threats and violence, stating that . . . that “Consistent with the federal courts'
interpretation of the ADA, we interpret FEHA as authorizing an employer to distinguish between
disability-caused misconduct and the disability itself in the narrow context of threats or violence
against co-workers.” [California Labor Code § 6400(a) states: “Every employer shall furnish
employment and a place of employment that is safe and healthful for the employees therein.”] It went
on to state:
We emphasize we are not presented with a situation involving misconduct impacting an employee's
job performance the employer potentially could address through accommodation. For example, an
employer could accommodate an employee whose disability caused chronic tardiness or
absenteeism by altering the employee's work schedule. We express no opinion on whether FEHA
permits an employer to distinguish between disability-caused misconduct and the disability itself in
any factual setting other than threats or violence against coworkers.
[Note: As always, check with your employment law attorney for the latest law in your jurisdiction on
this issue. The California appellate court’s caveat on accommodation is worth considering in such
instances. Also, this is a good article to review – How far Is Too Far?:
/#sclient=psy&hl=en&site=&source=hp&q=HOW+FAR+IS+TOO+FAR%3F++EMPLOYEE+MISCONDUC
ADA: drug rehabilitation, status of recovery, refusal to rehire; no “bright-line” time rule, proof must be
on a case-by-case basis
Controlling law. The employer decided not to rehire an employee at the conclusion of his one-month
participation in a drug rehabilitation program because he could not show he was not currently using
illegal drugs. Our 10th Circuit Court of Appeals ruled the employer had not violated his rights under
the ADA. Decisions about current drug use need to be handled on a case-by-case basis. The full
opinion provides a detailed analysis of the law on this sensitive and sometimes complicated matter.
Mauerhan v. Wagner Corp., Nos. 09-4179 & 09-4185 (10th Cir., 4/19/11); 2011 U.S. App. LEXIS 7952;
Peter Karl Mauerhan worked for Wagner Corporation as a sales representative starting in 1994. In
2004 he voluntarily entered a one-month drug rehabilitation program, his employer was aware of that,
and it did not interfere with his work schedule. In 2005 he submitted to a drug test requested by his
employer, and he failed it, which was a violation of the employer’s company drug policy. His
supervisor informed him that “he could return to Wagner if he could get clean.” Mauerhan returned to
the program, but the prognosis at the end was “guarded”. Mauerhan was advised that “he could
return to work, but that he would not receive the same level of compensation as he had previously
received or be able to service the same accounts he had prior to his discharge”, and based on those
conditions he declined the offer.
He sued and the federal trial court ruled that “one month of abstaining from drugs was too short as a
matter of law to gain the protections of the ADA”, and the 10th Circuit Court of appeals affirmed that
ruling. Here are the important aspects of the appellate decision:
The ADA prohibits discrimination against a “qualified individual” due to disability, but “an
employee or job applicant is not ‘a qualified individual with a disability’ if he or she is ‘currently
engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.’”
The ADA provides a “safe harbor” provision that protects individuals who are not currently
engaged in the illegal use of drugs, and Mauerhan argued that he qualified for it because “at
the time he sought reemployment, he had completed the one-month addiction treatment
program and was no longer engaging in drug use.” In response, his employer countered that
no court had found 30 days of sobriety to be sufficient to qualify as no longer “engaging” in
drug use.
The appellate court ruled in favor of the employer, but it clearly stated it would not state a
“bright-line” rule regarding the amount of time that must pass for an individual to be
considered no longer “currently” using drugs, noting that other jurisdictions similarly refused to
articulate such a rule. It did state that the “mere participation in a rehabilitation program is not
enough to trigger the protections” of the ADA’s safe-harbor provision and “an individual must
also be ‘no longer engaging in’ drug use for a sufficient period of time that the drug use is no
longer an ongoing problem.”
Further, it also held that whether an employee is “no longer engaging in” drug use could only
be determined on a case-by-case basis, and factors to consider include the severity of the
employee’s addiction, the relapse rate for the drugs used, the employee’s level of
responsibility, the employer’s job performance requirements, and the employee’s past
performance record were identified as factors to be considered in determining whether an
“employee’s substance abuse prohibited the employee from performing the essential job
duties.”
Evidence produced by the employer was that “Mauerhan’s recovery status was “guarded” and
at least ninety days of recovery was necessary to ensure significant improvement in his
condition”, and Mauerhan failed to refute this evidence.
Arbitration: class action prohibition ruled unconscionable and unenforceable, Federal Arbitration Act
(FAA) preempts state legislation
Controlling law. Though this case involved consumer goods arbitration, its reasoning likely could
expand to employment situations. Under this decision federal law (FAA) preempts state law governing
arbitration agreements.
AT&T Mobility LLC v. Concepcion, No. 09-893, ____ U.S. ____ (published 4/27/11, decided 8/16/10);
131 S. Ct. 45; 177 L. Ed. 2d 1134; 2010 U.S. LEXIS 5634; 79 U.S.L.W. 3091;
Vincent and Liza Concepcion signed a two-year service contract with AT&T Mobility (ATTM) in 2002,
and the contract contained a clause requiring arbitration of any disputes with ATTM directly, and
prohibiting them from participating in any class action lawsuit against ATTM. A dispute arose about
charges, and as you may recall class actions often are allowed by courts when the amounts in
question might be too small to pursue in court, but there are issues of fact and law that in an
aggregate of a number of individuals would be worth the effort.
In their California legal action ATTM filed a motion to compel arbitration, which the court denied on the
ground that the arbitration clause was unconscionable under California law, and that the FAA did not
preempt California law.
ATTM appealed to the U.S. Court of Appeals for the 9th Circuit, which held that California law was not
preempted and agreed with the district court that ATTM's class action waiver provision was
unconscionable. It also rejected ATTM's argument that the "premium" payment rendered the contract
valid because ATTM could avoid the premium payment by offering the full amount of the claim before
going to arbitration, which here was the very modest sum of $30.22. As a practical matter, the amount
ATTM was likely to pay was too small to induce the average consumer to pursue an individual claim.
The United States Supreme Court held that though the FAA's savings clause permits arbitration
agreements to be invalidated by "generally applicable contract defenses," it does not allow
invalidation by defenses applying only to agreements to arbitrate. Justice Scalia explained:
nothing in Section 2 of the FAA "suggests an intent to preserve state-law rules that stand as
an obstacle to the accomplishments of the FAA's objectives" and
the purpose of the FAA is to "promote arbitration," whereas, California's rule prohibiting class
action waivers in consumer contracts interfered with arbitration.
Consequently, the FAA preempted the California rule.
The dissent argued that "class proceedings are necessary to prosecute small-dollar claims that might
otherwise slip through the legal system", but the majority held that "States cannot require a procedure
that is inconsistent with the FAA, even if it is desirable for unrelated reasons."
NMPEBA: Public Employee Bargaining Act, paramedic training contracts, mandatory bargaining,
county cannot unilaterally enter into housing agreement contracts, must include union in negotiations
Controlling law: Summary by the NM Court of Appeals:
{2} [E]mployees of the Los Alamos County Fire Department and members of the Union. Defendants
were accepted to participate in a voluntary paramedic training program at Eastern New Mexico
University in Roswell, New Mexico. The County offered contracts to Defendants called housing
agreements, which Defendants entered into with the County. The contracts provided that the County
would allow Defendants to continue their employment on paid status with full salary while they
attended the paramedic training, that it would provide per diem or reimbursement for lodging, meals,
and travel, and that it would make a vehicle available to them to drive to and from Roswell.
{3} Defendants agreed that in return they would comply with several provisions in the contract,
including maintaining employment as firefighter paramedics with the County for at least two years
after completion of the fourteen-month training program. A failure to abide by the terms of the contract
could result in disciplinary action up to and including termination. Further, Defendants agreed that if
they failed to complete the training or maintain employment with the County as provided by the
contract, they would reimburse the County for all expenses incurred by the County associated with
the training. The County could, in its sole discretion, waive the reimbursement requirement for good
cause shown.
{4} Both Defendants executed a contract with the County, and both completed the paramedic training
program. Martinez signed his contract and remained employed with the County for seven months
after completing the program. He then voluntarily left his employment without making reimbursement.
Dickman signed his contract and remained employed for six months after completing the program. He
also voluntarily left his employment without making reimbursement.
{5} The County and the Union were parties to a collective bargaining agreement (CBA) that covered
Defendant’s bargaining unit, effective January 1, 2004, through December 31, 2005. The CBA
contained provisions relating to wages, hours, and terms and conditions of employment. The
paramedic training contracts, however, were not covered by the CBA.
{6} In addition to the specific provisions relating to wages, hours, and terms and conditions of
employment, the CBA contained a management-rights clause that gave management certain specific
operational and policy rights, as well as “all rights not specifically limited by this [CBA].” Finally, the
CBA contained a “zipper clause,” which provided that the CBA was the “complete and only agreement
between the parties,” that all the mandatory subjects of collective bargaining had been “discussed
and negotiated upon,” and that each party waived the right “to bargain collectively with respect to any
subject matter not specifically referred to or covered in [the CBA.]”
County of Los Alamos v. Martinez, No. 29,085, 2011-NMCA-027 (2/7/11); 2011 N.M. App. LEXIS 21;
190 L.R.R.M. 2415; access to the official opinion PDF: /nmcases/NMCACurrent.aspx
FMLA: past claims may be settled, but not future ones
Illustrative; not controlling law. This case has interesting possibilities to discuss with your employment
law attorney. It’s from the 4th Circuit [ours is the 10th], but the reasoning seems quite persuasive: the
regulations have changed.
Whiting v. Johns Hopkins Hospital, No. 10-1158 (4th Cir., 3/14/11, unpublished); 2011 U.S. App.
LEXIS 5199; /scholar_case?
case=10046100461375103188&q=Whiting+v.+Johns+Hopkins+Hospital&hl=en&as_sdt=2,32&as_vis=1
When the 4th Circuit decided Taylor v. Progress Energy Inc., 493 F.3d 454 (4th Cir. 2007), DOL's
regulations barred waiving of substantive and proscriptive Family and Medical Leave Act (FMLA)
rights unless the DOL or a court approved the release/waiver. Subsequently, DOL amended its
regulations to allow past claims to be releases or waived in a private settlement agreement, and the
Whiting court allowed the waiver to stand.
Johns Hopkins Hospital terminated Whiting’s employment after she had taken all of her FMLA leave
rights and the hospital filled her position. Whiting filed a discrimination claim with the EEOC alleging
violation of the ADA. At the EEOC mediation she signed two settlement agreements: (1) the EEOC's
mediated settlement agreement and (2) a separate Release and Settlement Agreement (RSA). That
RSA waived any rights or claims "arising out of or in any way relating to [her] employment, including
but not limited to any claims for breach of contract, wrongful discharge, violation of Title VII . . . the
[ADA] . . ., the [ADEA], or any other federal, state, or municipal statute or ordinance relating to [her]
employment." Whiting further agreed she would "neither file nor cause or permit to be filed on her
behalf and . . . waive her right to recover . . . upon filing, any lawsuits, claims, grievances, complaints,
or charges in any forum, or any dispute arising out of her employment relationship with [the employer]
through December 20, 2007."
Despite the terms of the RSA, she filed a complaint in federal trial court alleging violations of the
FMLA. Her employer filed a motion to dismiss or, in the alternative, for summary judgment on the
grounds that the employee's claim was barred by the RSA and that the DOL's 2008 FMLA regulations
specifically allowed private settlements of FMLA claims. Whiting opposed her employer’s motion on
the grounds that the new DOL regulations, issued more than one year after she signed the RSA, did
not apply and, further, that, the DOL's new regulations were contrary to the FMLA. The trial judge
ruled in favor of the employer.
On appeal, the 4th Circuit held that private settlements of FMLA claims are enforceable, including
releases pre-dating the 2008 amended regulations based on this reasoning:
Affirming the district court's order:
the 2008 DOL rules merely affirmed that the agency's original regulations permitting
private waivers of FMLA claims because the 2008 DOL regulations simply sought to
clarify and confirm the DOL's long-held view regarding private releases, and
the DOL's clarification applied to releases signed before the DOL issued the new rules.
It rejected any analogy between the FMLA and FLSA because the FLSA, unlike the FMLA, is a
remedial statute that is intended to protect vulnerable workers who lack bargaining power to
negotiate work hours and wages.
Relying on the DOL's rationale for permitting unsupervised settlement of past FMLA claims as
stated in the 2008 rules preamble, the court upheld the DOL's revised regulations on the
ground that the DOL's interpretation of the FMLA was reasonable.
NLRA: National Labor Relations Act, union activities, employment terminated, federal law preemption,
state court employment complaint dismissed
Controlling law. This plaintiff was filed for his union activities, which is a matter covered by the
National Labor Relations Act. Recognizing this preemption, the district judge dismissed the claim for
lack of subject matter jurisdiction, and the NM Court of Appeals affirmed, stating that the employee
needed to file with the NLRB. Humphries v. Pay & Save, Inc., NO. 29,197, 2011 N.M. App. LEXIS 11
(No. 29,197) (N.M. Ct. App., Mar. 11, 2011); [waiting for formal publication citation URL; in the
meantime the slip opinion can be located in the NMCA index at /nmcases/NMCASlip.aspx].
ADA: Not regarded as disabled, no retaliation, no constructive discharge, summary judgment in favor
of employer
Controlling law. From time to time a case appears clearly illustrating excellent business and human
resources best practices. Read this case in its entirety -it is highly recommended because it deals
with many important factors that cannot be adequately captured in a brief; I started to outline it and
saw that was not going to be brief. I couldn’t have constructed a better example of what to do in this
kind of situation. Essentially, the ADA does not require employers to understand the nature and extent
of every possible disability. As such, employers confronted with a condition they know little or nothing
about can and should be investigated and learned about. Caution and inquiry in correcting any
temporary mistaken attitude or belief does not equate to regarding an employee as disabled because
that temporary uncertainty is not the same as considering an employee disabled. However, failing to
investigate for clarification and or persisting with that mindset may result in ADA liability for regarding
the employee as disabled. In this case the human resources manager was open-minded and
inquiring, honest about her lack of knowledge, educated herself, kept in contact with health
professionals regarding the employee in question. And communicated openly with her executives.
Fryer v. Coil Tubing Services, LLC, No. 09-8105 (10th Cir., 2/9/11); 2011 U.S. App. LEXIS 2637; 2011
WL 441695 (10th Cir., Feb. 9, 2011); courts.gov/opinions/09/09-8105.pdf.
Arbitration, Title VII: collective bargaining agreement (CBA) grievance arbitration dismissed by
arbitrator, Title VII national origin complaint allowed
Controlling law. This 10th Circuit Court of Appeals case is based on a 1974 United States Supreme
Court decision reversing 1oth circuit case. Balancing public interest in finality of arbitration decisions
with protecting employees against illegal discrimination has left a long history of federal cases, which
are cited and discussed in this current 10th Circuit opinion. Accordingly, consider reviewing CBAs to
see if they explicitly authorize arbitration to cover and decide Title VII issues.
John Matthews, originally from India, started with the Denver News Agency in 1983, and in 2003 he
had risen to a unit supervisor. Following complaint by a female employee of inappropriate comments
to her, he was placed on leave. He was demoted from supervisor on July2, 2005, and on that day he
walked of the job and obtained a certificate from a physician that he was medically unable to return to
work. He also filed a union grievance for his demotion, alleging national origin discrimination. The
arbitrator ruled the demotion was for complaints by employees, not national origin. He also filed for
Social Security Disability benefits a bulging disc and an affective disorder, and he received SSD
benefits.
The trial court granted the employer’s motion for summary judgment, which the appellate court
reversed to allow a jury trial. Basically, the appellate reasoning was that his agreement to arbitrate
under the CBA did not waive his right to claim Title VII discrimination. However, the appellate court did
affirm the district court ruling that in his discrimination claim he had failed to prove a prima facie
(legally sufficient) case, i.e., that he was qualified for the supervisor position because his statement
under oath in the SSD hearing indicated otherwise, and he could not explain the inconsistency. His
retaliation claim was remanded [returned] to the district court for trial on the grounds that a
reasonable jury might that other employees were not demoted (1) for similar misconduct and (2) there
might have been motivation based on his complaints about bias in the month before his demotion.
Handbooks: ten major mistakes
Illustrative examples from a leading law firm: /publications.php?id=306.
Public agency: City of Albuquerque Merit System Ordinance termination process
Controlling law, but of narrow application limited to a specific situation. As such, it is noted but not
briefed. This NM Court of Appeals case involved a Customer Service Representative of the City’s
Transit Department, and it was not certified to the NM Supreme Court. The NM Court of Appeals held
that:
1. as a result of the City’s actions that amounted to “positive action” under the Merit Ordinance,
Puccini was a non-probationary employee and therefore was entitled to a termination hearing
under the Merit Ordinance;
2. the district court did not apply the incorrect standard of review; and
3. the district court did not err by not remanding the case to the Personnel Board for entry of
findings of fact and conclusions of law.
City of Albuquerque v. AFSCME Council 18, on Behalf of Amy Puccini, (1/27/11); 2011 NMCA 21;
2011 N.M. App. LEXIS 5; ftp://barbulletin:barbulletin@/BB_04_06_11.pdf.
NLRB: handbooks, overly broad language: no solicitation, no distribution, no loitering, dress code -
buttons; ; general disclaimer language; decertification election set aside
Controlling law. Employee handbook rules governing certain forms of communication were ruled by
the National Labor relations board to discourage communications among employees about union
matters and activities. Apparently general disclaimer language about no intention of infringing on
National Labor Relations Act (NLRA) rights was insufficient, so employers need to review their
handbooks and confer with their labor attorneys to see if their handbooks need to be revised.
For two years the company had recognized the union at the time the employees filed a petition for an
election to decertify the union. The company’s 63-page employee handbook contained, among other
things, these policies:
no solicitation or distribution,
no loitering, and
a grooming rule banning wearing message buttons.
The union had not objected to those handbook requirements during the previous two years, nor was
there any evidence that the rules had any effect on the decertification election result. The employer
responded to the union’s unfair labor practice (ULP) allegation by sending a clarifying memorandum
to all employees stating that the rules were not intended to infringe on employees' rights under the
NLRA. Further, the employer announced that it was amending two of its policies and deleting the
prohibition on buttons and insignia. Nonetheless, the NLRB ruled the handbook language was too
broad and infringed NLRA rights. Jurys Boston Hotel, 356 NLRB No. 114 (3/28/11);
/Jurys%20Boston%20Hotel,%20356%20NLRB%20No.%20114%20%28March%2028,%202011%29.pdf
NLRB: pro-union solicitation by supervisors
Controlling law: Seven supervisors engaged in solicitation for unionizing and the company engaged
in strong opposition to unionizing. The National Labor Relations Board decided that the actions of the
supervisors were not objectionable because they balanced out the action of the company. Terry
Machine Co., 356 N.L.R.B. No. 120 (2011);
NLRB: protection of wearing pro-union t-shirts that could disparage employer’s reputation with
customers
Controlling law: Employees wore “prisoner” shirts during the work day during the course of collective
bargaining, and were in some instances worn during visits to customer homes and businesses. The
employer prohibited that and threatened to suspend employees who defied the prohibition. The shirt
was “mostly a plain white T-shirt with ‘Inmate #’ in relatively small print on the upper-left front. On the
back of the shirt, two sets of vertical stripes appeared with ‘Prisoner of AT&T’ in between”. The
company said was concerned the shirts would cause fear and alarm its customers. The NLRB
reasoned that the “Prisoner” shirt was not reasonably expected, under the circumstances, to cause
fright or distress among the employer’s customers because the tee shirt itself could not be mistaken
for a prison garb — “the totality of the circumstances would make it clear that the technician was one
of Respondent’s employees and not a convict.” Southern New England Telephone Co., 356 NLRB
No. 118 (2011)
FLSA: overtime, miscalculation, legal advice, reckless disregard, good faith, statutes of limitations,
willfulness, back pay, liquidated damages; McDonnell Douglas evidentiary proof steps
Controlling law. Seeking legal advice needs to be done adequately, which means, among other
things, selecting competent counsel, disclosing all of the facts (favorable and unfavorable), and
following the advice of the attorney.
Mumby v. Pure Energy Servs. (USA), Inc., No. 10-8030 (10th Cir., 2/22/11); 2011 U.S. App. LEXIS
3460; 17 Wage & Hour Cas. 2d (BNA) 449; courts.gov/opinions/10/10-8030.pdf.
Pure Energy is a Canadian company that began doing business in the U.S. Cindy Rucker was hired
to run payroll, she expressed concerns about pay policies, and she was referred to a Colorado
attorney, Paul Hurcomb. Pure Energy’s policy was to pay its employees a flat “day rate” regardless of
the number of hours they actually worked. Hurcomb did no legal research and advised that Pure
Energy would be in compliance with the FLSA as long as (1) its employees didn’t work more than 12
hours per day and (2) overtime was paid for any hours worked over 40 in a week [incorrect under the
circumstances because the flat rate would not cover workers working longer hours]. However, that
was irrelevant because Pure Energy continued its payment policy in what the courts found to be “in
reckless disregard of FLSA requirements”. Further, it was on notice of FLSA overtime payment
requirements. Mumby and others sued under the FLSA, and the federal district trial court awarded
both back pay and liquidated damages, plus other recovery.
The courts found the company’s subjective belief that it was in compliance with the Act was
unreasonable.
One possible defense under the FLSA is that consulting an attorney may show good faith.
Succeeding with that defense requires the employer to prove it:
1. requested advice on the legality of the proposed action or policy;
2. fully disclosed the relevant facts to the attorney;
3. received advice that the action or policy would be legal; and
4. relied in good faith on that advice.
Pure Energy failed to do that.
On another aspect of the case, the statute of limitations on FSLA claims is usually two years.
However, it is three years for willful violations, and in those instances willful violations may be
compensated by “liquidated damages” up to double the amount of the back pay, and in addition to the
back pay.
Tribal sovereignty: tribal “Title VI” type claim not allowed in federal court; handbook terms inapplicable
Controlling law. The long-standing legal doctrine of sovereign immunity precludes legal action
against a government without its consent, which means that in the United States the doctrine protects
the federal government, state governments, and Indian tribes. The plaintiff alleged Title VII
discrimination by the Native American casino in which he had worked and sued in federal court. The
casino raised the defense of sovereign immunity because the alleged acts occurred in the tribes land,
and thus in its jurisdiction. In response, the plaintiff contended that though Congress may have
affirmed tribal immunity in the language of Title VII, the tribe had waived its immunity because a
sentence in the casino’s employee handbook promised to “comply with the provisions of Title VII.”
Our 10th Circuit Court of Appeals stated that “. . . the waiver . . . of sovereign immunity must be
unequivocally expressed rather than implied”, and noted that most case law dealing with this issue
has held that such waivers must be stated in terms of expressed waivers making explicit references
to being sued in federal or state court. Thus, though the casino’s handbook “may convey a promise
not to discriminate,” said the court, it in no way constitutes consent to be sued in federal court.
Nanomantube v. Kickapoo Tribe, No. 09-3347 (10th Cir., 1/31/11); 631 F.3d 1150; 2011 U.S. App.
LEXIS 1910 (10th Cir., Kan., Jan. 31, 2011); 111 Fair Empl. Prac. Cas. (BNA) 610;
Title VII: harassment, discrimination, retaliation; pro se; summary judgment for employer
Controlling law. Investigation of the employee’s complaints of harassment and discrimination found
no evidence to support her complaints. Rather, evidence supported termination of her employment for
deficient performance and failure to meet the goals in her performance improvement plan (PIP).
Faragalla v. Douglas County Sch. Dist, Nos. 09-1393 and 10-1433 (10th Cir., 1/12/11; unpublished);
2011 U.S. App. LEXIS 604; 111 Fair Empl. Prac. Cas. (BNA) 523; courts.gov/opinions/09/09-1393.pdf.
Union, NLRB: protected concerted activity, union organizing handbill distribution, new type of access
rights, contractor and third-party employees, union organizing handbill distribution
Controlling law. New law is declared by this case that protects concerted activities by contract
employees and declares where such access may occur – so what happens in Vegas doesn’t
necessarily stay in Vegas. Reading this case for all of the factual and legal details is essential if an
employer might be confronted with union activities similar to those in this case, as is consulting with
legal counsel experienced in labor law.
New York New York, LLC, d/b/a New York New York Hotel & Casino, 356 NLRB No. 119; go to
https://www.nlrb.gov/cases-decisions/case-decisions/board-decisions to locate and download the
decision; cases are listed alphabetically.
Briefly, the issues decided by the NLRB arose from activities by off-duty employees of an onsite food
service contractor seeking access to the hotel and casino property where they worked in order to
pass out handbills in connection with their union organizing activity. The site was the New York New
York Hotel & Casino and the activity occurred at three sit-down restaurants, a food court, banquet
catering, hotel room services, and the dining room used by casino and other contractor employees.
The NLRB stated in this opinion that: "we seek to establish an access standard that reflects the
specific status of the [contractor] employees as protected employees who are not employees of the
property owner, but who are regularly employed on the property." Using that new access standard,
the Board ruled that the property owner did not have sufficient property or managerial interests to
prohibit its contractor's employees' off-duty access to its property and consequently violated Section
8(a)(1) of the National Labor Relations Act.
FMLA: interference with leave; refusal to reinstate; type of claim – discrimination or interference;
evidence, employer’s intent is irrelevant; factors at play - air quality, using “low quality” paper, unclear
cause of medical problems
Illustrative; not controlling law. This 9th circuit panel opinion relied on similar cases decided by the 6th
and 7th circuits in this claim for interference with FMLA leave. Basically, the ruling in this case means
an employer must prove its reasons for not reinstating an employee released to return to work after
FMLA leave and that the employee need not show that her employer lacked a reasonable basis for its
refusal.
[Comment: This case catches my attention because it essentially puts the burden of proof on the
employer. Typically, the burden of proof in litigation seldom shifts from the plaintiff to the defendant. It
is important to note that there is a difference between the burden of proof and the burden of going
forward with evidence. In the prominent McDonnell Douglas case the analysis of evidence is that:
the employee has the initial burden to come forward with a prima facie case proving
discrimination (i.e., essentially a burden of proof), then
the employer must show a legitimate business reason for its actions (i.e., the burden of
coming forward with evidence that it did not discriminate); and finally
the ultimate burden is on the employee to prove that the employer's reason is a pretext for
discriminatory motive (i.e., the plaintiff bears to burden of proof – not merely showing – a right
to recover).
Now, I may be mistaken about this, but it appears that this Sanders case and those in the 6th and 7th
circuits in effect shift the burden of proof to the employer.
A further interesting factor is that the cause of the employee’s health problems is unknown, a matter
that might not be discovered even with an interactive exploration by both the employer and the
employee.
Hearing from colleagues with their analysis of this situation is welcomed.]
Diane Sanders was released to return to work from FMLA leave with a letter from her physician
advising that her employer, the City of Newport, OR, should stop using "low grade" paper, which it
apparently agreed to do. However, it refused to reinstate her employment because it contended it
could not provide her with a safe workplace because it was not clear what caused her medical
problems.
Erroneous jury instruction:
In the trial court the judge instructed the jury that the plaintiff must prove she was denied
reinstatement "without reasonable cause". The appellate court ruled this was the wrong legal
standard, and it set forth the following applicable law and procedure:
Plaintiff’s required proof: On appeal, the court relied on this reasoning of the Sixth and
Seventh Circuits of proof that . . .
. . . have ably summarized the elements of an employee’s prima facie case where the employer fails
to reinstate the employee: “the employee must establish that: (1) he was eligible for the FMLA’s
protections, (2) his employer was covered by the FMLA, (3) he was entitled to leave under the FMLA,
(4) he provided sufficient notice of his intent to take leave, and (5) his employer denied him FMLA
benefits to which he was entitled.” [citations] We agree with this approach. In interference claims, the
employer’s intent is irrelevant to a determination of liability.. . .
Defendant’s required proof: If the employee establishes a prima facie case, then the employer
bears the burden of establishing that the employee was not entitled to reinstatement, i.e., the
employer must prove that the employee was denied reinstatement for one of the reasons
stated by the FMLA, for example, that the employee would not have remained employed if she
had not taken leave. [Note: This approach is strict statutory interpretation and construction.]
Consequently, the appellate court vacated the judgment in the city's favor and remanded the case to
lower court for a new trial using the proper elements of proof, as stated above, and procedure of
presenting each party’s case.
Sanders v. City of Newport, No. 08-35996, No. 09-35119 and No. 09-35196 (9th Cir., 3/17/11); 2011
U.S. App. LEXIS 5263; courts.gov/datastore/opinions/2011/03/17/08-35996.pdf.
USERRA: no basis for hostile work environment claim
Illustrative: not controlling law. The 5th U.S. Circuit Court of Appeals has held that the language of the
Uniformed Services Employment and Reemployment Rights Act (USERRA) does not create a cause
of action for “hostile work environment” against military service members. Carder v. Continental
Airlines, No. 10-20105 (5th Cir., 3/22/11); 2011 U.S. App. LEXIS 5847;
courts.gov/opinions%5Cpub%5C10/10-20105-CV0.wpd.pdf.
As you will recall, the Act was passed to prohibit civilian employers from discriminating against
employees engaged in military service. It states that employees who perform military service “shall
not be denied initial employment, reemployment, retention in employment, promotion, or any benefit
of employment” on the basis of that service. Courts may broadly or narrowly interpret statutory
language. In this case the trial court interpreted broadly, and the appellate court interpreted narrowly,
focusing on the language of the statute itself, stating that the definition of the term “benefits of
employment” under the USERRA includes any “advantage, profit, privilege, gain, status, account or
interest (including wages or salary. . .)” associated with employment. As a matter of strict statutory
construction and interpretation, it ruled that the plain language of the term “benefits of employment”
does not include the prohibition of harassment, hostility, insults or other similar words or comments. In
other words, it would not read into USERRA rights and prohibitions that are not expressly stated.
Whether our 10th Circuit Court of Appeals would also rule that way is uncertain, so proceed carefully
in situations of possible harassment/hostile work environment involving employees covered by
USERRA.
Here is what occurred in the workplace and the courts:
A group of Continental airline pilots alleged various violations of USERRA, including

allegations that they had experienced a hostile work environment on the basis of their military
service.
The trial court recognized that USERRA “expressly prevents the denial of benefits of
employment to members of the uniformed service by their employers.”
Disagreeing with the trial court, the appellate court construed USERRA narrowly and strictly
and denied the hostile work environment claims of the pilots.
FLSA: complaint defined, “filed any complaint”; judicial interpretation of wording, statute, regulation,
rule, handbook or an email; anti-retaliation provision, protected activity
Controlling law. An ”oral complaint” has been interpreted by the Unites States Supreme Court to be
an activity protected by the FLSA against retaliation. As with so many recent cases, this one points
out the need for employers to train everyone in the company or agency in the latest developments in
the law. Good training can be good prevention, and good prevention is far better than the expense
after a possible violation of having a good defense in court.
Kasten v. Saint-Gobain Performance Plastics Corp., No.09-834, 563 U.S. ____ (USSC, 3/22/11); 179
L. Ed. 2d 379; 2011 U.S. LEXIS 2417; 17 Wage & Hour Cas. 2d (BNA) 577; 22 Fla. L. Weekly Fed. S
874; premecourt.gov/opinions/10pdf/09-834.pdf; Fisher & Phillips LLP article:
/files/28163_SC%20Kasten_Saint-Gobain.pdf
Kevin Kasten had four documented tardiness events for which his employer had warned, counseled
and documented. Kasten alleged the location of the time clocks was illegal and that he had
complained to several superiors and a human resources employee during the approximate period of
October 2006 until he was fired in December 2006. After his employment was terminated he sued the
employer alleging retaliation under the FSLA’s anti-retaliation provision making it unlawful for an
employer:
to discharge or in any other manner discriminate against any employee because such employee has
filed any complaint or instituted or caused to be instituted any proceeding under or related to this
chapter, or has testified or is about to testify in any such proceeding, or has served or is about to
serve on an industry committee . . . .
Both the federal trial court in Wisconsin and the 7th Circuit Court of Appeals refused to interpret the
meaning of the word “file” to mean an oral complaint.
In the 6-2 decision (Justice Kagan abstaining), Justice Breyer wrote that the phrase "filed any
complaint" is to be interpreted broadly so that oral, intra-company complaints constitute protected
activity under the anti-retaliation provision of the FLSA. Two bases were stated for that:
1. Concerning the plain language of the statute, what about the term "filed" as used in the FLSA
anti-retaliation provision. It cited a wide range of sources, including dictionaries, judicial
opinions, statutes and regulations. Justice Breyer wrote "[t]he word filed has different relevant
meanings in different contexts" leading to the conclusion that even oral complaints can be
"filed." He also noted that several federal administrative agencies (including the Department of
Labor and the Equal Employment Opportunity Commission) allow the filing of oral complaints
and further noted that due to "Congress' delegation of enforcement powers to federal
administrative agencies" the Supreme Court could give deference to these administrative
agencies' views of the use of the term.
2. Next, Justice Breyer discussed Congress' intent in originally enacting the FLSA in 1938 within
the context of the employees the act was designed to protect, and he noted that President
Roosevelt, in 1937, called for the passage of a law to "help the poorest of ‘those who toil in
factory'" and cited to the high rate of illiteracy among those workers. Coupling those facts with
the fact that Congress relies on "information and complaints received from employees" to
enforce this anti-retaliation provision led the Supreme Court to conclude that Congress must
have intended the term "filed any complaint" to encompass both oral and written complaints,
and he further noted, many of the employees' which the act was designed to protect would
have great trouble reducing their complaints to writing.
However, be aware that the opinion went on to observe that in order to provide fair notice under the
FLSA:
"[t]o fall within the scope of the anti-retaliation provision, a complaint must be sufficiently clear and
detailed for a reasonable employer to understand it, in light of both content and context, as an
assertion of rights protected by the statute and a call for their protection."
[Still unanswered is this question: Whether the FLSA’s “filed any complaint” language includes
complaints, oral or written, made by employee to his or her employer internally and not involving
notice to at that time, or action by, a governmental agency.]
Constitutional law: First Amendment, blog post, matters of public concern, no extraordinary
circumstances, “employee covenants and non-disclosure agreement”, “client names, addresses, and
credit card numbers”, injunction denied
Illustrative; not controlling law. This case involved disclosure of information about persons listed in
Cambridge Publishing’s Who’s Who publication. Harsharan Sethi was its Director of Management
Information Systems. He was the suspected author of the blog at , which:
indicated that subscribers to Who’s Who might be entitled to a full refund of their membership
fees,
suggested members file complaints with the District Attorney and Attorney General, and
offered to provide information on management personnel, including “their backgrounds,” “their

life styles,” and “their prior run ins with [the] IRS.”
Cambridge petitioned for an injunction to protect personal information, and after much activity in the
state district court, the state appellate court ruled that the disclosures were protected by the First
Amendment because they would be a matter of public concern. This is a complex case involving
sensitive personal information and data, so reading the entire case is very important and also
requires involvement of experienced, competent legal counsel in such a situation. Cambridge Who’s
Who Publishing, Inc. v. Sethi, 009175/10, NYLJ 1201482619238, at *1 (Sup. Ct., Nassau Cty.,
1/25/11); /10JD/Nassau/decisions/INDEX/INDEX_new/BUCARIA/2011FEB/009175-10.pdf.
Privacy: union request for employee contact information denied
Illustrative; not controlling law. Privacy was paramount in this situation: a union had requested that a
California employer disclose an employee’s home telephone number and address without first
advising the employee of the disclosure and having the employee’s permission. This decision is
based on California law, but it illustrates an important point about privacy and disclosure concerns, so
employers in other jurisdictions ought to seriously concern seeking legal advice before responding to
such a request. County of Los Angeles v. Los Angeles County Employee Relations Committee, No.
B217668 (CA. Ct.App.2nd Dist., Div 3, 2/24/11); 192 Cal. App. 4th 1409; 2011 Cal. App. LEXIS 209;
/scholar_case?
case=11953095384640043249&q=County+of+Los+Angeles+v.+Los+Angeles+County+Employee+Relat
Title IX: intercollegiate athletics, equal athletic opportunity, sex discrimination, disparate impact,
elimination of some university teams to comply with law, proportionality criteria, alternative methods
considered, three-part test, statistical evidence
Illustrative; not controlling law. Though Title IX applies to educational institutions, some of the
reasoning might be persuasive authority for other types of discrimination cases involving
proportionality, disparate impact, etc. Because of its limited applicability outside of academic
institutions and questionable persuasive authority, it is noted but not briefed here. Interested parties
are referred to the case by these citations: Equity in Athletics Inc. v. Department of Educ., No. 10-
1259 (4th Cir., 3/8/11); 2011 U.S. App. LEXIS 4493; courts.gov/opinion.pdf/101259.P.pdf.
Class Action: arbitration, waiver, Stolt-Nielsen interpreted
Illustrative law and controlling law. For litigators, read the American Express case for illustrative law
and Stolt-Nielsen for controlling law:
In re American Express Merchants' Litigation, No. 06-1871-cv (2nd Cir., 3/8/11); 2011 U.S. App.
LEXIS 4507; courts.gov/decisions/isysquery/1e97f0d4-ce60-4145-9e85-
3925af5613c9/1/doc/06-1871_opn.pdf#xml=courts.gov/decisions/isysquery/1e97f0d4-ce60-
4145-9e85-3925af5613c9/1/hilite/.
Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., No. 08-1198, ____ U.S. ____; 130 S. Ct. 1758 (2010)
; 176 L. Ed. 2d 605; 2010 U.S. LEXIS 3672; 2010-1 Trade Cas. (CCH) P76,982; 2010 AMC
913; 22 Fla. L. Weekly Fed. S 269; premecourt.gov/opinions/09pdf/08-1198.pdf.
Trade secrets: publicly available ingredients, secret status of source code not invalidated; pilfering,
“Dynamic Expected Utility Model”, Goldman Sachs and Société Générale
Illustrative; not controlling law. For litigators, read Decision Insights, Inc. v. Sentia Group, Inc., No. 09-
2300 (4th Cir., 3/15/11); 2011 U.S. App. LEXIS 5151; courts.gov/opinion.pdf/092300.U.pdf; /file.axd?
file=2011%2f3%2fDecision+Insights+v.+Sentia.pdf;,
It’s the recipe, not the ingredients, that is protected.
NLRB: pre-discharge or post-discharge disparaging remarks – United States Supreme Court

Jefferson Standard case, statements made after discharge, return to work issue, protected concerted
activity, negative blog postings, disparate and discriminatory treatment, security access policy
Controlling law. Disparaging blog remarks made post-discharge were ruled to be illegal grounds
under the National Labor Relations Act for his former employer to refuse to return him to work. It
makes a difference if the comments were made before or after discharge in determining whether
taking an adverse employment action may or may not be ruled discriminatory.
Stephens Media, LLC d/b/a Hawaii Tribune-Herald and Hawaii Newspaper Guild Local 39117,
Communications Workers of America, AFL-CIO, 356 NLRB No 63, confirming order issued February
14, 2011; /wp-content/uploads/2011/02/356_NLRB_63-Hawaii-Tribune-Herald.pdf.
Two cases were involved, a 1953 U. S. Supreme court case and this recent one, which differ in when
the derogatory statements were made.
Background:
The Supreme Court case of Labor Board v. Electrical Workers, No. 15, 346 U.S. 464 (1953), involved
the administrative law decision of the National Labor Relations Board v. Local Union No. 1229:
Upon the facts of this case, the discharge of certain employees by their employer did not constitute
an unfair labor practice within the meaning of §§ 8(a)(1) and 7 of the Taft-Hartley Act; their discharge
was "for cause" within the meaning of § 10(c) of that Act, and the action of the Labor Board in not
requiring their reinstatement is here sustained. Pp. 346 U. S. 465-478.
(a) In the circumstances of this case, in which the employer was an operator of a radio and television
station, the distribution by the employees in question of handbills which made public a disparaging
attack upon the quality of the employer's television broadcasts, but which had no discernible relation
to a pending labor controversy, was adequate cause for the discharge of these employees. Pp. 346
U. S. 467-477.
(b) The fortuity of the coexistence of a labor dispute affords these employees no substantial defense.
Pp. 346 U. S. 476-477.
(c) There is no occasion to remand this cause to the Board for further specificity of findings, for even if
the employees' attack were treated as a concerted activity within § 7 of the Act, the means used by
them in conducting the attack deprived them of the protection of that section when read in the light
and context of the purpose of the Act. Pp. 346 U. S. 477-478.
Current case reasoning and ruling:
The difference for the NLRB between the two cases was that the disparaging remarks made by the
employee in the recent case were made after he was fired, not before, i.e., not during his
employment, as in the Jefferson Standard case. In Stephens Media, the critical issue for the NLRB
was whether the employee’s post-discharge remarks could form the basis of a denial of reinstatement
or could cut-off a claim for back pay. In deciding those remarks could not, the NLRB stated that,
“[s]imply put, employees who are unlawfully fired . . . often say unkind things about their former
employers [after the fact]”, and therefore, the NLRB ruled, employers who violate the law should not
be permitted to escape a full remedy for the effects of their unlawful actions based on the fired
employees’ “natural human reactions” to those adverse employment actions.
Protecting Trade Secrets Through Employee Surveillance: Risky Business: Computer Fraud & Abuse
Act (CFAA); trade secrets; Electronic Communications Privacy Act (ECPA); Stored Communications
Act 9SCA); Uniform Trade Secrets Act (UTSA)
Interesting and informative article of March 14, 2011 by Michael R. Greco, a partner in the Employee
Defection & Trade Secrets Practice Group at Fisher & Phillips LLP. /post/2011/03/14/Trade-Secret-
Protection-Through-Employee-Surveillance-Risky-Business.aspx
FMLA: Free DoL agency forms to help you avoid mistakes
Resources from the Department of Labor:
Return to work ideas: http://www.dol.gov/odep/return-to-work/
DoL official forms: http://www.dol.gov/whd/fmla/
Retaliation: “continuing violation” doctrine, timely filing, sexual harassment, hostile work environment,
threats, humiliation, constructive discharge, emotional distress, jury verdict, proper instructions,
verdict upheld
Controlling law. Two major points were made by this case: (1) the doctrine of “continuing violation”
was extended from its application in hostile work environment cases to retaliation cases, and (2) the
doctrine of “constructive” discharge was not only reaffirmed, the appellate court said it would not
second guess the jury.
Continuing violation:
When deciding if a discrimination claim has been timely filed, NM courts distinguish between two
types of discrimination:
1. A “discrete act” would be termination, failure to promote, denial of transfer, etc., that “take[s]
place at an identifiable time.”
2. A hostile work environment claim “involve[s] repeated conduct over days or years”. Under the
“continuing violation” doctrine, if a claimant files within 300 days of any instance of the alleged
misconduct, then NM courts may allow evidence and consideration of all instances, even if
they occurred over the course of several years.
Retaliation claims have differed from discrimination claims, and are a separate claim for relief.
Instead of having to prove discrimination, the claimant must prove:
1. he or she engaged in a protected activity, such as complaining of discrimination,
2. he or she suffered an adverse employment action, and
3. there is a causal connection between the two events.
The appellate court ruled the district court correctly applied the continuing violation doctrine and
correctly instructed the jury on that theory of liability.
Constructive discharge verdict:
The constructive discharge theory of liability was reaffirmed, and the appellate court ruled that the jury
had been fully and properly instructed on the applicable law, heard and weighed the evidence, and
that there was substantial evidence to support its verdict of $94,653.93 for lost wages and $30,000 for
emotional distress, and therefore it said it would not second guessing the decision of the jurors.
Charles v. Regents of N.M. State Univ., (11/4/11); 2010-NMCA-133; 2010 N.M. App. LEXIS 133; 110
Fair Empl. Prac. Cas. (BNA) 1252; /scholar_case?
case=4510195608191118953&hl=en&as_sdt=2&as_vis=1&oi=scholarr.
FLSA: overtime calculation, “regular rate” concept
Controlling law. The City of Albuquerque won this complex overtime pay case. Because of its
complexity and very technical nature, it will not be briefed and a careful reading of all of the details is
strongly recommended. A recurring theme throughout the opinion is the concept that the FLSA is a
floor on wages rather than a supplement to them to be negotiated during collective bargaining.
Chavez v. City of Albuquerque, Nos. 09-2274 & 09-2288 (10th Cir., 1/12/11); 2011 U.S. App 622; 630
F.3d 1300; 2011 U.S. App. LEXIS 622; 17 Wage & Hour Cas. 2d (BNA) 110;
Title VII: hostile work environment, insufficient evidence of discrimination, lack of proof of
discriminatory animus, Title VII is not a “general civility code”
Controlling law. Even if the Black employee of African origin felt insulted, suffered hurt feelings, or
found some remarks offensive, the conduct was found not to “demonstrate either that any alleged
harassment was sufficiently severe, pervasive or objectively offensive as to create an abusive

working environment, or that he was harassed because of his race or national origin.” Nor did the
employee show any discriminatory animus. As courts have stated many time over the years, Title VII
is not a general civility code. Musungayi v. Whirlpool Corp., No. 10-5060 (10th Cir., 11/4/10); 2010
U.S. pp. LEXIS; courts.gov/opinions/10/10-5060.pdf.
ADEA: insufficient evidence of discrimination, failure to show replaced by younger person
Controlling law. For 26 years Theresa Kosak worked as a financial counselor in the patient access
department of the St. Mary-Corwin Medical Center, owner and operator of Catholic Health Initiatives
of Colorado. Leah Willey became director of the department in February of 2007, and within a week
she began receiving complaints about Kosak. Her investigation included speaking to current and
former employees and physicians, plus holding a meeting with Kosak. Based on the results of the
investigation Kosak was fired. Her replacement was the same age, 49. Summary judgment was
granted in favor of the employer and affirmed on appeal. Usually, an age claim requires a showing of
replacement by a younger worker, though if there are “extraordinary circumstances”. With this in
mind, in a footnote in the opinion the court observed:
. . . evidence, circumstantial or direct, from which a fact-finder might reasonably conclude that the
employer intended to discriminate in reaching the decision at issue” or that the employer treated the
plaintiff “less favorably than younger employees.” Id. While a reduction-in-force is the most obvious
example of the need for a different formulation of the fourth element of a prima facie claim, there may
be other circumstances that similarly require the reformulation of that element.
Kosak v. Catholic Health Initiatives of Colo., No. 09-1526 (10th Cir., 10/28/11); 2010 U.S. App. LEXIS
22349; 110 Fair Empl. Prac. Cas. (BNA) 1141; courts.gov/opinions/09/09-1526.pdf.
Electronic records: electronically stored information (ESI), forensic evidence, preservation of data and
records relevant to claim, spoliation, court sanctions, adverse ruling, federal Stored Communications
Act, and much more
Illustrative; not controlling law. Several federal laws and numerous state laws affect ESI, and failure to
comply with them can result in serious consequences for employers. One chilling example is the
possibility that could result is an adverse jury instruction. If an employer failed to preserve evidence,
or even worse, destroyed it, one consequence could be a jury instruction that the jurors may assume
the missing ESI was unfavorable to the employer.
Reading this Pure Power Boot Camp case and conferring with legal counsel about preserving ESI
could well prevent penalties and adverse rulings by taking steps well before litigation might arise. The
same applies to being very cautious about deciding whether you may lawfully access an employee’s
personal e-mails. Further, employers need to check their policies about computer usage (you do have
them, don’t you?) to ensure they are current and clearly stated, e.g., employees should not expect
that their use of company computers will be considered private -including all Internet activity and,
specifically, web-based e-mail accounts to the extent they are accessed via the employer’s computer.
Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC, No. No. 08 Civ. 4810 (THK)
(S.D.N.Y., 12/22/10); /scholar_case?
case=7281027527677082985&q=Pure+Power+Boot+Camp,+Inc.+v.+Warrior+Fitness+Boot+Camp,+LL
In this case, two employees were in the process of opening a fitness center that would compete with
the company they were then working for. One of the employees quit and the other was fired, and
following that the employer accessed and printed emails from the fired employee’s web-based e-mail
accounts. The employer claimed that the employee had saved his username and password to the
employer’s computer system, though this was a disputed contention. Litigation followed:
The employer filed suit in New York state court to enforce a non-compete agreement and
prevent the employees from opening their competing business.
The state court denied his request for an injunction.
The employees removed the case to federal court and counterclaimed against the employer
based on the allegedly improper access of their e-mails.
The federal court granted the motion of the employees to return all e-mails and prohibit their
use in the case.
Prohibiting use of the e-mails was based on its finding that accessing the employee’s emails violated
the Stored Communications Act (SCA), which prohibits, among other things, unauthorized access of
e-mail correspondence that has been saved or stored once sent.
Damages of $4,000 were awarded to the employees. Even worse, it turned out the e-mails were on
the employer’s business computers as well as the username and password to access them, and
those e-mails supported the employer’s claim that the employees had been preparing to compete
during their employment and had gone on to open a competing business.
[Ouch! Lesson: Be very cautious about accessing employee electronic communications and sites.]
ADA/Rehabilitation Act: requirement of note from physician after sick leave or restricted duty, nature
of illness, capable of returning to duty, constitutional right to privacy, summary judgment in favor of
employer
Illustrative; not controlling law. The City of Columbus, Ohio, required by one of its directives that
employees returning from work must provide to their immediate supervisor a note from their physician
stating the nature of their illness and whether the employee is capable of retuning to duty. Employees
sued based on allegations of violation of federal disability laws and violation rights of privacy. The 6th
Circuit Court of Appeals reversed the summary judgment in favor of the employees and nullified the
injunction issued against the city. Lee v. City of Columbus, Ohio, No. 09-3899 (6th Cir. Feb. 23, 2011);
2011 U.S. App. LEXIS 3508; 2011 FED App. 0058P (6th Cir.); courts.gov/opinions.pdf/11a0058p-
06.pdf.
ADA/Federal Rehabilitation Act
These two acts are closely related and the Rehabilitation Act applies to any program or activity
receiving federal money. The appellate court stated that though the Rehabilitation Act addresses the
confidentiality of medical records, it does so only in the context of pre-employment examinations, and
the ADA’s limitations on the disclosure of medical information are incorporated by reference into the
Rehabilitation Act. However, an important point is the significant difference between the two statutes:
the ADA prohibits discrimination “because of” a disability, while the Rehabilitation Act only prohibits
discrimination “solely on the basis of” a disability. Accordingly, an employer who makes a decision
because of an employee’s disability does not violate the Rehabilitation Act if the disability is not the
sole reason for the decision. The court said:
The mere fact that an employer, pursuant to a sick leave policy, requests a general diagnosis that
may tend to lead to information about disabilities falls far short of the requisite proof that the employer
is discriminating solely on the basis of disability.
Remembering this distinction will be important for employers when dealing with this kind of situation
and when creating policies relating to return from sick leave. The opinion discusses some of this in
detail, so read the case so you don’t miss anything of value.
Constitutional right to privacy
No violation was found by the appellate court. The Sixth Circuit “has developed and applied [an]
approach to assessing informational privacy claims” that requires plaintiffs to show “the asserted
privacy interest implicates a fundamental right”, and it has recognized an “informational privacy
interest of constitutional dimension in only two instances: (1) where the release of personal
information could lead to bodily harm, and (2) where the information released was of a sexual,
personal, and humiliating nature.” Determining the present case did not implicate either of these
instances, the Court held there is no “informational-privacy concern of a constitutional dimension.”
Comment on this case by the lawyers of Jackson Lewis cautions that consideration needs to be given
to possible violation of the Genetic Information Nondiscrimination Act (GINA), and that article can be
found at /resources.php?NewsID=3562. Jackson Lewis is a regular contributor to the Employment
Law Information Network at the URL link show in the box at the top of this database.
ADA: drug testing, one-strike rule, no ADA violation, disparate impact, no ADA discrimination
Illustrative; not controlling law. This is a case to be aware of, but perhaps not rely on. Whether this
case might provide persuasive authority in other jurisdictions is questionable, plus it was a 2-1
decision with a credible dissenting opinion, so proceed with caution.
Under the policy of the Pacific Maritime Association, testing positive for drugs or alcohol can result in
being forever barred from consideration for employment. Thus, this rule gives no leeway for possible
rehabilitation, and it amounts to a ban for life on a type of employment.
In affirming summary judgment for the employer, this 9th Circuit opinion stated (1) the one-strike rule
applies to anyone who fails a drug/alcohol test, not just addicts or recovering addicts, and (2) the
employer also had no knowledge that the applicant was a recovering addict, only that he previously
had failed the test. The dissenting judge noted that the applicant ought to have been allowed to try his
disparate impact claim of the effect on recovering alcoholics or drug abusers. However, the applicant
did not support that argument with statistical proof and, thus, the court did not allow his claim to
proceed. Lopez v. Pacific Maritime Association, No. 09-55698 (9th Cir., 3/2/11); 2011 U.S. App. LEXIS
3923; courts.gov/datastore/opinions/2011/03/02/09-55698.pdf.
USERRA: decisionmaker, influence with or over, “cat’s paw” doctrine
Controlling law, plus probable extension of the reasoning to other cases, such as those involving
Title VII and other discrimination laws. The legal point is the nature and extent of the “cat’s paw” legal
doctrine *.
Staub v. Proctor Hospital, No. 09–400. ____ U.S. ____ (USSC, 3/1/11); 31 S. Ct. 497; 178 L. Ed. 2d
284; 2010 U.S. LEXIS 8000; 79 U.S.L.W. 3226; premecourt.gov/opinions/10pdf/09-400.pdf.
In this unanimous decision the U.S. Supreme Court held that an employer may be liable under the
Uniformed Services Employment and Reemployment Rights Act (USERRA) when the discriminatory
actions of an employee who doesn’t make employment decisions influences an adverse employment
action decision made by another employee who is authorized to take that action (i.e., the
“decisionmaker”). The Court noted that
. . .if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor
to cause an adverse employment action, and if that act is a proximate cause of the ultimate
employment action, then the employer is liable under USERRA.
The cat’s paw doctrine appears in many cases, so it seems likely that the ruling in Staub will be
applied many other discrimination cases in the future. Justice Scalia noted:
The statute [USERRA] is very similar to Title VII, which prohibits employment discrimination “because
of . . . race, color, religion, sex, or national origin” and states that such discrimination is established
when one of those factors “was a motivating factor for any employment practice, even though other
factors also motivated the practice.” 42 U.S.C. §§2000e–2(a), (m) (Slip Opinion, page 5).
Here are facts noted by the Court as important:
Staub’s supervisors acted within the scope of their employment when they took the actions
that allegedly caused the decision-making manager to fire Staub;
there was evidence that the supervisors’ actions were motivated by their hostility toward his
military service;
there was evidence that the supervisors’ actions played a role in the decisionmaker’s decision
to fire Staub; and
there was evidence that the supervisors’ intention was to get Staub fired.
Read the entire case for all of the factual and legal details.
[Note: Best practices probably require that terminations ought to be for cause based on adequately
documented efforts of warning and counseling for deficient performance by an employee, or of
misconduct clearly necessitating immediate dismissal. As a practical matter these days relying “at-
will” employment status can be of little or no value when taking an adverse employment action. And
this may also be the case when conducting investigations.
[* See Aesop’s fable: /aesopica/milowinter/61.htm]
Technology: stolen computer contained sensitive encrypted employee data, employer provided
protection to employees, fear of losses, no losses, facing a “credible threat of harm”, standing to sue
Illustrative; not controlling law. Is the possibility of something bad happening a sufficient basis for a
court to find that a plaintiff has standing (sufficient legal cause) to sue? Maybe. This decision is not
controlling law in our jurisdiction, but it might be persuasive authority if a similar situation arose here.
Accordingly, it is essential to have strong security of sensitive employee information and the hardware
on which it is stored.
Krottner v. Starbucks Corp., No. 09-35823, No. 09-35824 (9th Cir., Dec. 14, 2010); 2010 U.S. App.
LEXIS 26795; 31 I.E.R. Cas. (BNA) 1123; courts.gov/datastore/opinions/2010/12/14/09-35823.pdf.
Quoting from the 9th Circuit Court of Appeals opinion:
On October 29, 2008, someone stole a laptop from Starbucks. The laptop contained the unencrypted
names, addresses, and social security numbers of approximately 97,000 Starbucks employees.
On November 19, 2008, Starbucks sent a letter to Plaintiffs-Appellants and other affected employees
alerting them to the theft and stating that Starbucks had “no indication that the private information has
been misused.” Nonetheless, the letter continued,
As a precaution, we ask that you monitor your financial accounts carefully for suspicious activity and
take appropriate steps to protect yourself against 20060 KROTTNER v. STARBUCKS
CORPORATION potential identity theft. To assist you in protecting this effort [sic], Starbucks has
partnered with Equifax to offer, at no cost to you, credit watch services for the next year.
Krottner and Shamasa allege that after receiving the letter, they enrolled in the free credit watch
services that Starbucks offered. Krottner alleges that she “has been extra vigilant about watching her
banking and 401(k) accounts,” spending a “substantial amount of time doing so,” and will pay out-of
pocket for credit monitoring services once the free service expires. Lalli alleges that he “has spent
and continues to spend substantial amounts of time checking his 401(k) and bank accounts,” has
placed fraud alerts on his credit cards, and “has generalized anxiety and stress regarding the
situation.” Shamasa alleges that his bank notified him in December 2008 that someone had
attempted to open a new account using his social security number. The bank closed the account, and
Shamasa does not allege that he suffered any financial loss.
Plaintiffs-Appellants filed two nearly identical putative class action complaints against Starbucks,
alleging negligence and breach of implied contract. On August 14, 2009, the district court granted
Starbucks’s motion to dismiss, holding that Plaintiffs-Appellants have standing under Article III but had
failed to allege a cognizable injury under Washington law. Plaintiffs-Appellants appealed, and we
have jurisdiction under 28 U.S.C. § 1291.
Plaintiffs-Appellants Laura Krottner, Ishaya Shamasa, and Joseph Lalli appeal the district court’s
dismissal of their negligence and breach of contract claims against Starbucks Corporation. Plaintiffs-
Appellants are current or former Starbucks employees whose names, addresses, and social security
numbers were stored on a laptop that was stolen from Starbucks. Their complaints allege that, in
failing to protect Plaintiffs- Appellants’ personal data, Starbucks acted negligently and breached an
implied contract under Washington law.
***
Affirming the district court, we hold that Plaintiffs- Appellants, whose personal information has been
stolen but not misused, have suffered an injury sufficient to confer standing under Article III, Section 2
of the U.S. Constitution. We affirm the dismissal of their state-law claims in a memorandum
disposition filed contemporaneously with this opinion.
FMLA: unclear, vague or ambiguous request, regulations and duty to inquire for clarification,
employee’s failure to reply to legitimate inquiries, claim dismissed
Illustrative; not controlling law. What is the difference between diligent required inquiry and pestering
calls? Preventing FMLA claims is essential, and adequate training can help avoid problems and
expensive litigation. This case might be one more illustrative situation to include in your FMLA training
of everyone in your company or agency.
Righi v. SMC Corporation of America, No. 09-1775 (7th Cir., 2/14/11): 2011 U.S. App. LEXIS 2822;
courts.gov/tmp/5S0L32CP.pdf.
Differences: Why and how are the calls being made?
A week or so ago the case of Terwilliger v. Howard Memorial Hospital ruled that weekly phone
calls by the employee’s supervisor asking when the maintenance would return to work from
her FMLA leave might be found by a jury to have interfered with her FMLA rights, and so the
employer lost its summary judgment motion and had to proceed to jury trial.
The Righi case involves a company that repeatedly called its employee to inquire if he was
actually asking for FMLA leave.
What’s the difference?
Facts in Righi:
This SMC Corp. salesman was his mother’s primary caretaker for his mother.
She suffered complications from diabetes.
He often took FMLA leave to care for her.
On the occasion in question his mother had accidentally overdosed on her medication.
He was scheduled to attend a two-week training session in Indianapolis from July 9 through
July 21, 2006.
On July 11, during at the session, he received a phone call informing him that his mother had
gone into a diabetic coma.
Righi told a co-worker that he was leaving to return home, and he asked the co-worker to pass
along the information.
Driving home took four hours, and by then his mother had stabilized.
At no time that day did Righi contact King, his sales manager, although King made numerous
unanswered calls to Righi’s cell phone, which had been switched off.
After leaving work mid-shift on July 11, he sent an unclear e-mail to King the morning of July
12, stating:
I need the next couple days off to make arrangements in an intermediate care facility
for my Mother. . . . I do have the vacation time, or I could apply for the family care act,
which I do not want to do at this time.
I hope you can understand my situation and approve this emergency time off. I will be
very busy the next couple of days . . . so I might be slow getting back to you.
When King received that email he made numerous attempts to contact Righi over the
following seven days, which was well over ten times during that period. He even left a
message with Righi’s roommate that Righi needed to call him.
On July 19, Righi finally returned his calls, admitting that he turned off his cell phone for a
week.
Subsequently, Righi was terminated for being absent for more than two days in violation of
company policy and FMLA regulations.
Righi sued SMC, alleging it had interfered with his right to take FMLA leave, and he lost.
Court’s reasoning and ruling: If an employee's request for medical leave is vague or is unclear, the
Family and Medical Leave Act regulations, 29 C.F.R. 825.303(b) requires the employer to question
the employee further to determine whether the absence potentially qualifies under the FMLA. When
the employee fails to respond to these reasonable inquiries, the employee may lose the right to FMLA
protection. Thus, the employers action required by FMLA regulations was not interference, and the
employee’s failure to respond or stay in touch in violation of company policy was valid ground for
terminating his employment because he made "no effort whatsoever" to keep SMC apprised of his
fluid situation and was absent and out of touch with his supervisor for more than a week.
FMLA, ADA: addiction treatment, substance abuse, differentiate between abuse and treatment
Illustrative; not controlling law. Differentiating between substance abuse and treatment for that
condition can be difficult, so employers need to carefully examine and analyze leave, absence and
tardiness related to this problem. Consider these factors:
Absence because of the employee's use of the substance, rather than absence for treatment,
does not qualify for FMLA leave. 19 C.F.R. § 825.119(a) – for example is it the behavior or the
condition, such as off work because of these possibilities:
in scheduled treatment,
in emergency relapse treatment, or
too drunk to come to work.
Employers need to pay attention how they communicate with or to the employee about how
much leave there may be or not be under FMLA.
If corrective action or adverse employment action may be necessary in such a situation, i.e.,
the employer must be consistent, and a practice of warning, counseling and documenting
ought to proceed any adverse employment action, especially if it is termination. Being lax and
then firing in impatience can be costly.
Read this Texas case for the details and think critically about how things could have been handled
better and how you would handle future situations in your workplace. Picarazzi v. John Crane, Inc.,
No. 2:10-cv-00063 (U.S.D.C. Corpus Christi Div., 02/07/11); /scholar_case?
case=2504265269094948652&hl=en&as_sdt=2&as_vis=1&oi=scholarr; /dlrcases.nsf/id/jaca-
8dvpld/$File/Picarazzi.pdf.
FMLA: too frequent contact by employer, possible pressure, possible interference with leave rights;
additional complicating factors
Illustrative; not controlling law. There difference between having a leave policy that requires an
employee to call in regularly when off on leave, and calling an employee too often to ask when he or
she anticipates returning. On the one hand the FMLA provides eligible employees with up to 12
weeks of unpaid leave for qualifying conditions, but on the other hand it prohibits employers from
interfering with an employee’s rights under the Act, and under FMLA regulations, interference
includes “discouraging” an employee from using FMLA leave. Balancing an employee’s leave rights
with an employer’s concern with when an employee might return is difficult because an employer is
concerned with keeping the operation functioning well. One consideration might have to do with how
critical the person on leave is to the operation, e.g., someone in a routine position and a major player
who fits the “key person” exception in the FMLA [/ez/html/100207txtb.html].
In this federal district court case in western Arkansas weekly phones calls to a maintenance worker
by her immediate supervisor allegedly caused the employee to feel that she was being pressured to
return to work and that her job was in jeopardy. Complicating this situation further was the employer’s
activity in dealing with a theft problem that the employee may have been implicated in. At trial the
issue will be whether the nature and frequency of the weekly phone calls amounted to interference
with FMLA leave. Terwilliger v. Howard Memorial Hospital, No. 09-CV-4055 (WDAK, 1/27/11);
/scholar_case?
case=12749087681111817538&q=Terwilliger+v.+Howard+Memorial+Hospital&hl=en&as_sdt=2,32&as_v
Title VII: hostile work environment, evidence, severe or pervasive, McDonnell Douglas test;
retaliation, legitimate non-discriminatory reason for adverse employment action
Controlling law. This case is cited for its comprehensive review of the applicable legal theories and
definitions, which are conveniently located in one place. The facts are numerous and detailed and
can be read in the full opinion linked below. Here is the appellate court’s recitation of the applicable
law [set forth in portions edited for ease of readability – full legal citations available in the unedited
opinion]:
III.
"Sexual harassment is actionable under a hostile work environment theory when the harassing
conduct is sufficiently severe or pervasive to alter the conditions of the victim's employment and
create an abusive working environment." * * * This is true regardless of whether the environment is
created by a fellow employee or nonemployee, such as a customer, because "the employer ultimately
controls the conditions of the work environment."
In cases where a plaintiff claims harassment by a nonemployee, we apply a negligence theory. * * *

"The negligence analysis can be divided into two separate inquiries, looking first, into the employer's
actual * * * or constructive knowledge of harassment, and second, into the adequacy of the
employer's remedial and preventative responses."
"With regard to knowledge, a plaintiff may prove actual knowledge based on her reports of
harassment to management-level employees or constructive knowledge based on the pervasiveness
of the sexual hostility within the working environment."
There is "no bright-line rule for measuring the [adequacy] of an employer's response." Instead, we
look at "whether the response was reasonable under the circumstances." * * * "Key factors in that
determination are the promptness and effectiveness of any action." * * * Because "[i]t is not always
possible for an employer to completely eliminate offensive behavior, . . . the effectiveness inquiry
looks not to whether offensive behavior actually ceased but to whether the remedial and preventative
action was reasonably calculated to end the harassment
IV.
In cases where a Title VII plaintiff relies on indirect or circumstantial evidence to prove retaliation, we
examine the claim under the burden-shifting framework set forth in McDonnell Douglas Corp. v.
Green. * * * Under this framework, the plaintiff carries the initial burden of establishing a prima facie
case, which requires her to "demonstrate (1) that [s]he engaged in protected opposition to
discrimination, (2) that a reasonable employee would have found the challenged action materially
adverse, and (3) that a causal connection existed between the protected activity and the materially
adverse action." * * * Once a plaintiff meets her initial burden, the burden shifts to the employer to
articulate a legitimate, non-discriminatory reason for the adverse action. If the defendant makes this
showing, the burden shifts back to the plaintiff to demonstrate the proffered explanation is pretext.
Aguiar v. Bartlesville Care Center, No. 10-5002 (10th Cir., 1/28/11); 2011 U.S. App. LEXIS 1804;
Title VII: hostile work environment defined
Controlling law. This case is cited for a review of the definition a hostile work environment: * * * "a
plaintiff must show that a rational jury could find that the workplace is permeated with discriminatory
intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the
victim's employment and create an abusive working environment." Shaw v. Tulsa Dynaspan Arrow
Concrete, No. 10-5066 (10th Cir., 1/28/11); 2011 U.S. App. LEXIS 1867; courts.gov/opinions/10/10-
5066.pdf.
FMLA: validity of medical certification, reasonable doubt, alleged faith healing vacation; summary
judgment for the employer affirmed
Illustrative; not controlling law. What is valid FMLA medical leave, and what may an employer do to
obtain other certification information in a questionable situation?
Validity: The employer questioned the validity of the employee’s seven-week trip to the
Philippines with her husband, who was suffering from multiple health problems. During their
trip they visited family and friends, attended mass and met with officials of the Catholic
Church. The First Circuit Court of Appeals ruled that this was not medical care for the
employee’s husband within the meaning of the FMLA, and thus concluded that the employer
did not violate the FMLA by terminating the employee for taking unapproved leave.
Certification: As to the basis for that decision, the court ruled that it was not an FMLA violation
for the employer to question the medical certification under these circumstances. When faced
with a questionable medical certification purporting to support the type and need to care for a
family member, an employer is authorized to request the employee to submit a second
medical certification from the health provider who was treating the family member and was
more familiar with the potential need for medical leave.
In this case the employer’s actions were held not to be violations of the FMLA. Tayag v. Lahey Clinic
Hosp., Inc., No. 10-1169 (1st Cir., 1/27/11); 2011 U.S. App. LEXIS 1697; [typographical corrections to
the following initial opinion] courts.gov/cgi-bin/getopn.pl?OPINION=10-1169E.01A; [original PDF
opinion with typographical errors] courts.gov/cgi-bin/getopn.pl?OPINION=10-1169P.01A.
NLRA: union, “protected concerted activity”, only one employee involved
Controlling law. The National Labor Relations Act covers all employees - unionized or non-unionized
- and grants them the right to engage in protected concerted activity concerning matters of the terms
and conditions of employment, such as they talk with each other about their wages, hours and
working conditions, and an employer may not discipline or discriminate against employees who
engage in such discussions.
In this case, one employee was fired after complaining to her supervisor about a perceived wage
disparity, which she had not discussed the issue with fellow employees. The common interpretation of
“concerted activity” has been activity engaged in by two or more people, and that was the reasoning
of the Administrative Law Judge (ALJ) in ruling that the employer did not violate the NLRA because
the employee had not discussed the wage issue with her co-workers and thus had not engaged in
protected concerted activity. However, The National Labor Relations Board reversed the ALJ and
ruled that Parexel fired the employee as a “preemptive strike” in order to prevent her from discussing
the wage issue with her co-workers. As the NLRB explained:
It is beyond dispute that an employer violates Section 8(a)(1) by threatening to terminate an

employee in order to prevent her from exercising her Section 7 rights, for example, by discussing
wages with co-workers. It follows that an employer similarly violates Section 8(a)(1) by simply
terminating the employee in order to be certain that she does not exercise her Section 7 rights.
Indeed, the Board has often held that an employer violates the Act when it acts to prevent future
protected activity. (footnote omitted)
Whether this NLRB ruling will stand up if challenged in court remains to be seen. For the time being,
though, it is a ruling to be aware of and comply with. Parexel International, LLC, 356 NLRB No. 82
(2011); http://www.nlrb.gov/shared_files/Board%20Decisions/356/v35682.pdf.
Title VII: discrimination, race, age, three-step evidentiary proof; retaliation
Controlling law. This former employee’s case failed in both the trial court and the 10th Circuit Court
of Appeals. Altus Gardner, male African-American had serious performance deficiencies that were
found to be the reason for his resignation, not racial discrimination. His retaliation claim also failed.
Gardner v. Sears Holding Corp., No.10-5017 (10th Cir., 10/15/10; not officially published by the court);
2010 U.S. App. LEXIS 21315; courts.gov/opinions/10/10-5017.pdf.
Discrimination:
Three evidentiary steps are required in this type of discrimination claim:
1. the employee must establish an initial prima facie case that as an employee within a statutorily
protected class he was treated differently from “similarly situated” employees, and then
2. the employer would need to show it had a legitimate, non-discriminatory reason for its adverse
employment action(s), and if it did, then
3. the employee must then prove that reason was merely a pretext for discrimination.
His race claim failed because evidence showed his store received negative performance reviews
[employer’s valid business reason], whereas store managed by non-African-Americans did not.
Similarly, his age discrimination claim failed for the lack of similar proof of age bias. The appellate
court noted that even if he had proved a prima facie case, the employer’s evidence of poor
performance was sufficient.
Retaliation:
His proof also failed here because even if he had proved a prima facie case, he failed to show that
Kmart’s non-discriminatory explanations for its actions was not legitimate, i.e., there were valid
negative performance evaluations.
Title VII: discrimination, race, untimely filing, intake questionnaire; retaliation; minimal acts, minor
annoyances, petty slights
Controlling law. Proof of racial discrimination failed, as did proof of retaliation.
Riley v. Tulsa County Juvenile Bureau, ex. Rel. Tulsa County Bd. of Comm’rs, No. 10-5038 (10th Cir.,
11/30/10; not officially published by the court); 2010 U.S. App. LEXIS 24547;
Untimely discrimination claim:
The worker failed to file most of his claims within the 300 day filing requirement. His one remaining
claim was without merit because it was based on action taken after he had resigned, and thus was
not a basis for his resignation. Further, opposition to his unemployment compensation claim was not
protected by Title VII because any alleged conduct of his supervisor in the unemployment hearing
process did not affect either his employment or alter the conditions of his workplace [because he was
no longer there], and thus was outside of Title VII’s scope of matters within the workplace [an
important distinction].
Retaliation:
Here his evidence consisted of a delay in reimbursing his mileage claim. That claim was initially
rejected because it was on the wrong form, but it was soon approved. This was found to be a petty
slight or minor annoyance that did not rise to the level of a serious retaliation contemplated to be
covered by Title VII’s anti-retaliation provisions.
WARN Act: mass layoff, 60-day notice, reasonable calculation, definitions, “employment loss”,
exceptions, employees who have left
Illustrative; not controlling law. The Worker Adjustment and Retraining Notification Act (WARN) was
enacted to provide employees of a possible mass layoff in order to allow them time to look for other
work, etc. WARN and its regulations contain so many exceptions and special definitions regarding
who is an employee, who counts as a layoff, etc., that employers definitely need to seek expert legal
advice if a business is possibly facing a large layoff or closing. In this case the main issues were
whether (1) 50 or more employees were involved and (2) how to count the 60 days required advance
notice. The notice stated an anticipated shutdown date of October 7, and the employer argued that by
that date all the employees had left employment after being told the business is going to shut down.
The ruling of the 9th Circuit Court of Appeals was that when employees leave employment after being
told the business is going to shut down, that is not a "voluntary departure" exception to the
"employment loss" definition. Whether this case provides persuasive authority and reasoning for other
jurisdictions is arguable and uncertain, so take this notice that employers need to confer with legal
counsel if a large shutdown is a possibility. Collins v. Gee West Seattle LLC, No. 09-36110 (9th Cir.,
1/21/11); 2011 U.S. App. LEXIS 1169; courts.gov/datastore/opinions/2011/01/21/09-36110.pdf.
Title VII; third-party claim retaliation allowed
Controlling law: The United States Supreme Court allowed a third-party retaliation claim to be
brought by the fiancé of a woman who filed a gender discrimination claim with the EEOC. The
retaliation was against him, termination of his employment, and he filed for violation of the anti-
retaliation provisions of Title VII. Both the trial court and the Sixth Circuit Court of Appeals dismissed
his lawsuit on the grounds that it was not based on a legally recognized theory of law.
Thompson v. North American Stainless, LP, No. 09-291, ____U.S. ____, (6/29/10, but published
1/24/11); 130 S. Ct. 3542; 177 L. Ed. 2d 1121; 2010 U.S. LEXIS 5525; 79 U.S.L.W. 3007;
Here is the analysis of the Justices:
1. Does Title VII prohibit an employer from retaliating against an employee based on the
employee's close association with an individual who engaged in protected activity? Yes, The
Court reasoned if Thompson's claims were true, termination of his employment violated Title
VII because "Title VII's antiretaliation provision prohibits any employer action that 'well might
have dissuaded a reasonable worker from making or supporting a charge of discrimination.'"
Further, the Court noted that it thought it was "obvious that a reasonable worker might be
dissuaded from engaging in protected activity if she knew that her fiancé would be fired."
2. Next, if so, could Thompson could sue NAS for retaliation under Title VII, and it concluded that
Thompson fell within the "zone of interests protected by Title VII" because the statute is
supposed to protect employees from employers' unlawful actions. The Court went on to state
that if the facts alleged by Thompson were true, injuring him was NAS' intended means of
harming his fiancée.
The Roberts court tends to rule narrowly, i.e., not announcing law unnecessary to decide the strict
issues before it. Thus it didn't "identify a fixed class of relationships for which third-party reprisals are
unlawful." Nonetheless, the Court did say that firing an employee's close family member as a means
of retaliation would most likely be unlawful.
Public Sector: contract employees, background checks, extent of inquiry regarding drug treatment or
counseling and other negative "general behavior or conduct" information
Controlling law. Employees of the federal government are protected by rights granted in the United
States Constitution and Amendments. Issues arise relating to the balance between the privacy rights
of its employees and the right of the government’s interests in managing its workforce. The Court
avoided discussing or answering the interesting issue of whether the information was actually
protected by a Constitutional right to privacy. Rather, it recognized the precedent of thirty years that
created a broad Constitutional interest in avoiding disclosure of personal matters, but it declined to
limit, expand or even address the contours of that right.
Caution: As a matter of good business practice, it is essential for employers to carefully protect all
such information in order to fully respect the privacy rights of employees.
Nelson v. NASA, No. 09-530 ____ U.S. ____ (2010); 130 S. Ct. 1755; 176 L. Ed. 2d 211; 2010 U.S.
LEXIS 2298; 78 U.S.L.W. 3521; premecourt.gov/opinions/10pdf/09-530.pdf.
In this case certain low-risk employees of the Jet Propulsion Laboratory in Pasadena, CA, questioned
the extent to which NASA could inquire into behavioral information. That process was the same
background investigation that it requires of its civil service employees, and challenges were made by
the low-level employees as violating their privacy:
Form, SF-85, requested residential, educational, employment, and military histories; the
names of three references that "know you well"; and whether the applicant has used,
possessed, supplied or manufactured illegal drugs.
Any applicants who answered "yes" to the drug-related questions were then asked to provide
information regarding the types of substances, the nature of the activity, and any other details
relating to their involvement with illegal drugs, including treatment or counseling received.
After completing SF-85, the government ran the employee's information through FBI and other
federal-agency databases.
The government also sent an inquiry, Form 42, to each of the employee's references and
former landlords requesting any adverse information about "honesty or trustworthiness,"
"violations of the law," "financial integrity," "abuse of alcohol or drugs," "mental or emotional
stability," "general behavior or conduct," and "other matters" that may have a bearing on the
applicant's suitability for employment at a federal facility.
In ruling that this inquiry process was reasonable, the United States Supreme Court stated that when
the government acts as an employer, it has more discretion to deal with citizen employees because of
its interest in the security of its facilities, managing its internal operations, and employing a
competent, reliable workforce to carry out its business.
Concerning questions about drug treatment or counseling, those are viewed in the context as a
follow-up question to separate illegal-drug users who are taking steps to address and overcome their
problems from those who are not.
As to the open-ended inquires into the employee's general behavior or conduct, those were found to
be reasonably aimed at identifying capable employees who will faithfully conduct the government's
business. Also, the Court noted such inquires are commonplace in the private sector and for the
government's civil service employees.
Finally, the Court recognized that the collected information is protected by The Privacy Act, which
requires written consent before the government may disclose an individual's records and imposes
criminal liability for willful disclosures. This protection would allay any privacy concerns on behalf of
the employees.
Evidence: attorney-client privilege, waiver; use of company computer rather than personal computer
Illustrative; not controlling law. The California courts found that the employee had waiver her
protection of attorney-client privilege when she used the company computer rather than her own to
communicate with her attorney. The trial court held that Holmes waived the privilege because she
used company email, and there were clear policies explaining the company's right to monitor email,
and the court of appeal agreed:
Although a communication between persons in an attorney-client relationship "does not lose its
privileged character for the sole reason that it is communicated by electronic means or because
persons involved in the delivery, facilitation, or storage of electronic communication may have access
to the content of the communication" (§ 917, subd. (b)), this does not mean that an electronic
communication is privileged (1) when the electronic means used belongs to the defendant; (2) the
defendant has advised the plaintiff that communications using electronic means are not private, may
be monitored, and may be used only for business purposes; and (3) the plaintiff is aware of and
agrees to these conditions. A communication under these circumstances is not a “„confidential
communication between client and lawyer‟” within the meaning of section 952 because it is not
transmitted “by a means which, so far as the client is aware, discloses the information to no third
persons other than those who are present to further the interest of the client in the consultation . . . .”
(Ibid.)
When Holmes e-mailed her attorney, she did not use her home computer to which some unknown
persons involved in the delivery, facilitation, or storage may have access. Had she done so, that
would have been a privileged communication unless Holmes allowed others to have access to her e-
mails and disclosed their content. Instead, she used defendants‟ computer, after being expressly
advised this was a means that was not private and was accessible by Petrovich, the very person
about whom Holmes contacted her lawyer and whom Holmes sued. This is akin to consulting her
attorney in one of defendants‟ conference rooms, in a loud voice, with the door open, yet
unreasonably expecting that the conversation overheard by Petrovich would be privileged.
Holmes v. Petrovich Development Company, LLC; C059133 (3rd App. Div.; 1/13/11); 2011 Cal. App.
LEXIS 33; http://www.courtinfo.ca.gov/opinions/documents/C059133.PDF.
NLRA; supervisor fired; refused to commit unfair labor practice, wrongful discharge, protected by Act
Illustrative; not controlling law. A supervisor was protected by the Act. He had been ordered by a
company vice president to “build a case” against a couple of pro-union, activist employees in order to
fire them, which the supervisor refused to do. Typically, the Act does not cover supervisors, but this
situation was an exception to because such behavior would thwart the purposes of the Act. Lewis v.
Whirlpool Corporation, No. 09-4231 (6th Cir., 1/12/11); 2011 U.S. App. LEXIS 593; 2011 FED App.
0013P (6th Cir.); courts.gov/opinions.pdf/11a0013p-06.pdf.
ADA: inability to perform essential functions, accurate job descriptions, no reasonable

accommodation required
Illustrative; not controlling law. This federal district court case provides another illustration that if a
worker cannot perform the essential functions of the job, and for that reason the worker’s claim of
denial of making a reasonable accommodation fails. Notably, the judge deferred to the employer’s
valid business determination of what were essential functions of the job. [Note: As a matter of good
business practices, it is very critical that job descriptions be current, accurate, and based on valid
business purposes.]
McEnroe v. Microsoft Corp., No. CV-09-5053-LRS (E.D. Wash. Nov. 18, 2010);
/EMPNews/mcenroe.pdf.
Lesann McEnroe was a Human Resources staffing associate handling administrative support for
Microsoft recruiters. For several years she had worked full time from her home in Kennewick,
Washington. Toward the end of that period she informed Microsoft she was disabled and unable “to
work at or travel to the Microsoft’s Redmond, Washington, campus” and to attend any functions there
related to work because she suffered, among other things, from panic disorder, agoraphobia, post-
traumatic stress disorder, and irritable bowel syndrome. When she applied for four higher-level
positions requiring travel and/or her physical presence in Redmond, she stated “Due to my disability, I
am unable to travel or work on campus as you note”, and she was not promoted to any of them. In
her suit for ADA discrimination, in which she represented herself [pro se], she contended that being
physically present in Redmond was not an essential function of the positions for which she had
applied. That contention was rejected by the trial judge because he found the employer’s job
descriptions were valid, that she was unable to perform them, and therefore no accommodations
were required. Thus, the employer’s motion for summary judgment was granted [dismissal without
trial because there is no issue of material fact for a jury].
Title VII: protects against discrimination, not uncivil and abrasive behavior, gender not a factor, no
disparate treatment, discrimination and retaliation claims rejected
Illustrative, not controlling law. Working for an abrasive, difficult or unreasonable supervisor can be
very unpleasant, but if it is not based on gender [or some other protected class] it may not be
protected by Title VII. United States Supreme Court opinions have stated the Title VII is not a civility
code [see Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), for example] However,
prudent practice would be to thoroughly investigate complaints of such conditions, and good business
practice would be to counsel the oppressor to ameliorate the situation if at all possible – oppressive
working conditions are bad for morale and could lead to unsafe or inefficient production.
Essentially, female employees felt that the physician supervising them was retaliating against them
for complaining about his management style [abrasive, bullying, disrespectful, unreasonable and
unrealistic expectations, setting them up for failure, etc.] by making schedule changes they felt were
unfavorable and burdensome. Investigation found that the physician also treated males similarly, and
so gender was found not to be the cause of his behavior. For a bit more details read Department of
Veterans Affairs (VA) hospital. Ahern, et al v. Shinseki, 09-1985, (1st Cir., 12/13/10); 2010 U.S. App.
LEXIS 25368; courts.gov/cgi-bin/getopn.pl?OPINION=09-1985P.01A.
Computer Fraud and Abuse Act: CFAA, employer’s policy limiting employee access and use of
computerized information
Illustrative; not controlling law. Courts continue to differ on interpretations of CFAA, but staying current
with those developments will facilitate employer awareness of potential problems.
United States v. Roberto Rodriguez, No. 09-15265 (11th Cir., 12/27/10); 2010 U.S. App. LEXIS 26203;
courts.gov/opinions/ops/200915265.pdf; /file.axd?file=2011%2f1%2fUS+v.+Rodriguez.pdf.
Rodriguez, a Social Security Agency employee, ignored his employer’s written policy and used
information to search for information about people he knew and women he wanted to court. That
misbehavior resulted in a court experience of a criminal conviction. Here is what the 11th Circuit Court
of Appeals wrote about it interpretation of the CFAA:
The Act defines the phrase “exceeds authorized access” as “to access a computer with authorization
and to use such access to obtain or alter information in the computer that the accessed is not entitled
to obtain or alter.” The policy of the [Social Security] Administration is that use of databases to obtain
personal information is authorized only when done for business reasons. Rodriguez conceded at trial
that his access of the victims’ personal information was not in furtherance of his duties as a
TeleServices representative and that “he did access things that were unauthorized.” In light of this
record, the plain language of the Act forecloses any argument that Rodriguez did not exceed his
authorized access.
So, as far as the Eleventh Circuit Court of Appeals is concerned, the CFAA means what it states in
plain language.
Title VII: gender, hostile work environment, retaliation; evidence, McDonnell Douglas test or mixed-
motive test
Illustrative; not controlling law, but published by the court as possible persuasive authority. This case
was lost by the plaintiff on summary judgment (i.e., a ruling as a matter of law because there was no
genuine issue of material fact). That judgment was affirmed by the appellate court. Because the facts,
procedure and evidence primarily will be of interest to trial attorneys, this brief limits itself to setting
forth key legal concepts as a review of the law generally. If you want to read the extensive factual
details, go to the URL link in the case citation. Brantley v. Unified School District No. 500, No. 09-
3207 (10th Cir., 12/16/10); 2010 U.S. App. LEXIS 25670; courts.gov/opinions/09/09-3207.pdf.
Title VII retaliation legal factors:
It is unlawful "for an employer" to retaliate against an employee who has "opposed any practice made
an unlawful employment practice by [Title VII]." 42 U.S.C. § 2000e-3(a). To prevail on a Title VII
retaliation claim, plaintiffs must establish "that retaliation played a part in [*8] the employment
decision." Fye v. Okla. Corp. Comm., 516 F.3d 1217, 1224 (10th Cir. 2008).
Plaintiffs may choose one of two ways to meet this burden. They may rely on the framework set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973),
"under which the plaintiff bears the initial burden of establishing a prima facie case of discrimination. If
the defendant is [then] able to articulate a legitimate nondiscriminatory reason for the adverse action,
the plaintiff must then show that the articulated reasons are a pretext for retaliation." Medlock v. Ortho
Biotech, Inc., 164 F.3d 545, 549-50 (10th Cir. 1999).
Plaintiffs may also choose, however, to show retaliatory animus directly, "in which case the McDonnell
Douglas framework is inapplicable." Id. at 550 (citing Greene v. Safeway Stores, Inc., 98 F.3d 554,
557-58, 560 (10th Cir. 1996)). This direct method is often referred to as the "mixed-motive" theory.n2
To succeed, plaintiffs must first directly show "retaliation played a motivating part in the employment
decision at issue. Fye, 516 F.3d at 1226. Once plaintiffs meet that burden, "the burden of persuasion
shifts to the defendant to prove that it would have taken the [*9] same action absent the retaliatory
motive." Fye, 516 F.3d at 1225.
Due process legal factors:
Brantley also alleges Unified violated his property rights without due process of law.
As a public employee, Brantley is entitled to due process if he can show his reassignment implicates
a property interest protected by the Due Process Clause. Calhoun v. Gaines, 982 F.2d 1470, 1476-77
(10th Cir. 1992). When determining whether an individual "has been deprived of his right to
procedural due process, courts must engage in a two-step inquiry: (1) did the individual possess a
protected interest such that the due process protections were applicable; [*17] and if so, then (2) was
the individual afforded an appropriate level of process." Farthing v. City of Shawnee, 39 F.3d 1131,
1135 (10th Cir. 1994).
Having thoroughly examined the facts and law, the appellate court upheld the determination of the
trial court that the plaintiff did not have a legally sufficient case against his employer.
Whistleblowing; OSHA: protected activity, civility and respect required; retaliation claim; employee lost
Illustrative; not controlling law. Employers are entitled to maintain reasonable standards of order, civil
behavior and respect in their workplace. The employee was an experienced truck driver who became
enraged, spoke louder and louder and more vehemently, and ultimately pushed his supervisor while
complaining about the condition of a truck that had been assigned to him – to the point that other
employees ran to the supervisor’s office to see if the supervisor needed help. The employee’s claims
of discrimination for whistleblowing and retaliation for complaining and for calling OSHA were rejected
because it was his outrageous behavior that was the reason for terminating his employment. That
was the finding of the Administrative Law Judge (ALJ), the OSHA Administrative Review Board, and
the Seventh Circuit Court of Appeals. Formella v. U.S. Dep’t of Labor and Schnidt Cartage, Inc., No.
09-2296 (7th Cir., 12/10/10); 2010 U.S. App. LEXIS 25203; courts.gov/tmp/4B0NLAG2.pdf.
Unions: health care workers, picketing as distinguished from striking, non-union healthcare workers
fired for participating
Limited controlling authority, but an important case for health care employers to read and discuss with
their employment attorney. Correctional Medical Services, Inc., 356 N.L.R.B. No. 48,(12/9/10);
http://www.nlrb.gov/shared_files/Board%20Decisions/356/v35648.pdf. Also read the Ogletree Deakins
law firm article at: /2010/12/articles/nlra/firing-of-nonunion-healthcare-workers-for-joining-union-
picketing-violated-nlra-even-though-unions-picketing-was-illegal/.
ADA: requested accommodation must enable the employee to perform the essential functions of the
job
Illustrative; not controlling law. A qualified individual means one who with or without a reasonable
accommodation can perform the essential functions of a job. Understandably, if the accommodation
requested by an employee claiming a disability doesn’t accomplish that result, then there is no
violation of the ADA. [Note: Conducting an adequate interactive discussion and exploration is a good
practice in such situations.]
Jakubowski v. Christ Hosp. Inc., No. 09-4097 (6th Cir., 12/8/10); 2010 U.S. App. LEXIS 24997; 2010
FED App. 0369P; courts.gov/opinions.pdf/10a0369p-06.pdf.
A medical resident, Martin Jakubowksi, scored poorly in competency test and otherwise also received
poor performance reviews, and his employment was terminated.
He claimed his Asperger’s syndrome caused:
poor scores on an emotional intelligence exam and
an evaluation as being deficient in self-awareness, social competence, and

relationship management.
Further, one attending physician observed that
he had poor organizational skills, skipped standard procedures in his examinations,

and
performed procedures incorrectly.
Finally, though he never caused actual harm to any patient during his residency, his
supervising physicians noted
his inability to communicate effectively with nurses, and
that at time he made unclear orders made for medication and treatment of patients.
The accommodation requested in a letter from his attorney was that the hospital increase the
“knowledge and understanding” about Asperger’s syndrome of the physicians and nurses working
with Jakubowski [Note: Though that might help to identify his condition, it would not improve his
performance as a physician, which is essential to the wellbeing of patients]. The hospital responded
that it did not have sufficient resources to comply with the proposal by Jakubowski, but offered to help
him in finding a residency in pathology, a field that required little or no patient interaction.
His ADA claim was dismissed by summary judgment in the trial court and the appellate court affirmed
that dismissal because Jakubowksi was unable to prove that he was “otherwise qualified” to
successfully complete his residency because his proposed accommodation did not directly improve
his ability to communicate with co-workers and patients.
FMLA: attendance, repeated violations of company call-in policy, termination, no FMLA violation
Thompson v. CenturyTel of Central Arkansas, LLC, No. 09-3602, ,(8th Cir., 12/3/10); 2010 U.S. App.
LEXIS 24796; courts.gov/opns/opFrame.html.
Illustrative; not controlling law. The company had a clear, written, understandable, widely
disseminated, and consistently enforced attendance policy, which the discharged employee had
received each year of her employment. Thus, termination of her employment was upheld because
FMLA regulations specifically provide that an employer may require an employee on FMLA leave to
“report periodically on the employee’s status and intent to return to work.”
Unions: pre-recognition, organization of employees not represented, neutrality agreements, card

check and neutrality agreements
Controlling law. This case has serious implications for employers that may be involved with
unionization. In anticipation of its effects, those employers ought to discuss this case with their legal
counsel. Also, it would also be a good idea to search the Internet for articles discussing the
implications of the decision. Because briefing the case might possibly leave out an important detail or
fail to give sufficient information about some aspect of the decision that might be important to a
particular employer, here is the URL link to the NLRB’s publication of entire text of the case. Dana
Corp., 356 NLRB No 49, http://www.nlrb.gov/shared_files/Board%20Decisions/356/v35649.pdf.
Union; PEBA: NM Public Employees Bargaining Act; arbitration exceeded authority; standard of
review; NM Constitution, anti-donation clause; collective bargaining; substantial evidence,
suppression of evidence; legislative intent
Controlling law. This case involves specific New Mexico law and specific facts of limited application,
and therefore will not be briefed. These paragraphs explain generally what the case involved:
{1} This case arose from a public sector collective bargaining impasse arbitration
proceeding under the New Mexico Public Employee Bargaining Act (PEBA), NMSA 1978,
§§ 10-7E-1 to -26 (2003, as amended through 2005), and a resolution called the University
of New Mexico Labor Management Relations Resolution, Section 15, Negotiations and
Impasse Resolution (the LMRR). The parties are National Union of Hospital and Health
Care Employees District No. 1199 New Mexico, AFL-CIO, CLC (the Union) and the Board
of Regents of the University of New Mexico (the University) acting for its hospital (the
Hospital).
{2} The arbitration award favored the Union, and the Union sued to confirm the award
under the New Mexico Uniform Arbitration Act, NMSA 1978, §§ 44-7A-1 to -32 (2001).
The Hospital sought to vacate the award claiming that the arbitrator lacked jurisdiction to
enter it and either engaged in misconduct or exceeded his authority in conducting the
impasse arbitration. The Hospital also claimed that an employee bonus contained in the
award would require the Hospital to violate public policy. The district court vacated the
award and denied the Union’s motion for reconsideration, and the Union brought this appeal.
We affirm the district court’s order, judgment, and decree vacating the award and
determining it to be of no further effect.
***
{41} We affirm the district court. We hold that the arbitrator exceeded his authority and
also engaged in misconduct in the manner in which he conducted the arbitration. We further
hold that the $500 bonus provision in the selected offer required the Hospital to violate
public policy and it was therefore impermissible, invalidating the entire package.
The details and intricacies of this decision are located at: National Union of Hospital and Health Care
Employees District No. 1199 New Mexico, AFL-CIO, CLC, v. The Board of Regents of the University
of New Mexico, No. 28,960, 2010-NMCA-102, certiorari denied; 2010 N.M. App. LEXIS 92; 2010
NMCA 102; 189 L.R.R.M. 2037; /nmcases/NMCA/2010/10ca-102.pdf.
NMPELRB: Public Employees Labor Relations Board, collective bargaining, discrimination,

organizing, exhaustion of administrative remedies, writ of prohibition, writ of superintending authority,
statutory interpretation
Controlling law: This complex case was decided upon specific facts, is of limited application, and it
is on certiorari to the N.M. Supreme Court, and thus is not a final decision as of 12/6/10. Therefore,
practitioners in this area of New Mexico law are referred to the actual case, and it will not be briefed in
this collection.
City of Albuquerque v. Montoya, 2010-NMCA-100, /nmcases/NMCA/2010/10ca-100.pdf.
ADA: discrimination allegation insufficient, “regarded as”, need to show more than one type of job
Illustrative; not controlling law. An ADA disability is defined as a physical or mental impairment that
substantially limits one or more major life activities, or being “regarded” as having such impairment.
Consequently, a complainant must show that the perceived impairment limited a major life activity and
that the limitation was “substantial.” In this case the nurse’s claim failed because she failed to show
that her employer viewed her as unable to perform job duties as a treatment nurse and viewed, or
regarded, her as generally unable to perform as a nurse.
Winborne v. Sunshine Health Care, Inc., 5th Cir., No. 09-60765, (5th Cir., 11/17/10); 2010 U.S. App.
LEXIS 23670; courts.gov/opinions%5Cunpub%5C09/09-60765.0.wpd.pdf.
Barbara Winborne, LPN, began working at Sunshine Rest Home in 1992, A year later she was
diagnosed as suffering from transient ischemic attacks (TIAs), which caused her difficulties
concentrating, plus often experiencing dizziness, temporary loss of awareness, and severe
headaches.
During a lapse of attentiveness, an elderly patient slipped from bed and was suspended by her bed
restraints, though the patient was later returned to the rest home. That incident was reported to the
Mississippi Department of Health (MDOH), as required by law. An investigation was conducted during
Winborne’s suspension from her duties, and based on the findings, the MDOH found “abuse and
neglect” of the patient. Her employer then terminated her employment based on its policy that
requires termination of an employee found guilty of patient neglect.
At trial, it was found that she was fired in violation of the ADA because her employer regarded her as
disabled, and she was awarded $10,000 and more than $25,000 in attorney fees and costs. However,
on appeal, the Fifth Circuit Court of Appeals reversed the jury award and judge’s ward of fees and
costs, and entered judgment in favor of her employer. The appellant court reasoned that in order to
show that she was regarded as substantially limited in the major life activity of working, Winborne had
to prove that her believed her to be significantly restricted in the ability to perform either a class of
jobs or a broad range of jobs in various classes as compared to the average person having
comparable training, skills and abilities. Further, inability to perform a single, particular job does not
constitute a substantial limitation in the major life activity of working. Thus, Winborne had the burden
to show that her perceived impairment extended beyond her one particular job to a class of jobs or to
a broad range of jobs in various classes, and she failed to do that.
ADA: no qualifying disability or impairment, high accident rate, safety risks, banned prescription
drugs, lack of standing to sue
Illustrative; not controlling law. Because this case is from a court outside of our jurisdiction, consult
legal counsel experienced in employment law before taking action based on this case.
Bates v. Dura Automotive Systems, Inc., No. 09-6351 (6th Cir., 11/3/10); 2010 U.S. App. LEXIS
22903; 2010 FED App. 0339P (6th Cir.); courts.gov/opinions.pdf/10a0339p-06.pdf.
A company manufacturing automotive parts had been experiencing high accident rates by its
employees using certain prescription medications. It implemented a plan to test for a number of them
that it deemed created safety risks, which included Xanax, Lortab, and Oxycodone, and instituted a
policy banning their use. A provision of the company policy allowed the option of switching to other
drugs that do not contain substances banned by the policy. Seven of its employees tested positive for
the banned prescription drugs and their employment was terminated for violating the policy. They
claimed the testing program violated the ADA. The employer contended they lacked standing to sue
under the ADA
“Standing” is a legal concept that a plaintiff must have a legal right to initiate a lawsuit, i.e., the person
must be sufficiently affected by the matter at hand, and there must be a case or controversy that can
be resolved by legal action. For a detailed explanation, go to
http://www.law.cornell.edu/anncon/html/art3frag17_user.html.
The federal trial court ruled that the employees did have standing to sue under ADA provision 42
U.S.C. §§ 12112(a) and (b)(6), but the Third Circuit Court of Appeals disagreed and dismissed the
employees’ claim. Its reasoning was that “the plain text of subsection (b)(6) only covers individuals
with disabilities.” Accordingly, it ruled
A straightforward reading of this statute compels the conclusion that only a ‘qualified individual with a
disability’ is protected from the prohibited form of discrimination described in subsection (b)(6) – the
use of qualification standards and other tests that tend to screen out disabled individuals.
Finally, as you may recall, the ADA has an exception for situations where an employer would not be
liable for an adverse employment action based on ADA’s non-discrimination standards of “job-
relatedness” and “consistent with business necessity”, but this court did not address that prevision.
ADA: obsessive compulsive disorder (OCD), tardiness, reasonable accommodation, falsified time
records; summary judgment for employer
Illustrative; not controlling law - a district court order binds only the parties to the action. Thus, this
case is illustrates reasoning to consider, but not to rely on as controlling authority.
This was the employee’s fifth ADA OCD claim in a brief period of time, and the second time before
Judge Herrera. She dismissed this one because he was fired for falsifying time records, not for filing a
discrimination claim - he failed to present evidence of:
how his OCD prevented caring for himself, thinking, or concentrating,
how major life activities such as eating, driving, grooming, or household maintenance were
affected by his OCD,
any way that his condition prevented him from working a full day when he finally reported for
work, and
that his termination for falsifying recodes was a pretext.
Gregory Smith v. Flying J, Inc., CV 09-433 JCH/RLP, U.S.D.C., 10/12/10, unpublished.
At-will: oral promises of permanent employment, written confirmations of at-will status, three-step
evidentiary presentation rule; summary judgment proof
Illustrative; not controlling law in NM; Controlling Law in CO. Though a 10th circuit decision, it relied
on Colorado law, which differs from NM law. This case is noted as one to be aware of, but not for New
Mexico practitioners to rely on as controlling authority. As such, it is not briefed, but the URL and other
citations are provided for those in the Colorado jurisdiction who may be interested in it.
Colorado at-will employment law holds that an offer of permanent employment merely means
“an indefinite general hiring terminable at the will of either party” [which seems to be
essentially illusory]. Under those circumstances, it is possible for an employer to obtain a

summary judgment in its favor.
On the other hand, under New Mexico law a jury decides from the totality of the circumstances
of the representations if an empoloyer’s oral statement of permanent employment might be
found to supersede a written at-will acknowledgment, and consequently a summary judgment
probably would be next to impossible for an employer to obtain.
DeFranco v. Storage Technology Corporation, No. 08-1095 (10th Cir., 10/20/10); 2010 U.S. App.
LEXIS 21591; courts.gov/opinions/08/08-1095.pdf.
NLRB: National Labor Relations Act (NLRA) § 7, Facebook, complaints about work, concerted activity
Heads-up. The NLRB hearing won’t be until January 27, 2011, so be alert for the decision and
whether it is appealed in the court system.
What to do about employee complaints about work that are posted on the Internet in social network
programs – in this instance, Facebook? Section 7 of the NLRA protects “concerted activity” by
employees working together to improve the terms and conditions of their workplace and employment.
Typically, this right is enforced by the NLRB if actions of the employer would “reasonably tend to chill
employees”.
The specific case involves American Medical Response of Connecticut, Inc., an ambulance service,
and the issue is whether comments posted by one of its employees on her personal Facebook site
from her home computer were protected by the NLRA. The employer investigated and fired her for
her Facebook comments. One legal consideration is whether her activity was “unduly and
disproportionately disruptive” to the business of the company. Another consideration could be how
professional the comments were as opposed to whether they might have been a petty personal attack
on the supervisor involved. This is similar to the concept that there ought to be a valid business
purpose for an employer to take an adverse employment action against an employee in order to show
it was not illegally discriminating against the employee. As we know, Facebook and other social
network communications can have far wider public reach than discussions among workers in face-to-
face discussions, so this adds additional considerations to the issue. As a practical matter, this may
be yet another area where training will be needed for both employers and employees to assist them
in determining what can be said, and when and where.
Arbitration: NM School Personnel Act, teacher discharged, arbitration, district court appeal, collateral
estoppel
Controlling law. This case is a continuation of a case previously briefed in this collection, and the
teacher continued his string of losses. Because of its specific and detailed factual nature, it will not be
briefed in detail here [but the Internet link is provided for those who need to study the details]
However, in the interest of refreshing our understanding of the common law doctrine collateral
estoppel, let’s review it. Essentially, if a party has had a fair opportunity to present its case, then it isn’t
allowed to return and litigate it again. Here is the key paragraph from the New Mexico Court of
Appeals opinion:
{9} For a claim to be barred by collateral estoppel, “(1) the party against whom collateral
estoppel is asserted must have been a party in or in privity with a party to the original action;
and (2) the two cases must have concerned the same ultimate issue or fact, which was (a)
actually litigated, and (b) necessarily determined in the first suit.” DeLisle v. Avallone, 117
N.M. 602, 605, 874 P.2d 1266, 1269 (Ct. App. 1994). The party invoking the doctrine of
collateral estoppel bears the burden of establishing a prima facie showing. Id. at 606, 874
P.2d at 1270. Once a prima facie showing is made, the burden shifts to the party opposing
collateral estoppel to show that the party was not afforded a full and fair opportunity to
litigate the issue in the prior proceeding. Id. The doctrine of collateral estoppel applies to
arbitration awards if the “arbitration affords opportunity for presentation of evidence and
argument substantially similar in form and scope to judicial proceedings.” Rex, Inc. v.
Manufactured Hous. Comm., 119 N.M. 500, 505, 892 P.2d 947, 952 (1995) (internal
quotation marks and citation omitted). However, “because arbitration proceedings tend to
be more informal than judicial proceedings, with fewer procedural safeguards, [a] court
should be particularly vigilant in examining whether the arbitration proceeding provided the parties
with a full and fair opportunity to litigate the issues.” Id.
Larsen v, Farmington Schools, 2010-NMCA-094, Certiorari Denied, September 16, 2010, No. 32,566,
/nmcases/NMCA/2010/10ca-094.pdf.
Arbitration: agreement referred to arbitration rules, employer’s failure to provide copy of arbitration
rules; unconscionable agreement, mandatory award of attorney fee to prevailing party
Illustrative; not controlling law (but see the Kepas case below for controlling law). Here’s something
to think about and discuss with your employment law attorney and review arbitration agreements. A
California appellate court ruled that there is an issue of whether an arbitration agreement could be
voided by an employee because the employer failed to provide a copy of the American Arbitration
Association (AAA) rules that were referred to in the arbitration “agreement”. It reasoned that the
agreement was unconscionable because of its mandatory provision that would award an attorney fee
to the prevailing party, which is contrary to the typical attorney fee award provisions of most statutory
anti-discrimination laws:
In a Title VII or FEHA discrimination case, the prevailing plaintiff should recover attorney fees unless
special circumstances would render the award unjust, whereas a prevailing defendant may recover
attorney fees only when the plaintiff’s action was frivolous, unreasonable, without foundation, or
brought in bad faith.
Trivedi v. Curexo Technology Corporation, A127283 (CA. Ct. of App., Dist. 1, Div. 4, 9/28/10); 189 Cal.
App. 4th 387; 2010 Cal. App. LEXIS 1802;
http://www.courtinfo.ca.gov/opinions/documents/A127283.PDF. And in a somewhat similar case
dealing with costs of arbitration, see Kepas v. eBay, No. 09-4200, (10th Cir., 11/2/10); 2010 U.S. App.
LEXIS 22979; 110 Fair Empl. Prac. Cas. (BNA) 1373; courts.gov/opinions/09/09-4200.pdf.
ADEA: adverse employment action, misconduct; comments, remote in time; proof; three-step process
Controlling law. Two older women working as pharmaceutical representatives, one in Kansas and
one in Oklahoma, alleged age discrimination when their employment was terminated. Though
comments about their age had been made a year before they were fired, both trial courts and our 10th
Circuit Court of Appeals determined their employment was terminated for misconduct, and that the
ageist comments made about a year earlier were too remote in time to be material [i.e., legally
significant]. Concerning misconduct, they had altered performance records of sample medication
distributions, which violated written company policy and also was a federal criminal violation of the
Prescription Drug Marketing Act. Methods of investigation used by the employer were held to be
appropriate. In of indirect discrimination situations like this, a three-step proof is required:
1. Initial discrimination - the employee’s burden of proof
1. member of a protected class,
2. qualified for the position at issue,
3. suffered an adverse employment action,
4. was performing satisfactorily at that time, and
5. employer did not eliminate that position after firing;
2. the employer must then demonstrate a legitimate non-discriminatory reason for the firing; and
3. the employee must prove that the employer’s reason was a pretext to cover up discrimination,
e.g., suspect, flimsy, not credible, etc.
[Note: The ultimate burden of proof never shifts from the employee.] Wagoner v. Pfizer, Inc., No. 09-
3066 (10th Cir., 8/12/10); 2010 U.S. App. LEXIS 16867; 110 Fair Empl. Prac. Cas. (BNA) 192;
courts.gov/opinions/09/09-3066.pdf; and Kirkpatrick v. Pfizer, Inc., No. 09-6116 (10th Cir., 8/12/10);
2010 U.S. App. LEXIS 16868; courts.gov/opinions/09/09-6116.pdf.
First Amendment: public sector employee, free speech, retaliation, public concern about the subject
matter
Controlling law. The government has valid and necessary interests in regulating what its employees
say, write, or otherwise communicate outside of the agency or governmental entity, and that
regulation differs from dealing with the right of free speech enjoyed by private citizens. An important
exception to this governmental handling arises when a communication by a public employee involves
a matter of public concern. Because of the increasing number of accusations of misconduct or
corruption by public officials, this is a timely case to read in detail for the extensive legal analysis by
our 10th Circuit Court of Appeals. It is also interesting to read the reasons stated by the parties for
why they did what they did.
Deutsch v. Jordan, No. 09-8042 (10th Cir., 8/24/10); 2010 U.S. App. LEXIS 17677;
A police chief, Deutsch, used money from city petty cash to buy a notebook computer. Hale, a private
citizen, wrote a letter to Jordan, city manager, about this. Deutsch sued Hale for defamation in small
claims court. Jordan attended the trial as an observer, not as a witness. Shortly after the trial Jordan
fired Deutsch for testifying untruthfully in the small claims court trial. Deutsch then sued Jordan in
federal court for retaliating against him for exercising his right of free speech when he testified during
the small claims court trial, stating that in the small claims court trial he was testifying to clear his
name. The trial court dismissed the claims against the city, but allowed the claim against the city
manager, Jordan, to proceed. Jordan appealed on the ground that she is entitled to qualified immunity
because (1) Mr. Deutsch’s testimony was not on a matter of public concern, and (2) even if it was,
Ms. Jordan’s reasonable belief that he had lied overrode his free-speech interests. The appellate
court stated that . . .
. . . Mr. Deutsch testified at trial to satisfy a personal purpose; he certainly wished to clear his name.
But clearing his name and responding to a charge of public corruption amounted to the same thing.
The testimony at issue was a matter of public concern.
Though the appellate case sets forth at length the various precedents and policies involved, basically
...
. . . public concern is something that is of interest general news interest; that is a subject of general
interest of value and concern to the public at the time of publication.
Further, the appellate court held, because an accusation of misconduct by a public official . . .
. . . clearly concerns matters of public import, the response to an accusation is also a matter of public
concern.
What about the motive of the speaker? The appellate court said it does not necessarily negate the
public nature of the speech.
USERRA: coverage trigger, leave, military leave
Illustrative; not controlling law. Announcing an intention to return to active duty may trigger USERRA
coverage. In this unusual extension of USERRA coverage, the employee was not yet on active duty,
he merely said he intended to return to it. Vega-Colon v. Wyeth Pharmaceuticals, No. 09-1861 (1st
Cir., 10/28/10); 2010 U.S. App. LEXIS 22277; courts.gov/cgi-bin/getopn.pl?OPINION=09-1861P.01A.
Fitness for duty: conflicting medical reports; FMLA; retaliation
Illustrative; not controlling law. The primary controversy in this case was the dispute over whether the
employee was fit to return to duty. His physician said he was, but the employer’s physician said he
was not. This is a trial court decision, so the result is binding only on the parties to the case. However,
the reasoning is worth consideration, but, as always, confer with your employment law attorney
before acting upon a similar situation.
Fitness for duty:
As a materials handler, Terry Degraw’s job description and duties involved:
manually handling batteries weighing from 5 to 80 pounds;
occasionally lifting (with assistance) batteries weighing from 80 to 120 pounds;
moving and carrying pallets weighing up to 40 pounds, and
continuous standing, walking, or riding a truck during a 12-hour shift.
A history of back pain and injuries caused him continuing back problems. When he used up his 12
weeks of FMLA leave, his employer allowed additional leave for further treatment. His chiropractor
released him to return to work. However, several days later his employer’s physician on retainer to
determine employee fitness for duty, who had previously examined Degraw on several occasions,
ordered an MRI. Based on his review of that study he recommended that Degraw avoid repetitive
bending, stooping, lifting, twisting, climbing, and lifting more than 20 pounds, and he noted that these
restrictions were not consistent with Degraw's job as a material handler. A couple of weeks later
Degraw met with the company’s human resources director and environmental health and safety
supervisor. Degraw at that time said he felt fine, could "bench press 400 pounds" and do other heavy
lifting. However, they decided he could not safely perform any available jobs at the Salina plant and
several weeks later terminated his employment. Degraw sued for retaliatory discharge under state
law on the grounds he was fired him in retaliation for exercising his FMLA rights, and that his
employer violated the FMLA by forcing him to take unnecessary medical leave and failing to reinstate
him following his leave.
FMLA: No violation because he never requested FMLA leave – the employer had declared it as FMLA
leave.
Retaliation: Denied; the employer fired him because he could not perform the essential functions of
his job, not because his condition caused him to take FMLA leave. Degraw v. Exide Technologies, No.
09-4016-RDR (U.S.D.C.Kansas, 10/13/10); /scholar_case?
case=1788643820465304252&q=degraw+v+exide&hl=en&as_sdt=2002.
Ledbetter: adverse employment action, promotion denied, untimely filing
Illustrative; not controlling law. The Ledbetter decision does not apply to a denial of promotion
because a pay disparity may not be obvious, whereas denial of a promotion is an obvious event. Noel
v. The Boeing Company, No. 08-3877, (3rd Cir, 10/1/10); 2010 U.S. App. LEXIS 20217;
/assets/attachments/Noel%20v.%20Boeing.pdf. Also, The D.C. Circuit recently held that the FPA's
terms do not cover failure-to-promote grievances: Schuler v. PricewaterhouseCoopers, LLP, 595 F.3d
370, 375, 389 U.S. App. D.C. 213 (D.C. Cir. 2010).
Title VII: race, gender, hostile work environment, retaliation; extensive and continuing efforts to
investigate, case dismissed
Illustrative; not controlling law. Read this case for the details of the lengths to which to employer went
to investigate the claimant’s allegations of discrimination, hostile work environment, and retaliation.
Those extensive efforts by the employer turned up nothing to support the claimant’s allegations, and
they were held by the courts to be a legally sufficient response to her Title VII claims. Briefing this
case might leave out significant details, ample links are provided here to study the actual appellate
opinion, which provides a very good model of proper response and investigation. Wood v. University
of Pittsburgh, No. 09-4469 (3rd Cir., 9/23/10); 2010 U.S. App. LEXIS 19900;
/uploads/file/Wood-v-Pitt-3d%20cir-9-23-10.pdf; /2010/10/articles/title-vii-1/employers-continuing-
efforts-to-resolve-issues-complained-of-by-employee-supports-dismissal-of-discrimination-complaint/.
Title VII; NMHRA: “bona fide occupational qualification” (BFOQ) explained, narrow defense
Illustrative; not controlling law. BFOQ is a narrow defense of limited application. However,
explanations are helpful, plus BFOQ is a defense under the NM Human Rights Act. Check it out for
guidance. This particular case involved the Nevada prison system, which had been experiencing a
serious and recurring problem with male corrections officers engaging in sexual activities with female
inmates who traded sexual favors for better treatment. In at least one instance a female inmate
became pregnant. Nevada’s solution to this problem was to hire only female lieutenants in an effort to
decrease corruption caused by female inmates' solicitations. Some male corrections officers sued,
saying they were denied promotional opportunities at the female prisons. The federal district court
granted summary in favor of the employer, but the 9th Circuit Court of Appeals reversed that ruling on
the grounds that it found Nevada had not adequately supported its justification for discriminating
against male candidates for hiring at women's prisons. Though this is a narrow ruling, the case is of
interest to employers attempting to establish sufficient justification for hiring women or men
exclusively in a particular employment situation. Breiner v. Department of Corrections, No. 09-15568
(9th Cir., 7/8/10); 2010 U.S. App. LEXIS 13933; 610 F.3d 1202; 109 Fair Empl. Prac. Cas. (BNA)
1153; 93 Empl. Prac. Dec. (CCH) P43,930; courts.gov/datastore/opinions/2010/07/08/09-15568.pdf.
FMLA: status of employee retained at location taken over by another company; definition of a
“successor in interest” as defined by the Act
Illustrative; not controlling law. Quite some time has passed since a “successor in interest” case has
been briefed, and this case is a good reminder for us. The FMLA uses the term “successor in interest”
but doesn’t define it, so Department of Labor regulations defined the term by incorporating definitions
in Title VII of the Civil Rights Act:
1. substantial continuity of the same business operations;
2. use of the same plant;
3. continuity of the work force;
4. similarity of jobs and working conditions;
5. similarity of supervisory personnel;
6. similarity in machinery, equipment, and production methods;
7. similarity of products or services; and
8. ability of the predecessor to provide relief.
The totality of the circumstances is important in attempting to be fair to both the new company and
the person claiming rights under the FMLA; no single factor is determinative.
In this 9th Circuit Court of Appeals case the court noted that rules are much broader than the legal
standard regarding general corporate liability, and that the rules are designed to be “fair” and protect
the employee even where the new company has not agreed to legally assume such liabilities of the
old company. Apply these considerations to the specifics of the case, the appellate court found that
the now occupant of the building was not a successor in interest of the previous occupant and did not
owe FMLA leave to the claimant.
Christine Sullivan had been the full time manager of a Factory 2-U store in Pasco Washington, which
retail chain sold discount clothing. Following bankruptcy, that location was taken over by Dollar
Stores, a retail chain selling sells a variety of items, including clothing, for one dollar. Apart from the
leaseholds at Pasco and several other locations, Dollar Tree purchased no other assets of Factory 2-
U. Sullivan applied to Dollar Tree for employment around this time, trained at another Dollar Tree
store in the nearby town of Richland, assisted in preparing the Pasco store for opening, and then
began working full time as an assistant manager at the Pasco Dollar Tree store. About eight months
her mother became seriously ill. Sullivan’s request for some time off was allowed, but when she
requested FMLA leave, that was denied because she did have the required 1250 hours. Her claim for
credit for hours worked with Factory 2-U was denied on the grounds that Dollar Tree was not found to
meet the criteria to be deemed a “successor in interest”, relying on a United States Supreme Court
case holding that courts must examine the question of an employer’s succession status from the
viewpoint of the employee: “In conducting the analysis, the court keeps in mind the question whether
‘those employees who have been retained will understandably view their job situations as essentially
unaltered” in the acquisition process. Sullivan v. Dollar Tree Stores, Inc., No. 08-35413 (9th Cir.,
9/27/10); 2010 U.S. App. LEXIS 19932; courts.gov/datastore/opinions/2010/09/27/08-35413.pdf.
FMLA: possible wrongful discharge, mixed motive, affect of knowledge of previous FMLA leaves;
issues of material fact to be determined by a jury
Illustrative; not controlling law. Why was this employee fired? Was it because she failed to card a
secret shopper purchasing cigarettes, which failure violated company policy to prevent underage
purchases, or was it because the employer wanted to stop her from taking further FMLA leaves for
cancer treatment? Because of these questions, summary judgment dismissal of her claim by the trial
court was overruled and the case was remanded [returned] to the trial court for a jury to determine the
facts.
Sally Kinney, cashier at a Holiday gas station for many years, suffered from cancer and had been on
FMLA leave off and on for treatment since 2005. I February 2007 she called in and though she said
she was feeling tired and sick and "did not want to be there that day," she went to work. However,
upon arrival she told her manager that she wasn't feeling good and wanted to go home, asked her
supervisor if someone else could come in to substitute for her, apparently there was no one and she
worked the rest of the day. On that day Holiday sent a “secret shopper” to the store to check on
compliance with the company's tobacco sales policy. Kinney failed to “card” the customer to check
age, which allegedly was Kinney’s second violation that year of the carding policy. A few weeks
thereafter she was fired. At trial her case was dismissed by an order granting the employer’s motion
for summary judgment [i.e., there was no dispute of material fact, and thus nothing for a jury to hear
and determine].
On appeal the 9th Circuit found there were questions of material fact:
1. Whether Kinney's prior and prospective FMLA leaves played a role in Holiday's decision to
terminate her employment. If Kinney could "show that Holiday used her 2005 and 2006 FMLA-
covered absences, in conjunction with its awareness that her illness might require more
medical leave in the future, as a "negative factor" in its decision to fire her", then she had a
valid FMLA claim.
2. Further, there was the question of the validity of the “carding” incident because there was
"conflicting evidence as to whether Kinney's first tobacco-sale violation occurred at all," which
was a fact question to be resolved by a jury.
Kinney’s evidence of a possible FMLA motive was:
Holiday fired Kinney shortly after her cancer's recurrence;
Holiday managers involved in the termination decision were aware of her cancer; and
The same managers discussed whether Kinney had taken FMLA leave shortly before she was
terminated.
Kinney v. Holiday Companies, No. 09-35406 (9th Cir., 10/5/10); 2010 U.S. App. LEXIS 20528;
/scholar_case?
case=14536283048414381101&q=Kinney+v.+Holiday+Companies&hl=en&as_sdt=2002
FMLA: employee failure to supply medical certification, adverse employment action, termination,
waiting until compliance period expires, properly counting days
Illustrative; not controlling law. Once again, this case illustrates the need for full and adequate training
of all involved in the requirements, rights and responsibilities of the Act. Properly administering FMLA
leave is essential. This employer failed to do that when it terminated the employee before the time
had expired for the employee to file required medical certification. Also, it is very important to properly
count the required number of days for providing medical certification. The physician’s letter released
the employee to work on November 14, 2006; the appellate court ruled that the 15 days was still in
effect through November 28th. Thus terminating her employment on November 24th violated the Act
by not allowing the employee the full 15-day certification period. Branham v. Gannett Satellite
Information Network, Inc., No. 09-6149 (6th Cir., 9/2/10); 2010 U.S. App. LEXIS 18328; 2010 FED
App. 0283P (6th Cir.); 16 Wage & Hour Cas. 2d (BNA) 1040; courts.gov/opinions.pdf/10a0283p-
06.pdf; /uploads/file/Branham-v-Gannett-6thCir-9-2-10.pdf; also see this article at /fmla-faqs/fmla-faq-
--when-does-the-15-day-period-for-returning-a-certification-start/.
Return to work: Department of Labor resource: http://www.dol.gov/odep/return-to-work/
Numerous helpful items are available at this URL for employers who have employees released to
return to work.
Privacy: Facebook information, personal information, personal injury litigation, damages claim for loss
of enjoyment of life; discovery request, Stored Communications Act (SCA)
Illustrative; not controlling law. How much privacy can a personal injury claimant expect when an
employer requests disclosure of her Facebook data? Apparently, not much, according to this New
York trial court ruling.
Kathleen Romano fell of her office chair and sued her employer, Steelcase, Inc., for personal injuries
[Note; in our jurisdiction that personal injury claim might be barred by the N.M. Workers’
Compensation Act and be limited to the Act as a workers’ compensation issue]. One of her allegations
was loss of enjoyment of life, and as such Steelcase requested copies of her Facebook profiles, both
public and private, to determine the validity of that claim.
Facebook objected on the grounds that to do so without her consent would violate provisions of the
Stored Communications Act (SCA), 18 U.S.C. §§2701-2712. Romano objected on the grounds that
she “possesse[d] a reasonable expectation of privacy in her home computer.” She further argued that
the claims by Steelcase that such information was relevant were based only on “speculation and
conjecture” and she characterized the discovery request as a “blatant attempt by defendant to
intimidate and harass” her, and that a wholesale release of all private messages on her Facebook
and MySpace account would give Steelcase access to “wholly irrelevant information as well as
extremely private information.”
Steelcase responded that based on public portions of her Facebook and MySpace profiles there was
reason to believe that, contrary to claims asserted in her lawsuit, she actually “has an active lifestyle
and can travel and apparently engages in many other physical activities inconsistent with her claims
in this litigation.” One example cited by Steelcase was that the plaintiff’s public Facebook profile
showed her “smiling happily in a photograph outside the confines of her home despite her claim that
she. . . is largely confined to her house and bed.”
The New York trial court ruled that denying Steelcase access to her profiles “would condone [her]
attempt to hide relevant information behind self-regulated privacy settings.” It stated that based on
publicly available portions of her profiles, it was reasonable to conclude that the private portions of
her profiles “may contain further evidence such as information with regard to her activities and
enjoyment of life, all of which are material and relevant to the defense of this action.” Romano v.
Steelcase Inc., 2006-2233 (N.Y. Super., Suffolk County, 9/21/10); 2010 N.Y. Misc. LEXIS 4538;
/REPORTER/3dseries/2010/2010_20388.htm.
Labor; Arbitration: NM Public Employees Bargaining Act (PEBA), arbitrator failed to comply
Controlling law. The PEBA has strict requirements for arbitrating matters involving the State of New
Mexico (other arbitrations may differ). In this case the arbitrator acted like a mediator rather than an
arbitrator in a collective bargaining dispute, which violated the strict requirements of PEBA. Because
this case is of limited application and depends on specific statutory requirements, it will not be briefed
in detail. Practitioners in this area of public sector labor law need to read the case in detail. Nat’l
Union of Hosp. & Health Care Emples. Dist. No. 1199 N.M., AFL-CIO, CLC v. Bd. of Regents of the
Univ. of N.M., 2010-NMCA-092 (N.M. Ct. App., 8/10/10); 2010 N.M. App. LEXIS 92;189 L.R.R.M.
2037; /nmcases/nmca/slips/CA28,960.pdf; [Note: No additional citation available as of 9/23/10].
Labor; Bargaining: Public Employee Labor Relations Board (PELRB) jurisdiction
Controlling law. This PEBA case is also limited in application and will not be briefed in detail.
Practitioners in this area of public sector labor law need to read the case in detail. At issue was
whether the PELRB could hear a discrimination claim of an employee refused employment by the
City of Albuquerque because of his union activities. The N.M Court of Appeals ruled that he could.
City of Albuquerque v. Montoya, No. 28,846, 2010-NMCA-___; 2010 N.M. App. LEXIS 94
(N.M.App.,8/12/10); [Note: No additional citation available as of 9/23/10].
NMHRC: Human Rights Division administrative trial provision, duty to respond, duty to appeal;
$63,657.05 judgment against employer
Controlling law. Pursuant t0 NMSA 1978, § 28-1-199(F) (2005), the HRC can set a matter for
hearing before a panel of the HRC board to try the case. Failure to timely respond and participate and
to appeal can result in a binding order. State of New Mexico Human Rights Commission v. Accurate
Machine & Tool Co., Inc., No. 29,003, 2010-NMCA-107, cert. den., 10/20/10, pp. 40-52,
ftp://barbulletin:barbulletin@/BB_01_19_11.pdf ; 2010 N.M. App. LEXIS 107 (8/25/10);
/nmcases/nmca/slips/CA29,003.pdf.
ADEA; age as determining factor, though it need not be the sole factor
Controlling law. This case in our 10th Circuit jurisdiction follows the U.S Supreme court case* on age
discrimination previously briefed here that held under the ADEA that proof must be that a age must
determining factor, but not necessarily the sole factor:
The Tenth Circuit has long held that a plaintiff must prove but-for causation to hold an employer liable
under the ADEA. See EEOC v. Prudential Fed. Sav. & Loan Ass'n, 763 F.2d 1166, 1170 (10th Cir.
1985) (quoting Perrell v. Financeamerica Corp., 726 F.2d 654, 656 (10th Cir. 1984)). Moreover, we
have concluded that this causal standard does "not require[] [plaintiffs] to show that age was the sole
motivating factor in the employment decision." Wilkerson v. Shinseki, 606 F.3d 1256, 1266 (10th Cir.
2010) (quotations omitted). Instead, an employer may be held liable under the ADEA if other factors
contributed to its taking an adverse action, as long as "age was the factor that made a difference." Id.;
accord Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S. Ct. 1701, 123 L. Ed. 2d 338 (1993)
(requiring an ADEA plaintiff to show that age had a "determinative influence on the outcome" of her
employer's decision-making process). Gross does not hold otherwise. Accordingly, Gross does not
disturb longstanding Tenth Circuit precedent by placing a heightened evidentiary requirement on
ADEA plaintiffs to prove that age was the sole cause of the adverse employment action.
Jones v. Oklahoma City Pub. Schs., No. 09-6108 (10th Cir., 8/24/10); 2010 U.S. App. LEXIS 17767;
110 Fair Empl. Prac. Cas. (BNA) 4; courts.gov/opinions/09/09-6108.pdf; * see Gross v. FBL Financial
Services, Inc., 129 S. Ct. 2343, 174 L. Ed. 2d 119 (2009).
FMLA: violation of employer’s written absence policies
Illustrative; not controlling law. The employer had written absence policies, two of which were:
1. Absence: Employees are required to report any absences directly to his or her manager or
supervisor.
2. Job Abandonment: Employees who are absent for two consecutive work days and who fail to
report their absences as required were subject to termination.
The employee said he needed to be absent because he was "feeling ill ... tired, lethargic, fatigue-ish,"
and "needed a few days to recuperate," but failed to follow the absence reporting policy. As you will
see when you read this decision, he had a long history of complaint and absences. To v. US Bancorp:
/court-decisions/court-rejects-fmla-claim-by-employee-who-felt-fatigue-ish-but-didnt-call-in/;
/To%20v%20US%20Bancorp.pdf.
Title VII: gender harassment, hostile work environment; constructive discharge; sufficiency of
remedial measures; keeping claimant informed employee; privacy concerns; damages (discussed in
the dissent)
Illustrative; not controlling law. How much need an employer inform a complainant of its remedial
measures in response to a complaint of sexual harassment complaint of a hostile work environment?
Typically in the past, the advice has been to protect employee privacy and to keep information to a
minimum. This case seems to go further, and there were two factors the appellate court dealt with:
1. The employer’s contention that the alleged violator was simply a “touchy person” who patted
men on the buttocks and, thus his conduct was gender neutral and not sexual harassment
was rejected on appeal, apparently because there was no evidence that the offender “pulled
men into his body” nor was there evidence of any complaints by men or by male patients.
2. In at least three portions of the opinion the court mentions that the employer either failed to
inform the complainant that it was taking action in an attempt to remedy the situation or failed
to follow up on the termination action that it told her that it was taking.
Accordingly the appellate court seemed persuaded that was evidence the employer failed to take the
claims seriously and that a reasonable jury could make that finding as a basis for its verdict. It cites
those failures as a possible basis for the jury’s finding that Midwest did not take Sheriff’s complaints
seriously. There’s more.
Though this case is not controlling law in our 10th Circuit jurisdiction, it raises question about the
nature and extent of how much an employer needs to inform a complainant of its remedial actions.
Read this case in detail and discuss it with your human resources expert and experience employment
law attorney. The trial verdict awarded $100,000 and the 8th Circuit Court of Appeals denied a post
trial motion regarding the jury verdict. Sheriff v. Midwest Health Partners, P.C., 8th Cir., No. 09-3367,
(8th Cir., 8/30/10); 2010 U.S. App. LEXIS 18104; 110 Fair Empl. Prac. Cas. (BNA) 161;
courts.gov/opns/opFrame.html.
Briefly, here are the key points:
Sheri Sheriff a licensed physical therapist employed by Midwest Health Partners in Nebraska
was asked in 2003 to run that department in a chiropractic clinic it had acquired.
During her work there one of the employed chiropractors, Dr. Meyer, began acting in a way
that made her uncomfortable [Note: I.e., unwelcome sexual behavior], including touching her
and putting his arm around her.
When she mentioned it one of the nurses she was told to “get used to it,” because “that’s just
the way he is.
That conduct continued (kiss on the forehead, touching a breast as he put his arm around
her), and she reported the problem to Midwest’s management and also wrote a letter to him
that such behavior was were “NOT okay!” and that she did not want further physical contact
with him. Meyers apologized to Sheriff and said it wouldn’t happen again.
In another aspect of this case, Midwest’s president, Dr. Vrbicky, was aware of a prior female
patient’s complaint involving Meyer, but no one at Midwest discussed Sheriff’s allegations with
Meyer until she learned of that complaint, plus of other instances involving another female
patient.
She then spoke to Midwest’s Practice Manager about the situation.
Meyers again began to touch, grab, and embrace Meyers, wrapping his arm around her and
touching her breasts.
She then retained an attorney, who wrote to Midwest, advising it “to take aggressive action to
protect itself,”[Question? What about protecting her?], and making several recommendations
to stop the chiropractor’s behavior.
Seven weeks later, in November 2005, Midwest met with Meyer and asked him to participate
in counseling and requested that he sign an acknowledgement of his inappropriate behavior:
he did neither, and
his behavior toward her took on a condescending and intimidating tone.
January 4, 2006, the employer sent the chiropractor a letter, and then in a January 13, 2006
meeting Midwest again set forth its remedial recommendations, and Meyers again refused to
participate
Ultimately, on February 23, he agreed to attend sexual harassment training, but only attended
one of five sessions.
During this same period she was told that Meyer would be terminated within 45 days, but he
was not, and she was given no reason for that failure to act.
On April 11, 2006, Sheriff resigned and brought a legal action against Midwest.
This case illustrates what not to do, or how to fail. Acting promptly and proactively and advising the
complainant on general terms (but also respecting employee privacy) that action is being taken still
ought to be sufficient: acknowledging his or her claim, taking steps to separate the claimant and
accused, adequately investigating, documenting the process, following up, etc. Be sensitive to the
realities of the situation and the parties, for example, this claimant was dependent on the accused for
her livelihood from rehabilitation referrals.
FMLA: need for written attendance policies, training and documentation
Illustrative; not controlling law. Once again, clearly written current policies and training in FMLA rights
and responsibilities resulted in success for the employer. Reviewing and bringing your policies current
is essential. Brown v. Automotive Components Holdings, LLC, and Ford Motor Co., No. 09-1641 (7th
Cir., 9/8/10); 2010 U.S. App. LEXIS 18737; courts.gov/tmp/1A1FFO3H.pdf.
FLSA: overtime damages for misclassified employees(s)
Illustrative; not controlling law. This 7th circuit case provides clarification about how damages could be
calculated when overtime is due for an employee misclassified as exempt and who was paid a fixed
salary for his or her hours worked. As you will recall, the Fair Labor Standards Act requires that non-
exempt employees be paid 1.5 times their regular hourly rates for hours worked over 40 in a
workweek. However, that still leaves open questions about what time periods(s) accurately represent
a fair sampling before applying the 1.5 multiplier. The 7th circuit used the following method for the
situation of a misclassified employee paid a fixed salary to work varying numbers of hours:
1. The regular rate is determined by dividing all of the hours worked in the workweek into the
salary for that workweek.
2. Because the resulting regular rate represents straight-time pay for all the workweek's hours
(including overtime ones), the employee is owed the product of multiplying one-half of the
regular rate (i.e., the "half" of "time and one-half") times the total overtime hours.
This method is based on Overnight Motor Transportation Co. v. Missel, 316 U.S. 572 (1942), the
involved analogous circumstances, which the United States Supreme Court noted was consistent
with longstanding Labor Department guidance. Urnikis-Negro v. American Family Property Services,
No. 08-3117 (7th Cir., 4/4/10); 2010 U.S. App. LEXIS 16126; 2010 WL 3024880 (August 4, 2010); 160
Lab. Cas. (CCH) P35,794; 16 Wage & Hour Cas. 2d (BNA) 803; courts.gov/tmp/1B0P60W0.pdf. Add
this 4th Circuit case to this formulation: Desmond v. PNGI Charles Town Gaming, No. 09-2189, No.
09-2190, No. 09-2192, No. 09-2254 (4th Cir., 12/14/11); 2011 U.S. App. LEXIS 702; ;
courts.gov/opinion.pdf/092189.P.pdf.
FMLA: employer’s heightened reporting requirement, possible mental impairment, need to consider
applicability for each set of facts and circumstances, fact question for jury
Illustrative; not controlling law. Whenever you see that an issue is a question of fact for a jury, assume
that this will be an expensive case even if the employer wins [litigation is expensive]. Once again,
stopping and thinking about and properly checking on before making a snap judgment. For example,
is there possibly some impairment that might make compliance with FMLA reporting requirements
difficult or impossible to comply with? The appellate court said that this was a close question, but did
note that medical evidence some mental impairment on the part of the employee. Saenz v. Harlingen
Medical Center, LP, 5th Circ., No. 09-40887, (5th Cir., 8/2/10); 2010 U.S. App. LEXIS 16553; 16 Wage
& Hour Cas. 2d (BNA) 705; courts.gov/opinions%5Cpub%5C09/09-40887-CV0.wpd.pdf.
Title VII: sexual harassment, unwelcome advances, propositioning, pervasive hostile work
environment, company policy, stereotyping, female on male; reverse sexual harassment
Illustrative; not controlling law. Both men and women are protected from sexual harassment, and as
such company policy needs to state that. Further, employers should not allow stereotypes about
either male or female employees to affect their decisions when taking corrective or adverse
employment actions. Essentially, a female employee, Munoz, was making unwelcomed advances to a
male, Kamas employee. The two employees were passenger assistants at the airport. The man was
recently widowed. The woman pursued him persistently, even sending him love letters. Coworkers
speculated his rejections indicated that he was gay. Efforts to report this did not result in an effective
response from the employer. The company’s general manager told him he ought to walk around
singing to himself, “I’m too sexy for my shirt.” Ultimately, he consulted a psychologist about his
emotional distress. His performance deteriorated and his employment was terminated, despite his
previous satisfactory performance. EEOC filed suit on his behalf. The trial court granted summary
judgment in favor of the employer, holding that Lamas had admitted that a “reasonable man” would
not have found Munoz’s conduct to be so severe or pervasive as to constitute harassment, although
Munoz did because of his “Christian background.” However, the appellate court reversed because:
It cannot be assumed that because a man receives sexual advances from a woman that those
advances are welcome. Lamas suggested this might be true of other men (the district court decision
noted that Lamas “admits that most men in his circumstances would have ‘welcomed’ “ her
advances). But that is a stereotype and welcomeness is inherently subjective, (since the interest two
individuals might have in a romantic relationship is inherently individual to them), so it does not matter
to welcomeness whether other men might have welcomed Munoz's sexual propositions.
Further, it also decided that a reasonable jury could find that the conduct was severe or pervasive
enough to create an environment that Lamas reasonably perceived as hostile and abusive, and that
the employer’s response was insufficient because not taken remedial action against Munoz, the
alleged harasser.
EEOC v. Prospect Airport Services, Inc., No. 07-17221 (9th Cir., 9/3/10); 2010 U.S. App. LEXIS
FLSA: flat-rate commissions; retail commission exception to overtime requirements
Illustrative – binding authority only in the 3rd Circuit; not controlling law, but perhaps persuasive
reasoning. Retail commission sales can be an exception to FLSA overtime pay requirements.
Employers using this type of pay structure may want to review things in light of the appellate court’s
consideration of these factors:
Is the flat rate disproportionate to price, such that at perhaps below 5%, the flat rate would be
so disproportionate to price that it would not qualify as a commission?
Does the flat-rate commission plan encourage sales staff to work more efficiently or accept
undesirable working hours?
Does the flat-rate commission plan apply only to higher-income employees?
Does the flat-rate commission plan reduce hiring incentives?
Read the entire case for the details about why these are important factors. Parker v. NutriSystem,
Inc., No. 09-3545 (3rd Cir., 9/8/10); 2010 U.S. App. LEXIS 18691; /us-3rd-circuit/1537485.html; also
cited as Wynn
v. NutriSystem Inc., No. 09-3545, 2010 U.S. App. LEXIS 18691 (3rd Cir., 9/7/10).
ADA, ADAAA: cancer, reasonable accommodation, in remission
Illustrative; not controlling law. The issue of what qualifies as an impairment as redefined by the
ADAAA will be litigated until a definitive answer finally is obtained from a court with the power of
controlling authority for our 10th Circuit Court of Appeals, which would either be the 10th Circuit itself
or the United States Supreme Court. Until then we’ll have to make do with illustrative and/or
persuasive authority from other courts. In this case a federal trial court in Indiana has provided us with
a case to consider. See Hoffman v. Carefirst of Fort Wayne Inc., d., No. 1:09-cv-00251, 8/31/10;
/scholar_case?
case=15680179519489447018&q=Hoffman+v.+Carefirst+of+Fort+Wayne+Inc.&hl=en&as_sdt=1000000
Basically, the trial judge relied on the provision of the ADAAA stating that “an impairment that is
episodic or in remission is a disability if it would substantially limit a major life activity when active”
and ruled that an employee with cancer is considered to be disabled under the Act, even if his
condition is in remission at the time the alleged adverse action taken against help by his employer.
Because of the extensive details, read the case for complete information. Briefly stated, though:
Hoffman was diagnosed with Stage III Renal Carcinoma,
he was operated on to remove his left kidney;
he returned to work without restrictions or limitations delivering home medical devices, such
as wheelchairs and oxygen tanks to patients;
his job description required him to be “available after hours and on call”;
his typical schedule was 9 a.m. to 5 p.m. on weekdays;
he worked his regular schedule from January 2008 through January 2009, and did not miss
significant time from work, other than for regular doctor visits;
On January 26, 2009, he met with his supervisor, who told him that the company had acquired
a contract with a hospital system that would require service technicians, including Hoffman, to
work substantial amounts of overtime each week, to do a night shift once and week, and to be
on call on weekends;
Hoffman replied he was concerned that required schedule would “put me in the grave”;
he obtained a note from his doctor that limited him to “8 hours/day, 5 days/week.”; and
at that point his employment was terminated.
There was no evidence his employer explored reasonable accommodations or alternatives with him
or considered whether there would be any undue hardships in it for the employer.
NLRA: "Shame On" banners do not violate NLRA, secondary boycotts
Controlling law. Essentially, a secondary boycott means an action by a labor union against a company
doing business with a [primary]company against whom the union has a dispute. The union displayed
large banners at locations of three companies who did business with the primary employers. Its
banners were 3 or 4 feet high and 15 to 20 feet long and read "SHAME ON [secondary employer]" in
large letters, and on each side was displayed "Labor Dispute" in smaller letters. At the RA Tempe
restaurant location the middle section of the banner read, "DON'T EAT 'RA' SUSHI." The National
Labor Relations Board held that Congress did not intend Section 8(b)(4)(ii)(B) of the National Labor
Relations Act to prohibit the peaceful stationary display of such a banner. Carpenters & Joiners of Am.
(Eliason & Knuth of Ariz. Inc.), 335 N.L.R.B. No. 159 (2010);
http://www.nlrb.gov/shared_files/Board%20Decisions/355/v355159.pdf.
Title VII: Hostile work environment, sever and/or pervasive
Illustrative; not controlling law. What behavior is severe enough to amount to gender harassment?
Obviously, there is no single answer, but this case of a single instance of uninvited and unwelcome
groping, rubbing and tussling provides a good example. Cynthia Berry began working as a carpenter
with the Chicago Transit Authority (CTA) in the year 2002 as a carpenter, and she was one of two
female employees in a group of fifty employees that worked in CTA’s Area 315. In that area
employees took breaks in an area with a picnic table at which they often usually played cards:
Around January 17 or 18, 2006, Berry took a break and sat at a table with three male
employees.
Then a male employee, Carmichael, seated himself on the bench with his back toward Berry,
straddled the bench, and began rubbing his back on her shoulder.
She jumped up, told him to stop, and moved to the other end of the table.
Another employee told Berry to get up, but she remained seated.
Berry alleged that Carmichael approached her and lifted her from behind, grabbed her
breasts, rubbed his body against her, forcefully threw her down and then pushed her into a
fence.
[Note: However, there are a great many facts and contentions at play here, so reading this case for all
of the details is highly recommended.]
The next day Berry reported this incident to Gorman, one of her supervisors, who told her that she
was a “pain in the butt”, could lose her job if she reported the incident, and that he was “going to do
whatever it takes to protect CTA.” Nonetheless, Gorman reported the incident to a CTA EEO
investigator. Berry reported the incident to the police. Both the EEO and police investigations found
that Carmichael had been the aggressor. Berry filed claims alleging gender discrimination, hostile
work environment, and retaliation. Without getting into procedural maneuverings and rulings in the
trial and appellate courts, ultimately the appellate court allowed her hostile work environment claim to
proceed to trial because a single act such as this could be found by a reasonable jury to be severe
enough to be a severe occurrence creating a hostile work environment. Important factors for the
appellate court were that:
A single act can create a hostile environment if it is severe enough, and that. Carmichael’s
actions, as alleged by Berry, qualify as such an act.
Further, based solely on Berry’s uncorroborated testimony of Gorman’s remarks that he was
“going to do whatever it takes to protect CTA” could be a sufficient basis for a “reasonable
factfinder” could conclude that CTA, through its manager, had “maliciously thwarted any
legitimate investigation, and that CTA was therefore negligent or worse in responding to
[Berry’s] report of harassment.”
Berry v. Chicago Transit Authority, 7th Cir., No. 07-2288, (7th Cir., 8/23/10); 2010 U.S. App. LEXIS
17605; 109 Fair Empl. Prac. Cas. (BNA) 1831; courts.gov/tmp/0W0P462S.pdf.
FMLA: absence after certification of release to return to work, termination, notice of eligibility and
rights and responsibilities
Illustrative; not controlling law. At what point do practical considerations and pragmatism become
make more sense than rigidly applying a law, especially when compared with the expense of
litigation? In the past few weeks I have commented on the importance of training in FMLA rights and
responsibilities, particularly after the recent amended regulations have been issued. This is yet
another case where taking a few extra minutes to investigate a situation or to double-check on things
probably could have saved a lot of trouble , effort and money. Here are a few possible considerations:
Require periodic training in FMLA requirements and company policies.
In FMLA situations, ask the employee for a medical certification, and employees must be
notified of the possible consequences of failing to provide proper FMLA certification.
Before taking an adverse employment action against an employee who fails to return to work
despite a "negative certification" confirming that he or she is not incapacitated, carefully review
all of the relevant facts and circumstances to ensure that the employee has received all of the
appropriate FMLA notices and had an adequate chance to provide a proper medical
certification or to adequately explain the situation.
In this case the employee remained absent after her physician provided the employer with a
medical certification confirming that she could return to work. Did the employee know of that
certification? Had the employee been adequately trained in rights and responsibilities of the FMLA?
Did the employer know that the employee’s physician was not the same one who filled out the
certification ad that her regular physician would not have done that? This case has many twists and
turns in the details, so it is important to read it and understand the importance of having accurate
information before taking an adverse employment action. Yes, we’re all busy, but nowhere as busy as
we would be in defending claim of violation of statutory rights. Branham v. Gannett Satellite

Information Network, Inc., No. 09-6149 (6th Cir., 9/2/10); 2010 U.S. App. LEXIS 18328; 2010 FED
App. 0283P (6th Cir.); courts.gov/opinions.pdf/10a0283p-06.pdf.
FMLA in the 8th Circuit Court of Appeals - so these cases are illustrative rather than controlling law
Statement of Coverage By Supervisor
The employee’s supervisor apparently told her that she was entitled to FMLA leave. The employee’s
husband had become ill and taken FMLA leave, and his wife also granted FMLA leave to care for him.
About a year later he died and she called her supervisor to advise him of the death, was distraught,
and her supervisor offered to get her the information she needed, and she then took three days of
bereavement leave. On September 11th her supervisor called he to tell her leave had ended on the
7th, and he asked how much more leave she needed before returning to work, she was crying heavily
and was clearly distraught, and she told him thirty days. Her supervisor Karnes told her "okay, cool,
not a problem, I'll let HR know." She was not told she needed further approval. On September 12th
her supervisor contacted human resources, which denied her request. The appellate court ruled that
whether she could have reasonably believed she was requesting FMLA leave, even though she did
not mention it. Factors considered by the appellate court were:
her husband had suddenly died,
she was noticeably distraught,
she had said that she was unable to work the night shift because it reminded her of her
husband,
her request for additional leave occurred during a brief conversation in which her supervisor
told her that her FMLA leave had expired and asked if she required additional leave, which a
jury might reasonably interpret as a request for additional FMLA leave.
Murphy v. FedEx National LTL, Inc., Nos. 09-3473/3518 (8th Cir., 6/26/10); 2010 U.S. App. LEXIS
17834; courts.gov/opns/opFrame.html - then find by case number, e.g., YY-NNNN.
Employee Obligations
Violation of company written attendance policy, which provided for accumulation of points for varying
types of absences, and FMLA leave was not one of them. When she returned from leave her
supervisor told her that additional attendance problems, including extended unauthorized breaks,
would put her job in jeopardy. The employer’s human resources manager then met with Despite this
warning, she took an extra-long break later that day, which resulted in prompting her suspension. The
employer’s human resources manager then met with her to discuss her deficiencies and ultimately
terminated her because she violated the Level II warning after returning to work. On appeal, the court
ruled that the evidence suggested that the company "would have made the same decision
notwithstanding Estrada's exercise of her FMLA rights." Estrada v. Cypress Semiconductor Inc., No.
09-3005 (8th Cir., 8/17/10); 2010 U.S. App. LEXIS 17121; courts.gov/opns/opFrame.html - then find
by case number, e.g., YY-NNNN.
Must provide adequate notice
The appellate court upheld the trial court's ruling termination of employee’s employment when he
returned to work after being absent for four days was not a violation of his FMLA rights because he
failed to provide adequate notice of his need for FMLA leave. On appeal, court did reach the question
of whether he had a serious health condition under the statute because "Absent the required notice,
the employer's duty to provide FMLA leave is not triggered." The employee had "ample opportunity to
inform his employer that his condition was more serious than [his] previous back injuries". Further, he
failed to submit a written injury report to his employer or accept medical attention. Instead, he merely
called in sick four consecutive workdays without providing any additional information. Considering the
totality of this evidence, along with a lack of evidence showing a connection between the plaintiff's
previous back injuries and the injury prompting his four-day absence, the appellate court concluded
he did not provide adequate notice to his employer and therefore the employer's responsibilities
under the FMLA were never triggered. Brown v. Kansas City Freightliner Sales, Inc., No. 09-3324 (8th
Cir., 8/19/10); 2010 U.S. App. LEXIS 17257; courts.gov/opns/opFrame.html - then find by case
number, e.g., YY-NNNN.
[NOTE: In previous briefs I have mentioned that cases such as this might indicate to employers that
training in the FMLA requirements might be prudent to alert employees, supervisors, managers and
executives to FMLA rights and responsibility so that expensive litigation could probably be avoided.]
Title VII: religious charitable group, not-for-profit
Illustrative; not controlling law. World Vision describes itself as "a Christian humanitarian organization
dedicated to working with children, families and their communities worldwide to reach their full
potential by tackling the causes of poverty and injustice." It is not affiliated with any established
church. The Ninth Circuit Court of Appeals ruled that, as such, it may discharge employees for
religious reasons because it qualifies for the religious exemption (codified in 42 U.S.C. § 2000e-1(a))
from Title VII's prohibition against employment discrimination. The test for such status is that the
group:
1. is organized for a self-identified religious purpose (as evidenced by Articles of Incorporation or

similar foundational documents),
2. is engaged in activity consistent with, and in furtherance of, those religious purposes, and
3. holds itself out to the public as religious.
The group discovered that two employees Youngberg "denied the deity of Jesus Christ and
disavowed the doctrine of the Trinity," despite their previous personal statement and
acknowledgments. Those employees held secular jobs, such as maintaining technology, performing
miscellaneous office work, and coordinating shipping. Nonetheless, the group was held to be exempt
from Title VII. Spencer v. World Vision, Inc., No. 08-35532 (9th Cir. Aug. 23, 2010); 2010 U.S. App.
LEXIS 17602; 109 Fair Empl. Prac. Cas. (BNA) 1793; courts.gov/datastore/opinions/2010/08/23/08-
35532.pdf.
[NOTE: The dissent stated a different test that might be argued elsewhere in other federal appellate
circuits. In determining whether an entity is a "religious corporation, association, or society":
1. is it organized for a religious purpose,
2. is it engaged primarily in carrying out that religious purpose,
3. does it hold itself out to the public as an entity for carrying out that religious purpose, and
4. does engage primarily or substantially in the exchange of goods or services for money beyond
nominal amounts?]
Title VII: religion, First Amendment, separation of church and state, gender discrimination, ministerial
exception
Controlling law. As explained by our 10th Circuit Court of Appeals,
. . . the ministerial exception preserves a church’s essential right to choose the people who will teach
its values, teach its message, and interpret the doctrines . . . free from the interference of the civil
laws.
That exception applies to ordained ministers, and it also extends
. . . to any employee who serves in a position that is important to the spiritual and pastoral mission of
the church.
Monica Skrzypczak worked for the Roman Catholic Diocese of Tulsa in the department of religious
information overseeing the creation and implementation of the goals of the department and its
policies and programs and the administrative functions of the department. She also taught or
facilitated the presentation of numerous religious courses in the Pastoral studies Institute, which is a
part of diocese. Part of the mission of the foundation was to
. . . provide a solid foundation in Catholic theology to educate, nourish, strengthen and renew the
Catholic faith and Church in Oklahoma.
Her discrimination claim included allegations of violation of Title VII. The church moved to have her
claims dismissed because the diocese was exempt from such suit under the doctrine of ministerial
exemption. The 10th Circuit Court of Appeals accepted the contention of the diocese on the grounds
that her duties were sufficiently supportive of the spiritual and pastoral mission of the church to come
within the extent of the ministerial exception. Skrzypczak v. Roman Catholic Diocese of Tulsa, Nos.
09-5089 and 09-5095 (10th Cir., 7/13/10); 2010 U.S. App. LEXIS 14295; 109 Fair Empl. Prac. Cas.
(BNA) 1293; 93 Empl. Prac. Dec. (CCH) P43,932: courts.gov/opinions/09/09-5089.pdf.
ADA; ADEA; Rehabilitation Act; Privacy Act: obesity, diabetes, unable to perform all essential
functions of job
Controlling law. As stated so many times in these briefs, focus on performance rather than condition.
Obesity in and of itself does not determine whether a person is disabled. Also, it is not sufficient for an
employee to show he or she can perform most of the essential functions of his or her job – the
employee must be able to perform all of the essential functions, even if such is only occasionally
necessary. In this case the employee failed his physical examination. Summary judgment in favor of
the employer in the trial court was affirmed by the Tenth Circuit Court of Appeals on these grounds:
1. the plaintiff was not otherwise qualified to hold the position as required by the Rehabilitation
Act;
2. the defendant had a non-discriminatory reason for removing plaintiff that was not pretextual;
and
3. the plaintiff did not allege that the accessing of his health records was intentional misconduct,
as required by the Privacy Act.
Though the employee contended that for the two years leading up to his demotion he ably performed
his duties as a boiler plant operator, the appellate court
decided he was not "otherwise qualified" under the Act because his job required him be able to
respond quickly to emergencies and navigate ladders with a weight limit of 300 pounds [he weighed
338]. Further, "[a]lthough [the plaintiff] testified that 95 percent of his work was '[l]ight duty,' and he
was only occasionally required to climb on ladders, in times of crisis, he might need to act quickly and
move with dispatch.” Finally, "The record indicates that [the plaintiff] would pose a danger to himself
and others should he fall from a ladder, plus the court was concerned of the potentially disastrous
effects if he was unable to shut down a boiler if it malfunctions, leading to a possible explosion.
Wilkerson v. Shinseki, No. 09-8027 (10th Cir., 6/2/10); 606 F.3d 1256; 2010 U.S. App. LEXIS 11135,
109 Fair Empl. Prac. Cas. (BNA) 660;93 Empl. Prac. Dec. (CCH) P43,904; courts.gov/opinions/09/09-
8027.pdf.
PDA, ADA: pregnancy, complex medical conditions, excess of caution, failure to objectively evaluate
employee’s ability to perform
Illustrative; not controlling law. As seen so many time in the past, decisions made by employers or
supervisors about physical, mental or other conditions may be erroneous and violate anti-
discrimination laws. This employer transferred a pregnant employee from her welding position into a
light duty position. The employee was pregnant with her third child shortly after starting as a welder.
Previously she had suffered a miscarriage. Concern over industrial chemicals in the workplace, plus
climbing and heavy lifting and pulling influenced the decision. The employee’s physician opined that
she would not have a problem, but the employer requested the employee to obtain a second opinion
from the physician, which she did. Her transfer to duties in the tool room had a daytime schedule, but
a later change to an evening schedule interfered with her child care schedule. After transferring to
another obstetrician it was discovered that she had a condition requiring bed rest. When she
presented documentation of that condition she was told she was being fired for being pregnant. She
did not have sufficient time on the job to qualify for FMLA or other leave. This complicated case
illustrates that when complex medical conditions arise, competent medical expertise needs to be
sought by the employer rather than making a decision based on suspicion, assumption, or subjective
information, even if that decision seems to be in the employee’s best interest. Spees v. James
Marine, Inc., No. 09-5839 (6th Cir., 8/10/10); 2010 U.S. App. LEXIS 16477; 2010 FED App. 0236P
(6th Cir.); courts.gov/opinions.pdf/10a0236p-06.pdf.
Title VII: independent contractor, right to control
Controlling law [because the reasoning is based on a United States Supreme Court case]. This is a
good reminder about who is not an employee. The Title VII discrimination claim was correctly
dismissed because the claimant was not an employee, but rather an independent contractor. Murray
v. Principal Financial Group, No. 09-16664 (9th Cir., 6/17/10); 2010 U.S. App. LEXIS 15327;
courts.gov/datastore/opinions/2010/07/27/09-16664.pdf . Relying on Nationwide Mutual Insurance
Co. v. Darden, 503 U.S. 318, at 323, (1992); http://www.law.cornell.edu/supct/html/90-1802.ZS.html;
the 9th Circuit Court of Appeals wrote, "when determining whether an individual is an independent
contractor or an employee for purposes of Title VII, a court should evaluate 'the hiring party's right to
control the manner and means by which the product is accomplished.'" The factors to consider are:
1. the skill required;
2. the source of the instrumentalities and tools;
3. the location of the work;
4. the duration of the relationship between the parties;
5. whether the hiring party has the right to assign additional projects to the hired party;
6. the extent of the hired party's discretion over when and how long to work;
7. the method of payment;
8. the hired party's role in hiring and paying assistants;
9. whether the work is part of the regular business of the hiring party;
10. whether the hiring party is in business;
11. the provision of employee benefits; and
12. the tax treatment of the hired party.
ADA; FMLA: police officer, fitness-for-duty exam allowed
Illustrative; not controlling law. Neither the ADA nor the FMLA were violated by the City of Yakima
when it required an officer returning to duty after leave to submit to a fitness-for duty examination.
Officer Brownfield sustained a head injury and over time his behavior began to become erratic and
disturbing, increasingly so with time. At issue was hose many fitness-for-duty-examinations (FFDE)
could be conducted. Such examinations must be “job-related and consistent with business necessity.”
42 U.S.C. § 12112(d)(4)(A), requires that disability examinations must be based on a valid “business
necessity”, and the appellate court stated that the standard “is quite high, and is not to be confused
with mere expediency.” Brownfield apparently decide he had been examined enough times and
refused to participate in an FFDE before a termination hearing, and his employment was then
terminated. As you will recall, FMLA regulations state, “[n]o second or third opinions on a fitness-for-
duty certification may be required.” 29 C.F.R. § 825.312(b). Brownfield contended that Yakima
violated this provision by requiring him to submit to the FFDE after his primary care physician
allegedly cleared him for duty. The appellate court rejected this argument, stating that “No reasonable
juror could misread [the] letter as stating that Brownfield had recovered from the psychological issues
that rendered him unfit for duty.” Further, Yakima did not request “second or third opinions” after
Brownfield’s primary care physician refused to clarify his statement. Further, the appellate court
noted, “. . . Yakima gave Brownfield several, additional opportunities to obtain a proper clearance by
referring him to other physicians.” Under those circumstances, the appellate court ruled that liability
under the FMLA would not be imposed on the employer. Concerning the ADA claim, the appellate
court did not find a violation of that act either. Again, recall the caution would dictate that the focus
needs to be factors such as behavior and its effect on safety, standards of performance, etc.
Brownfield v. City of Yakima, No. 09-35628 (9th Cir., 7/27/10); 2010 U.S. App. LEXIS 15324;
Title VII: harassment by third parties, patients, vendors, etc.; direct harassment, hostile work
environment; retaliation; failure to train
FYI illustration. A home health care employer continued to ignore at least 25 complaints by home
health care providers a sexually hostile work environment. Further, to agency failed to provide
adequate training in how to deal with such behavior. Equal Employment Opportunity Commission v.
Nurse One/Team One, LLC, (Civil Action No. 4:09-cv-90, U. S. District Court for the Eastern District of
Tennessee, Winchester Division).
Union: punitive damages, common-law duty of fair representation
Controlling law. Punitive damages area allowed against a union for breach of duty to provide fair
representation (DFR) to one (or more) of its members. The determination of compensatory damages
and punitive damages required two separate and distinct processes:
compensatory damages are determined on facts involving lost income (and perhaps other
factors, whereas
punitive damages require consideration of the concept of justice and of aggravating and/or
mitigating circumstances, punishment and deterrence.
See NM UJI 13-1827, Punitive Damages, which deals with whether conduct was malicious, reckless,
wanton, fraudulent, or done in bad faith. In this case the union appeared to have failed to act in
situations of significant discriminatory behavior or hostile work environment. Wide discretion is
allowed to a union, and factors for a union to consider in deciding whether and how to provide
representation include, but are not limited to, the nature of the acts alleged in a grievance and
whether representation is in the best interests of the union, and mere negligence is not a basis for a
DFR action. As always, read the entire case for complete details. Akins v. United Steel Workers of
America, AFK-CIO, CLC, Local 187, 2010-NMSC-031; /nmcases/NMSC/2010/10sc-031.pdf.
Title VII: discrimination nursing home, racially hostile work environment, perceived patient preference,
racial comments from co-workers
Illustrative; not controlling law. Though nor controlling, this case illustrates persuasive reasoning.
Perceived racial preferences of nursing home residents were not valid basis for a defense to a Title
VII racial discrimination claim. Brenda Chaney, a certified nursing assistant (CNA), worked in a
nursing home. A resident did not want assistance from an African-American. The employer then
admittedly issued a daily schedule which included a directive patient "Prefers No Black CNAs." The
employer also admitted banning Chaney from assisting that resident. Also, Chaney was subjected to
racially charged comments from co-workers. Three months after starting with the nursing home,
Chaney was fired for allegedly making a comment using bad language – while lifting a resident she
was claimed to have said “she’s shitting.” The district court granted the employer’s motions to dismiss
her claims alleging racially hostile environment and discriminatory discharge. On appeal, the Seventh
Circuit Court of Appeals reversed those lower court rulings:
Obviously racial slurs amounted to a hostile work environment, and daily reassignment of
Chaney away from the resident reminded her of the discriminatory treatment.
The employer’s defense of preferences by residents was rejected. Though gender preference
may be honored in sensitive health care situations, racial ones cannot. Gender may be a bona
fide occupational qualification for accommodating a patient’s privacy interest, but there is no
such privacy interest associated with race. For example, “Just as the law tolerates same-sex
restrooms or same-sex dressing rooms, but not white-only rooms, to accommodate privacy
needs, Title VII allows an employer to respect a preference for same-sex health providers, but
not same-race providers.”
Chaney v. Plainfield Healthcare Center, No. 09-3661 (7th Cir., 7/20/10); 2010 U.S. App. LEXIS 14804;
courts.gov/tmp/ZP1FFQ8B.pdf.
FMLA: insubordination, headache, failure to indicate FMLA leave
Illustrative: not controlling law. More and more courts are ruling that an employer’s obligations under
the FMLA arise only after an employee gives sufficient notice of a serious medical condition and gives
sufficient information that FMLA leave is required. Thus, while it is not necessary that FMLA leave be
stated, an employee's information is sufficient notice if it gives the employer enough information to
reasonably conclude that the employee may need leave for an FMLA-qualifying reason. [Note: This
kind of information ought to be an essential element of FMLA training for employees, supervisors,
managers and executives. If an employer can show proper FMLA training, notice cases such as this
would not wind up in expensive litigation. Proper training about rights and responsibilities was one of
the key points in the Ellerth/Faragher cases.] In this case the issue was whether an adverse
employment action was based on a valid business purpose or on discrimination or violation of FMLA
leave rights. Because the facts in this case are specific, read the case. Briefly though, the employee’s
headache was no excuse for his insubordination [Note: You will also recall that it is important, among
other things, to focus on behavior rather than the disability or condition of the employee.] Gipson v.
Vought Aircraft Industries, Inc., No. 09-6026 (6th Cir., 7/13/10); 2010 U.S. App. LEXIS 14383,*;2010
FED App. 0420N (6th Cir.); courts.gov/opinions.pdf/10a0420n-06.pdf.
ADEA: no disparate treatment, not similarly situated, mixed motive; summary judgment for employer
Controlling law. The key to success of the employer in this case is that it had a legitimate non-
discriminatory reason for firing the employee. Patrick Medlock’s UPS truck collided with a gate that
then became embedded in the front bumper. He claimed the truck must have malfunctioned, but
subsequent tests ruled out malfunction. He was fired. In his age discrimination case he alleged that
there had been eight similar instances in which drivers had committed similar misconduct. In seven of
the cases the collisions were mitigated by weather and road conditions. The eighth case differed from
Medlock’s because the driver admitted his mistake and was remorseful about it. The three-step test in
such cases was (1) proof by Medlock that he was in a protected class and was replaced by an
employee who was not, (2) showing by the employer of a valid business propose for the firing, and (3)
proof by Medlock that such was a pretext for discrimination. The Tenth Circuit Court of Appeals
pointed out that mixed-motive ADEA claims are barred under Gross v. FBL Financial Services, No.
08-441, ____ U.S. ____, 6/19/09); 2009 U.S. LEXIS 4535. His second contention was that his direct
supervisor had made a comment demonstrating age discrimination. That failed because the court
found it was weak evidence, plus Medlock admitted his manager had no authority to termination or
reinstatement. Medlock v. UPS, Inc., No. 09-5109 (10th Cir., 6/22/10); 2010 U.S. App. LEXIS 12770;
109 Fair Empl. Prac. Cas. (BNA) 1010; courts.gov/opinions/09/09-5109.pdf.
Title VII: gender
Controlling law. In this case the employer did not have a legitimate non-discriminatory reason for its
adverse employment action. The three-step test in such cases was (1) proof by Lowber that she was
in a protected class and was replaced by an employee who was not, (2) showing by the employer of a
valid business propose for the firing, and (3) proof by her that such was a pretext for discrimination.
Della Lowber worked as an Animal Control Officer (ACO) from June of 1990 until January of 2004, at
which time budgetary concerns necessitated elimination of that position. In 2005 the city decided to
create an APO position. Lowber applied, but a male applicant was hired instead. The dispute was
over whether part time work would be allowed. She had expressed in part time work. Problems for the
city arose when it did not have an ordinance or policy against part time work, her testimony that she
didn’t say she didn’t want part time work, testimony from a witness she needed the job didn’t care if it
was part time, she had previously been given permission for part time work, plus the mayor testified
he had run a side business while in office. Testimony of other witnesses affirmed Lowber was
competent to perform the job. She won. The Tenth Circuit Court of Appeals stated that “Pretext may
be shown by such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in
the employer’s proffered reasons . . . that a reasonable factfinder could rationally find . . . that the
employer did not act for [its stated reasons].” Lowber v. City of New Cordell, Okla., No. 09-6310 (10th
Cir., 5/19/10); 2010 U.S. App. LEXIS 10220; 109 Fair Empl. Prac. Cas. (BNA) 838;
FMLA: cleanup assistance held unrelated to mother’s hepatitis, “direct care” compared with “indirect
care”
Illustrative; not controlling law. As always, with rulings that are not controlling law in our jurisdiction,
consult with legal counsel before proceeding with and adverse employment action such as this case
did. However, at some point our jurisdiction may find the reasoning of this case persuasive (as
opposed to binding or controlling). Joe Lane, a medical Technologist at Pontiac Osteopathic Hospital,
had been granted FMLA leave to care for his mother, with whom he lived. She suffered from diabetes,
high blood pressure, weight loss and arthritis and needed to be provided with food and to be driven to
appointments with health care providers. For four months this was not challenged by his employer,
but when he missed four days of work he violated hospital personnel absence policies by failing to
call in. His reason for being absent was that when it rained the basement flooded and that the "flood
cleaning days" should be excused because his mother had hepatitis and the stagnant water was a
"breeding ground" for the disease. Rejecting that reason, the Hospital fired him. At trial the judge
granted summary judgment in favor of the employer. Though he had not previously mentioned his
mother’s hepatitis, the judge disregarded that matter and considered the following factors significant:
cleaning the flooded basement was not listed on the FMLA certification form as duties related
to her serious medical condition;
he had not established that cleaning hers basement met the definition of "caring for" a family
member with a serious health condition;
he could not demonstrate that her hepatitis was in danger of being aggravated if the basement
was not immediately cleaned; and
even disregarding those factors, his request for leave to clean her basement failed to put the
employer on notice of the need for FMLA leave.
Over the years courts have expanded the scope of the definition of "caring for" as an FMLA leave
entitlement. This case counters that trend by distinctly defining the difference between those activities
that provide "direct" care to the family member (e.g., providing a meal or transport, or sitting bedside)
and those that provide "indirect" care (e.g., salvaging mom's basement). Although the former regularly
qualify for FMLA leave, the latter typically do not. Lane v. Pontiac Osteopathic Hospital, No. 09-12634
(United States District Court, E.D. Michigan, Southern Division, 6/21/10; /scholar_case?
case=16361142005570212643&hl=en&as_sdt=2&as_vis=1&oi=scholarr; read this article for further
discussion of the matter and important considerations: /care-for-family-member/cleaning-up-moms-
flooded-basement-not-enough-to-trigger-fmla-leave/.
EEOC: leave, automatic termination policies
A cautionary article: EEOC Cracks Down On Automatic Termination Policies Following Medical
Leave, by Ingrid N. Culp and Pamela J. Abbate-Dattilo;
/articles/employment/empl_1007_inc_pja.html; If you cannot find this article, I have a copy in RTF
format.
FMLA, ADA: FMLA intermittent leave, diabetes medication side effects, tardiness, work breaks
Illustrative; not controlling law. A diabetic employee’s medication side effects were frequent tardiness
and frequent breaks for urgent urination and bowel movements. He worked in a call center and his
condition interfered with the company’s responsiveness and productivity. He was fired and his FMLA
violation claim failed because intermittent leave is for such toilet breaks aren’t what FMLA intermittent
leave was intended for; it is intended for situations in which the employee is unable to attend work at
all. Mauder v. Metropolitan Transit Authority of Harris County, No. 05-20299, 446 F.3d 574 (5th Cir., );
2006 U.S. App. LEXIS 9306; 152 Lab. Cas. (CCH) P35,125; 87 Empl. Prac. Dec. (CCH) P42,361; 11
Wage & Hour Cas. 2d (BNA) 628; courts.gov/opinions%5Cpub%5C05/05-20299-CV0.wpd.pdf. [Note:
However, this situation could well be an ADA problem, which would then involve the employer seeking
expert medical information, conducting interactive accommodation discussions with the employee,
and determining what reasonable accommodations, if any, could be made without undue hardship to
the employer.]
ADA; FMLA: fitness-for-duty exam doesn’t support "regarded as disabled" claim
Illustrative; not controlling law, and this case illustrates that
employers are permitted to use reasonable means to determine whether an employee’s

troubling behavior or behavior-related job difficulties limit that person’s ability to do his or her
job, and
that such reasonable means do not support an ADA claim.
“Fitness-for-duty” exams typically have been considered by courts to be a reasonable means to make
that determination, and reasonableness can be shown when the employer can articulate legitimate,
non-discriminatory reasons to question an employee’s ability to perform his or her duties. Charlene
Wisby was a city emergency dispatcher, and as such had to have the ability to focus and concentrate
at all times. Her FMLA application stated that she had a serious health condition that rendered her
unable to perform the essential functions of her job. The employer required a medical examination to
ascertain her fitness for duty to safely continue in her job, and the examiner’s report stated she was
unable to do that. As you will recall, the ADA defines a person is as disabled if he or she is:
actually disabled,
has a record as disabled, or
is regarded as disabled.
The purpose of the term “regarded” is to avoid erroneous perceptions or stereotypes that might
disadvantage individuals with impairments not of a nature or extent to be an actual disability. In
affirming the summary judgment dismissal by the trial court, the appellate court stated that her
employer did not “mistakenly” believe that Wisbey had an impairment substantially limiting her ability
to work because her condition admittedly and actually rendered her unable to do her job. Importantly
too, the appellate court noted that a statement of unfitness from a physician indicates an actual
condition and thus is not an erroneous perception or stereotype. Wisbey v. City of Lincoln, Nebraska,
No. 09-2100 (8th Cir., 7/6/10); 2010 U.S. App. LEXIS 13684; courts.gov/opns/opFrame.html.
Negligence: Ill employee driving home, automobile accident, employer liability
Illustrative; not controlling law. An ill employee was allowed to drive home from work after complaining
of lightheadedness from aromas resulting from bug spraying the workplace. She caused a reared
automobile crash while driving home and told the police officer she felt lightheaded before the
accident. The person in the vehicle she struck sued the employer for negligence, and the appellate
court ruled the case could proceed to trial. Bussard v. Minimed Inc., 105 Cal. App. 4th ,798, 129 Cal.
App. Rptr. 2nd (2003); /scholar_case?
case=2370357006970841034&q=Bussard+v.+Minimed+inc.&hl=en&as_sdt=10000000002&as_vis=1.
FLSA: altering time sheets, manager held personally liable
Illustrative; not controlling law. Chao v. Self Pride, No. 06-1203, No. 06-1369, 232 Fed. Appx. 280 (4th
Cir., 5/17/10); 2007 U.S. App. LEXIS 11583; 12 Wage & Hour Cas. 2d (BNA) 1025; /scholar_case?
case=10926644626957549268&q=Chao+v.+SelfPride&hl=en&as_sdt=10000000002&as_vis=1.
Title VII: hostile work environment, “equal opportunity harasser”, sexual harassment, gender specific
comments
Illustrative; not controlling law. For many years there was a line of thinking that there was no liability
for a hostile work environment caused by an “equal opportunity harasser”. A few years ago various
circuit courts began to rule otherwise, and this case is a good reminder of that important change.
Deborah Waechter, M.D. practiced with the Fairbrook Medical Clinic. John Kessel, M.D., owned and
ran the clinic, and fancied himself to be a “shock jock” who made outrageous remarks to both male
and female employees. Perhaps he thought that owning and operating the clinic gave him special
privileges and exemption from anti-discrimination laws. Among others in the clinic, Dr. Waechter was
the target of a number of remarks by Dr. Kessel having to do with her body, her sexual relationship
with her husband, plus Kessler declared he prided himself in being a “breast man”. One of Title VII’s
protections and prohibitions discrimination is misbehavior “because of sex”, the purpose being to
“strike at the entire spectrum of disparate treatment of men and women in employment.” Proof of a
violation by allowing a hostile work environment requires the employee to show the conduct
complained of was unwelcome, was based on her sex, was sufficiently “severe and pervasive” to alter
the conditions of her employment and created an “abusive work environment” that was attributable to
the employer. The behavior complained of must be objectively hostile to a reasonable person under
the circumstances. The clinic raised a Faragher/Ellerth defense, but the court rejected it, finding that
the clinic did not exercise “reasonable care to prevent and correct promptly any sexually harassing
behavior” because it never investigated complaints made several times by Waechter to Kessel (and
on at least one other time to another manager) or took any other corrective actions. EEOC v.
Fairbrook Medical Clinic, P.A., No. 09-1610, (4th Cir., 6/18/10); 2010 U.S. App. LEXIS 12503; 109 Fair
Empl. Prac. Cas. (BNA) 907; courts.gov/opinion.pdf/091610.P.pdf. Also see Kaytor v. Electric Boat
Corp., No. 09-1859-cv, (2nd Cir., 6/29/10); 2010 U.S. App. LEXIS 13318; based on similar facts, plus
threats of physical violence; courts.gov/decisions/isysquery/502c49d3-f873-4765-a325-
c48a5f89df06/1/doc/09-1859-cv_opn.pdf#xml=courts.gov/decisions/isysquery/502c49d3-f873-4765-
a325-c48a5f89df06/1/hilite/.
ERISA: ambiguous or vague opinion on whether courts or plan administrator determines benefits
Controlling law – sort of . . . . Having retired and deactivated my license to practice law, I can notify
you about this United States Supreme Court opinion but not conjecture on it for you, so check with
your benefits legal counsel on what it might imply. The hanging question is whether the final
determination about benefits is to be made in the court system or by the benefits plan administrator.
It’s a complex case replete with citations to cases in the history of the development of the benefits law
leading up to this opinion. As usual, I have provided you with citations to legal reporting sites and to
the URL for a PDF copy. Conkright v. Frommert, No. 08-810, ____ U.S. (Apr. 21, 2010); 130 S. Ct.
1640; 176 L. Ed. 2d 469; 2010 U.S. LEXIS 3479; 48 Employee Benefits Cas. (BNA) 2569; 22 Fla. L.
Weekly Fed. S 232; premecourt.gov/opinions/09pdf/08-810.pdf.
FMLA: DOL expands family leave for same-sex parents and others
Article from The Employment Law Post ©, 6/25/10, Read the article for all of the details and
comment, but in very brief summary:
Determining whether an employee stands in loco parentis to a child requires a consideration of

multiple factors, including:
the child’s age;
the degree to which the child is dependent on the person claiming to be standing in loco
parentis;
the amount of support provided, if any; and
the extent to which duties commonly associated with parenthood are exercised.
/hrnews/2010/06/23/dol-expands-family-leave-for-same-sex-parents/?HLA.
Unions: violating collective bargaining agreement (CBA), international union inducing violation, no
liability; courts, not arbitrator to determine existence of arbitration clause
Controlling law. From time to time there may be a dispute between a local union and its international
organization about whether to ratify a proposed labor contract and whether the local should comply
with the terms of it, and the United States Supreme Court held that the courts decide. Another issue
dealt with in this case was who determines whether an arbitration clause was in fact agreed to by the
parties, and the Court held that the courts decide. Granite Rock Company v. International
Brotherhood of Teamsters, No. 08-1214, ____ U.S. ____, (Jun, 25, 2010); 2010 U.S. LEXIS 5255;
ADA: new perspective, position held by temporary employee is not “vacant” for purposes of
reassignment as a reasonable accommodation under the ADA.
Controlling law. This is a case of “first impression”, i.e., it is a new issue not previously decided:
whether a position or positions filled by a temporary contract workers or workers are "vacant" for
purposes of reassignment as a reasonable accommodation under the ADA. Our Tenth Circuit Court of
Appeals ruled that such a position is not vacant because no employee, disabled or not, could be
assigned to it - that temporary employee holds the position pursuant to the terms of a contract and
cannot be bumped out. Read the case for a good review of this area of the state of the ADA
employment law. Also, discussing it with your employment law attorney would be a good idea to make
sure you have adequately dealt with the entire situation. Duvall v. Georgia-Pacific Consumer
Products, L.P., No. 08-7096 (10th Cir., 6/9/10); 2010 U.S. App. LEXIS 11791;
courts.gov/opinions/08/08-7096.pdf. 2010 U.S. App. LEXIS 11791
ADA; FMLA: Employee must provide enough information of a possibly qualifying condition; necessity
of adequate training for all employees, staff, supervisors, managers, executives; employee rejected
FMLA leave
Illustrative; not controlling law. The employee failed to provide sufficient information to alert his
supervisors of a condition that might possibly qualify him for FMLA leave. He was discharged for
excessive absenteeism. Read the case for details before relying on this, and discuss it with
competent, experienced employment legal counsel. Briefly, the employee complained he was
stressed and anxious, but did not mention his depression. His claim for failure to accommodate his
condition was rejected by the trial court and the appellate court. Proving an ADA discrimination claim
requires that the employee must inform the employer that an accommodation is needed, which this
employee did not do. Adequate training of the supervisor resulted in the supervisor diligently pursuing
inquiry to try to determine if the employee qualified for FMLA leave. Kobus v. The College of St.
Scholastica, Inc., No. 09-1583 (8th Cir., 6/21/10); 2010 U.S. App. LEXIS 12601;
courts.gov/opns/opFrame.html.
Privacy: employer-provided communication devices, reasonable expectation of privacy, employers

written "Computer Usage, Internet and E-Mail Policy" that specified that employees had no
expectation of privacy or confidentiality when using computers, e-mail, or the Internet, searching
personal text messages, monitoring text message overages, oral statements affecting policies,
practices and procedures
Controlling law. This is an important case announcing a unanimous decision, but the court limited its
application because eight of the justices conclude that the judiciary "risk[ed] error" by defining the
constitutional protections of privacy in electronic communications before the role of technology in our
society has become clear. The Court further noted that, "[r]apid changes in the dynamics of
communication and information transmission are evident not just in the technology itself but in what
society accepts as proper behavior. . . At present, it is uncertain how workplace norms, and the law's
treatment of them, will evolve."
The major point here is that employers need to review and update policies, practices, procedures and
training for all electronic communication devices because this area of business communications is
and will continue to rapidly evolve.
City of Ontario v. Quon et al., No. 08-1332, ____ U.S. ____ (June 17, 2010); 2010 U.S. LEXIS 4972;
premecourt.gov/opinions/09pdf/08-1332.pdf. [Note: double-check this opinion for any possible
revisions in the text after publication on 6/17/10.]
Though this case involves law in the public sector, the opinion notes it has implications in the private
sector as well. The concern of California’s Ontario Police Department (OPD) as a business
management matter of the cost of text messages, and the Court recognized that valid business
purpose. It had the following important factors in place:
A written Computer Usage, Internet and E-Mail Policy that policy strictly prohibited employees
from using "inappropriate, derogatory, obscene, suggestive, defamatory, or harassing
language in the email system." Sgt. Jeff Quon, an employee of the city police department,
signed a statement acknowledging that he had read and understood the policy;
Team members were reminded in a staff meeting that all text messages were considered
email messages subject to being monitored subject to the Computer Usage, Internet and E-
Mail Policy;
Later a memo was sent by the city expressly stating that messages sent on pagers were
considered email messages subject to the policy.
SWAT team members had a monthly character limit and a supervisor who had “fiscal
responsibility” for the department. One problem for OPD was the statement to Quon was that
if there was an overage, that amount could be paid and the messages would not be audited.
However, Officer Quon consistently exceeded the character limit, and the Chief decided that Quon
and another such officer would be audited.
The auditing procedure should be noted:
The city obtained transcripts of the messages to check to see if the content was related to
OPD business;
Off-duty-time messages were redacted;
Remaining messages were reviewed and 57 of the 456 sent while on duty were found to be
unrelated to work, and some were sexually explicit.
Based on this, Quon was investigated by Internal Affairs, and disciplined.
Quon file suit for violation of his privacy and Fourth Amendment rights as a public sector employee
under the Unites States Constitution for unlawful search and seizure.
As we know, public sector employees have Fourth Amendments rights. Previous Supreme Court
decisions set forth a two-step process to analyze whether such a search was unconstitutional:
1. A court must first consider the operational realities of the workplace to determine if an
employee had a reasonable expectation of privacy, and
2. if so, even then the employer still had a right to conduct a search for "noninvestigatory, work-
related purposes, as well as for investigations of work-related misconduct," if the search was
reasonable.
Declining to determine whether Quon had a reasonable expectation of privacy [Note: thus avoiding
the conversation about paying for the overages and avoiding being monitored], the Court moved on to
determine that the employer had a “legitimate, work-related rationale”, and thus was proper under the
part two of test outlined above. It concluded that the city had a legitimate interest in ensuring that
employees were not paying overages fees for work-related messages and that the city was not
paying for excessive personal communications by its employees.
[Note: All of this has important implications for both public and private sector employees, and
employers ought to seriously consider studying this opinion carefully and then conduct a thorough
audit with human resources staff and competent, experienced employment law counsel.]
National Labor Relations Act: quorum required
Controlling law. For about 27 months the National Relations board has been issuing opinions based
on only two members meeting (because presidential appointments have been blocked in congress).
During the period of January 1, 2008 and March 27, 2010, the Board had only two sitting members,
and it decided about 600 cases, all of which have been invalidated by this opinion. New Process
Steel, L.P. v. NLRB, No. 08-1457, ____ U.S. ____, (6/17/10); 2010 U.S. LEXIS 4973:
Title VII; Equal Pay: inability to show she performed substantially similar work
Controlling law. As with cases decided heavily on factual issues, reading the details of this case is
essential. The employer sought a person with higher levels of experience, more experience, and a
broader set of talents and skills, and it had to negotiate his salary and bonuses. The female employer
who was ultimately replaced failed to show the appellate court that the employer’s stated reasons for
its decisions were pretext to cover up discrimination. Hard facts are required of a claimant, and this
one failed to go beyond her own opinions about her qualifications to show an overwhelming disparity
of treatment. Whether this was a failure of actual proof or a failure of adequate presentation at trial is
unclear. Lewis v. D.R. Horton, Inc., Nos. 09-2032 & 09-2137 (10th Cir., 3/24/10); 2010 U.S. App
LEXIS 6094; and read the opinion at: courts.gov/opinions/09/09-2032.pdf .
[Note: Some prevention measures to consider in advance of making a major change of this nature:
Accurately and sufficiently document the business need for such a change.
Describe the new job description.
Consider posting the position inside the company as well as outside.
Interview applicants thoroughly and consistently, and document the entire process to
substantiate fairness and lack of discrimination.]
Arbitration: is the agreement “unconscionable?
Controlling law. When a litigant raise the issue of mandatory arbitration, typically the consideration
for the judge is whether enforcing the arbitration agreement would be “unconscionable”, i.e., the party
opposing arbitration challenges the fairness of the agreement. Check Rent-A-Center West, Inc. v.
Jackson, No. 09-497, ____ U.S. ____ (U.S.S.C., 6/21/10); 2010 U.S. LEXIS 4981;
Arbitration: time within which to raise the defense of an arbitration agreement
Controlling law. Federal courts favor enforcement of arbitration agreements. Here are the factors
typically used by courts in deciding if the defense of a controlling arbitration agreement has been
timely asserted in order for the trial court to dismiss the matter and refer it back for arbitration:
whether the party’s actions are inconsistent with the right to arbitrate;
whether the litigation machinery has been substantially invoked and the parties were well into
preparations for a lawsuit before the party notified the opposing party of an intent to arbitrate;
whether a party either requested arbitration enforcement close to the trial date or delayed for a
long period before seeking a stay (a halt to the proceedings);
whether a party seeking arbitration filed a counterclaim without asking for a stay;
whether important intervening steps (e.g., taking advantage of judicial fact-finding procedures
not available in arbitration) had taken place; and
whether the delay affected, misled, or prejudiced or harmed the opposing party.
Hill v. Ricoh Ams. Corp., No. 09-3182 (10th Cir., 4/19/10); 2010 U.S. App. LEXIS 7979;
Title VIII; Retaliation: employee’s failure to comply with Faragher/Ellerth reporting requirements; “cat’s
paw” doctrine inapplicable
Controlling law. The appellate court found that the employer had complied with Faragher-Ellerth
anti-discrimination training requirements and the employee had not, and thus his discrimination claim
was barred. His retaliation claim failed because the decision to terminate him was made
independently of input from others in the company, i.e., he did not establish that the person(s) who
terminated him had been influenced by others.* The employee had numerous performance
deficiencies , he attempted to circumvent the normal chain of command, and his complaints his
supervisors were unsubstantiated Shabestari v. Utah Non-Profit Housing, No. 09-4105 (10th Cir.,
5/10/10); 2010 U.S. App. LEXIS 9502; courts.gov/opinions/09/09-4105.pdf.
[*Note: Essentially, a person getting someone else to unwittingly do something for that person, e.g.,
from Wikipedia: Jean La Fontaine was a 17th century French poet who penned a fable involving a
monkey and a cat "in which a monkey convinces an unwitting cat to pull chestnuts from a hot fire. As
the cat scoops the chestnuts from the fire one by one burning his paw in the process, the monkey
eagerly gobbles them up, leaving none for the cat." Included because “cat’s paw” has become an
established name for that legal theory.]
NM 2010 Legislative Session laws to be aware of
Be aware of these laws passed in the 2010 NM session and read the PDF files for the actual wording:
HB 165, Public sector, Whistleblower Protection Act, prohibiting public employer retaliation
against public employee in certain circumstances; creating right to civil action for damages.
http://www.nmlegis.gov/Sessions/10%20Regular/final/HB0165.pdf.
SB 254, Public sector, amending Criminal Offenses Act to restrict inquiry and consideration of
a conviction until final stages of hiring practices; hiring, license, permit, certificate or other
authority to engage in any regulated trade, business or profession; not an automatic bar; no
inquiry about conviction until selected as finalist.

http://www.nmlegis.gov/Sessions/10%20Regular/final/SB0254.pdf.
Title VII: age and gender discrimination allegation; indirect discrimination proof, three-step proof,
“employer’s legitimate business expectations”, no pretext – insubordination as valid business purpose
reason
Illustrative; not controlling law. An employee fired for insubordination alleged age and gender
discrimination made it through the first step, but failed on the second step and summary judgment in
favor of the employer was upheld. The key point is that she was not meeting the employer’s
legitimate business expectations, and an important factor in success adequate, objective
documentation of the employee actions and statements on which the employer’s adverse
employment decision was based. Everroad v. Scott Truck Sys., Inc., No. 08-3311 (7th Cir., 5/10/10);
2010 U.S. App. LEXIS 9484; 109 Fair Empl. Prac. Cas. (BNA) 353; courts.gov/tmp/Y610FZ61.pdf.
ADA: job descriptions, “essential functions”, reasonable accommodation, size of the operation,
temporary accommodation.
Illustrative; not controlling law. An assistant manager who injured herself while grilling and scooping
ice cream took FMLA leave. When that leave expired her employment was terminated because she
was unable to perform certain functions of her job. The restaurant was found to be too small an
operation to reasonably accommodate Richardson’s condition after her injury.
This case might have been decided differently if the size of the business had been larger
Richardson v. Friendly Ice Cream Corporation, No. 08-2423, 594 F.3d 69 (1st Cir., 2/5/10); 2010 U.S.
App. LEXIS 2495; 22 Am. Disabilities Cas. (BNA) 1473; 14 Accom. Disabilities Dec. (CCH) P14-052;
Findlaw: /cgi-bin/getcase.pl?court=1st&navby=docket&no=082423.
Katharine Richardson’s six-page job description as assistant manager stated that position required
being primarily responsible for:
1) assisting the General Manager with administrative and operational shift duties;
2) providing guidance and direction to restaurant personnel;
3) overseeing, directing and assisting in the kitchen, dining and take-out operations;
4) facilitating production and customer service; and
5) ensuring that safety regulations and quality standards were maintained and that customer
satisfaction was achieved.
The appellate court affirmed the summary judgment in favor of the employer, reasoning that:
. . . "[f]unctions that might not be considered essential if there were a larger staff may become
essential because the staff size is small compared to the volume of work that has to be done." The
1st Circuit explained that, "[i]f an employer has a relatively small number of available employees for
the volume of work to be performed, it may be necessary that each employee perform a multitude of
different functions. Therefore, the performance of those functions by each employee becomes more
critical and the options for organizing the work become more limited."
Title VII: presently no deadline for filing claim, though ultimately the lower court will determine and
state when the date for when filing period begins; remanded to 7th Cir. for further action
Controlling law. As of this time in the legal proceedings, no “clock” or “calendar” applies to this
disparate impact case to bar the claims of African-American firefighters against the Fire Department
of the City of Chicago, the Lewis case. But, you ask, why was there a time deadline issue in the
recent Ledbetter case? The difference seems to be that the Lewis case involved indirect
discrimination and the Ledbetter case involved direct discrimination. Direct discrimination would then
be an identifiable act at the time of commission, whereas under the Lewis reasoning indirect
discrimination by disparate impact of a policy does not occur until the actual by the application of such
on those employees in a protected class. Thus the Supreme Court highlighted important differences
in when claims of disparate impact — as opposed to claims of disparate treatment — must be
brought under Title VII. Lewis v. City of Chicago, Illinois, No. 08-974, ____ U.S ____ , May 24, 2010;
2010 U.S. LEXIS 4165; premecourt.gov/opinions/09pdf/08-974.pdf.
ERISA: attorney fees
Controlling law. The U.S. Supreme Court held that a court may award attorney's fees under ERISA §
502(g)(1) to either party as long as the fee claimant "has achieved some degree of success on the
merits." This replaces the former rule that fees would be awarded to the “prevailing party”. Hardt v.
Reliance Standard Life Ins. Co., No. 09-448, ____ U.S. ____, May 24, 2010; 2010 U.S. LEXIS 4164.
[Note: What affect this ruling may have in other employment law cases, if any, remains to be seen.]
Title VII: female driver, physical ability test (PAT), inconsistent testing, relation of test to actual duties,
legitimate business reason; concern over injury, relation to ADA pre-employment testing
Illustrative; not controlling law. Employers have legitimate concerns about employees injuring
themselves, such as the safety, health and welfare of the each worker, danger to others, interruption
of delivery of goods and services to customers, and so. However, though PATs may help to reduce
workplace injuries, caution is essential, so ensure that sure the test is (1) consistently applied to all
employees, (2) related to the requirements of the specific job, and (3) designed to evaluate the actual
shortcoming(s) in question.
Merritt v. Old Dominion Freight Line, Inc., No. 09-1498, 601 F.3d 289 (4th Cir., 4/9/10);
2010 U.S. App. LEXIS 7352; 108 Fair Empl. Prac. Cas. (BNA) 1766; 93 Empl. Prac. Dec. (CCH)
P43,863; courts.gov/opinion.pdf/091498.P.pdf.
Old Dominion had two classes of drivers: (1) line haul and (2) pickup and delivery. Line haul drivers
typically drive long distances across state lines and are away from home on nights and weekends.
Pickup and delivery drivers work locally, rarely working nights and weekends. Duties of pickup and
delivery drivers require picking up and handling freight, so that job requires more lifting and is
physically more demanding than that of a line haul driver. Of the pickup and delivery class of 3,100,
only six were female.
Deborah Merritt drove line haul for six years, and over that time she developed an interest in working
as a pickup and delivery driver so she could have regular hours and spend her nights and weekends
at home. When she filled in as a pickup and delivery driver in May 2002, her supervisor evaluated her
work as fully satisfactory. A short time after starting as a temporary pickup and delivery driver, she
applied for permanent status. Twice, she was rejected and younger, less experienced male drivers
were hired instead. In response to her inquiry about the reasons, the terminal manager told her that “it
had been discussed and it was decided that [we] could not let a woman have that position.”
Sometime later, he told her that the regional vice president was worried about hiring a female pickup
and delivery driver for fear she would get hurt, and on another occasion he told her that the vice
president had concerns about making her a pickup and delivery driver because he “didn’t think a girl
should have that position.” However, in March 2004, Old Dominion allowed Merritt to work as a
permanent pickup and delivery driver, but unlike male drivers, she was placed on a 90-day
probationary period.
Merritt performed her pickup and delivery duties satisfactorily until September 29, when she injured
her ankle on the job, and then Old Dominion required her to take a physical ability test (PAT) to
assess her ability to perform her pickup and delivery duties. Old Dominion uses the PAT primarily
during the pre-employment stage to evaluate potential hires, but not as a consistent policy and
practice. Note that her personal physician stated there was nothing about her medical condition that
would prevent her from performing her job. However, when Merritt took the PAT she was evaluated as
having failed. Though she contended that the tasks she had problems with were unrelated to her
ankle injury, Old Dominion terminated her employment based on the results of the PAT, claiming she
was unable to perform her job. She was replaced by a male driver.
Her Title VII sexual discrimination claim based was on the employer’s belief that women are
incapable of performing the duties of a pickup and delivery driver. The federal district court granted
the employer’s motion for summary judgment. That judgment was reversed because the appellate
court found that she had presented sufficient evidence of discriminatory conduct to warrant a trial.
Though acknowledging that Old Dominion had offered legitimate reasons for deciding to terminate
her employment, i.e., failing the PAT, it found that reason was insufficient to defeat her claims
because (1) evidence showed that the PAT wasn’t designed to test her physical shortcomings in
doing her job and (2) Old Dominion used the PAT selectively. Further, the prejudicial and biased
statements by Old Dominion managers about not wanting women as pickup and delivery drivers
evidenced a discriminatory corporate culture.
Title VII: filing period for a New Mexico Human Resources Bureau right-to-sue letter is different from
an EEOC right-to-sue notice
Controlling law. Because this decision is of interest primarily to litigation attorneys, it is noted here
but not briefed. Rodriquez v. Wet Link, LLC, 2010 U.S. App. 8594 (10TH Cir., 2010.
Title VII, Retaliation: poor performance, not discrimination; adequate documentation showed no
pretext
Controlling law. A history of poor performance by the employee, plus adequate documentation by
the employer’s efforts to warn, counsel and document to help the employee improve his performance,
were sufficient to enable this employer to win on the summary judgment ordered by the trial court that
was affirmed by the appellate court.
Anderson v. AOL, LLC, No. 09-6036 (10th Cir., 1/27/10); 2010 U.S. App. LEXIS 1813; 108 Fair Empl.
Prac. Cas. (BNA) 953; .
This case, the one following and the article about evaluation difficulties demonstrate (1) the need for
adequately warning employees of performance deficiencies, (2) counseling them about how to
improve and offering assistance with that process, and (3) appropriately documenting them.
Todd Anderson had and long and problematic history of poor performance, most notable of which
were:
vocal and negative reactions to the employer’s employment decisions,
perceptions by coworkers about him and his lack of leadership,
his inability to serve as a leader and also to provide accurate information for his team, and
his behavior in the open call center floor on the day he was fired, e.g., that several AOL
employees were not qualified for their positions, , plus statements about the sexual orientation
of one employee and reference to another employee as a sexual offender.
The employer had a well documented record of warning and counseling Anderson in its efforts to
assist him to change his behavior and improve his performance. That was sufficient to show to the
courts a valid business purpose for terminating his employment, and his contentions of discriminatory
actions by the employer were carefully examined and rejected.
ADEA: no discrimination, adverse employment action, inability to get along with co-workers, adequate
documentation
Illustrative; not controlling law. This employee’s inability to get along with co-workers was held to be
sufficient basis for taking the adverse employment action of not rehiring him after a reduction in force
layoff. Often employers are reluctant to take an adverse employment action against an employee who
is in a class that is protected against discrimination. One example that immediately comes to mind is
an ADA situation involving an employee with an emotional or psychological problem who acts
inappropriately in the workplace, and the solution is to focus on the behavior and not the condition or
status. In this unpublished opinion of the 6th Circuit Court of Appeals case Lucent Technologies
employee Brian Viergutz, age 43, had worked with the company since 1997 as an installer. In late
2003 he was laid off as part of a RIF. He admitted that over the course of his employment with Lucent
he had numerous personal conflicts with his fellow employees. As you will recall, proof of indirect
evidence of discrimination involves a three-step process: (1) proof by the employee of being in a
protected class and qualified for the job, (2) a showing by the employer of a valid business purpose
for the adverse employment action, and (3) proof by the employee that the employers stated purpose
was a pretext to cover up discrimination. Because of his turbulent and contentious work history
Viergutz failed to prove pretext. Viergutz v. Lucent Technologies, Inc., No. 08-3626, unpublished, 6th
Cir., 4/23/10).; 2010 U.S. App. LEXIS 8491; 2010 FED App. 0250N (6th Cir.); and from More Law
Lexapedia: /verdicts/case.asp?n=08-3626&s=OH&d=43632, an excellent resource.
Evaluations: pitfalls and malpractice article
Here is an excellent article from LAW 360 on why to not have periodic evaluations:
/PressPublicati-05112010.pdf.
Annual Evaluation Systems and Malpractice, May 2010, by David M. Wirtz, Employment Law360,
May 10, 2010. In this article, David M. Wirtz, a shareholder in Littler's New York City office, advises
employers on the pitfalls of annual evaluations systems. "Employers can also train supervisors to
evaluate their employees honestly until they’re blue in the face, but, the unfortunate truth is, they will
not do it, and there are equally immutable forces of nature at work to explain why they won’t," writes
Wirtz.
[Note: Seriously consider using a “warn, counsel, and document” approach as problems arise. From
my training materials:
Corrective action means assisting the employee to modify behavior to meet company or
agency standards, and it helps to focus attention on the process of correcting deficiencies as
they occur in order to help the employee to succeed – which investigators, hearing officers,
judges and juries should be hearing and seeing.
Adverse employment action means steps affecting pay, benefits, tenure, continued
employment, and things of a very serious nature.
To maintain objectivity, bear in mind this outline for documentation:
Rules = policies and procedures that apply to the deficiency, i.e., job description and
performance standards
Facts = accurate description and definition of the problem that the employee can understand
and act upon (what, who, when, where and why)
Goals = what the employee needs to do to rectify the problem
Solutions = suggested methods for achieving the goals
Consequences = what to expect if the deficiency is not taken care of
Follow-up and feedback = advise the employee on progress
For this subject we will be referring to an excellent book: Documenting Discipline, by Mike
Deblieux, ISBN 1-884926-34-7,
Provant Media Publishing Company, 4601 121st Street, Urbandale, IA 50323-2311; (888) 776-8268
Or from Coastal Training Technologies Corp., 88 pages, Model #: LGL007-MAN-ENG-0000,

$14.95,
ERISA: garnishment, federal law, state law
Controlling law. This case will be of interest primarily to litigators, so it is not briefed beyond this
notice of its publication and posting of how to locate the full text of the decision online.
{1} Wrongfully denied her disability benefits, a former employee obtained a judgment against her
employer’s long-term disability plan based on rights accorded under the federal Employee retirement
Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001 to 1461 (2000). The employee seeks to
enforce that judgment by way of a writ of garnishment against the insurer whose insurance policy
funded the employer’s disability plan. The district court granted the writ of garnishment against the
insurance company, but the Court of Appeals reversed, concluding that the employee’s case did not
fit its understanding of the proper scope of garnishment under state law. We reverse the Court of
Appeals, uphold the writ of garnishment against the insurer, and remand to the Court of Appeals for
further proceedings.
/nmcases/NMSC/2010/10sc-014.pdf;
ftp:/BB_05-03-10.pdf.
Title VII: break policy, gender discrimination, retaliation, adverse employment action, minor workplace
slights and annoyances; summary judgment for employer
Illustrative: not controlling law. Over the years courts have noted that the anti-discrimination laws are
not intended to address civility or minor annoyances in the workplace. This case is one example of
the meaning of an “adverse employment action” and the types of actions not recoverable under Title
VII - minor workplace slights or trivialities, such as coffee breaks and temporary job changes, are not
prohibited by the law. Generally, courts have defined an “adverse employment action” as:
one that affects or alters “the conditions of the workplace” and typically involves “discrete changes in
the terms of employment,” such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing significant change in benefits.
Angel David Morales-Vallellanes (“Morales”) had started with the post office as a Distribution and
Window Clerk. Because of pain from an arm injury he usually was limited back-office distribution
duties and rarely window duties. His EEOC claim was that after complaining about the break coffee
policy - Irene was allowed longer coffee breaks than he was allowed - he was retaliated against:
Morales alleged that his supervisor monitored all employees to ensure that they clocked in
and out for breaks.
His back-office duties were temporarily reassigned to Irene and he was given window duties to
perform.
When he expressed interest in bidding for a Distribution and Window Clerk position that was
expected to include Saturdays and Sundays off, a highly desirable schedule, the USPS
reclassified and posted the position with Thursdays and Sundays off, and that USPS changed
the posting to dissuade him from bidding for the position in retaliation for complaining about
alleged gender discrimination.
The EEOC dismissed his charges, the district court ordered summary judgment to the employer, and
the appellate court affirmed that order. Morales-Vallellanes v. Potter, No. 08-2452, 08-2452 (1st Cir.,
5/11/10); 2010 U.S. App. LEXIS 9569; /1/morales.pdf.
ADA: recovering addict, methadone; essential functions of job, individualized assessment required;
“direct threat”, lack of evidence
Illustrative; not controlling law. This EEOC claim on summary judgment and will proceed to trial by
jury because the federal district trial court ruled that the employer failed to make an adequate
individualized assessment of whether the recovering drug addict on a methadone prescription could
safely perform the essential functions of a production worker in a copper mill. Further, the employer
failed to provide evidence that the employee posed a “direct threat to other workers because of his
use of methadone. This is yet another case of snap and uninformed decisions being made without
sufficient expert information. Because of the extensive details of this decision, it is essential to read
the entire case for all of the important details of this employer’s errors and omissions. EEOC v.
Hussey Copper Ltd., 22 A.D. Cases (BNA) 1821 (W.D. Pa, 3/10/10); /legalupdates/article.cfm?
aid=2062. [Note: If for some reason you are unable to retrieve this Jackson Lewis law firm article,
contact me for a PDF copy I have retained.]
ERISA: judicial review, plan administrator's interpretation generally is entitled to deference
Controlling law. Generally, this United States Supreme Court decision protects discretionary
authority of benefits plan administrators, subject to limits on an administrator's ability to re-interpret
the plan where there might be either lack of good faith or multiple unsuccessful interpretations of the
same plan. Read the full case for all of the details and confer with experienced benefits legal counsel.
This decision was based on an earlier USSC case, Firestone Tire & Rubber Co. v. Bruch, that
analogized to principles of trust law: if the trust documents gave the trustee "power to construe
disputed or doubtful terms, ... the trustee's interpretation will not be disturbed if reasonable." In
Metropolitan Life Ins. Co. v. Glenn, it had held that a deferential standard of review remains
appropriate even in the face of a conflict when the terms of a plan grant discretionary authority to the
plan administrator. Conkright v. Frommert, No. 08–810 (USSC, 4/21/10); 2010 U.S. LEXIS 3479;
Title VII: gender hostile work environment, retaliation, reprisal, adverse employment action;
constructive discharge, “voluntary
Controlling law. This is an important case for our jurisdiction that appears to make a significant
change in defining an “adverse action” when proving discrimination and constructive discharge.
Accordingly, read this case carefully for all of the details.
Barone v. United Airlines, No. 08-1348 (10th Cir., 12/7/09); 2009 U.S. App. LEXIS 26524; 107 Fair
Empl. Prac. Cas. (BNA) 1798; courts.gov/opinions/08/08-1348.pdf.
Mary Barone started her employment with United Airlines in 1995. As of October of 2005 she was
promoted to manager of business administration for the Denver station, and her duties included
conduction investigations to correct problems with pay and other systematic problem and report on
them, which she did, but apparently to the annoyance of her supervisor, Todd Sprague. Problems she
reported included gender pay disparities. When she bought these situations to Sprague’s attention he
told her to “look the other way” and to either “throw . . . away” or “delete” her reports of that. He would
also talk demeaningly to female employees. His evaluations of her performance were excellent, but
told her in person the she was “nor doing anything right.” At a meeting on August 17, 2006, he gave
her two options: (1) move to Orange County as a part-time customer service agent or (2) resign. She
chose to resign, but later requested to be reinstated, which the company rejected. Controversy in this
case involved whether her resignation was voluntary, had she been constructively discharged , had
she been subjected to a hostile work environment, and was the action by the company adverse? The
appellate court determined that Barone actually took an adverse employment action rather than
having merely threatened and that presenting the “choice” created a hostile work environment. It held
she had proved a first stage case of discrimination, which left for showing at trial by the company that
it had a legitimate business reason for its adverse employment action, and of course she would be
entitled to show that proffered reason was actually a pretext for discrimination.
[Thus, this 10th Circuit case has changed its standard of proof for constructive discharge to a less
demanding level for a plaintiff.]
Tribal Law: Navajo Preference in Employment Act (NPAA), Office of Navajo Labor Relations (ONLR)
The NPAA applies to any employer doing business within the Navajo Nation or engaging in a contract
with the Navajo Nation, and it is administered by the ONLR. Major requirements include:
Employers must create a written affirmative action plan with the goal of employing Navajos in
all job classifications, including managerial positions, and ONLR generally works with
organizations to develop and implement an acceptable plan based on the type of work
involved.
Employers must:
include a Navajo employment preference policy statement in all job announcements

and advertisements,
use Navajo Nation employment sources and job recruitment services, and
advertise with at least one Navajo Nation newspaper and radio station and post a
Navajo preference policy prepared by the ONLR on the job site.
Navajos who demonstrate the necessary qualifications for employment must be hired over
non-Navajos.
Employers must promote qualified Navajos over non-Navajos and, if the situation occurs,
retain Navajos over non-Navajos during layoffs.
An employer cannot take adverse employment actions against Navajo employees

without “just cause”, and the NPEA requires written notification outlining the reasons
for any adverse action taken. Rulings of the Supreme Court of the Navajo Nation
should be reviewed carefully with experienced legal counsel, but just cause is a broad
concept that includes a wide range of employer justifications.
Generally, written policy violations by an employee may be sufficient cause if

the employee understands the nature of the violation and the consequences for
his actions.
However, ambiguous policies, e.g., harassment or other complex situations,

may necessitate previous adequate training if violations are contended to be
reasonable notice of grounds for an employee’s termination.
Office of Navajo Labor Relations: (928) 871-6800/6294; (928) 871-7088.
ADA: work schedule; best practices, request for reasonable accommodation, failure to consider
Illustrative; not controlling law, but a good illustration of something some employers may overlook. If a
request for accommodation is made, it must be explored interactively with the employee to determine
if it is reasonable. If it is not, then it need not be made. However, the mistake in this case was that the
employer rejected the request without checking on whether it was reasonable. An employee who
developed vision impairments and was no longer able to drive in dark conditions requested an
accommodation to her work because she lived in an area without reliable public transportation or
taxis. Generally, she worked the 9 a.m. to 2 p.m. shift, and as an accommodation she requested that
she not be assigned shifts that would require driving in darkness. Her supervisor flatly and
immediately refused on the grounds that it “wouldn’t be fair” to other employees. Even after supplying
a note from her physician her request was denied. A request from her union representative for
accommodation also was rejected. Lesson: Though an employer does not have a duty to provide an
employee with transportation to or from work, an employer does have a duty, where reasonable, to
accommodate an employee by changing the times that the employee is required to be at work. Such
inquiry should examine the totality of the circumstances and resources of the employer. Colwell v.
Rite Aid Corp., No. 08-4675 (3rd Cir., 4/8/10); 2010 U.S. App. LEXIS 7249;
courts.gov/opinarch/084675p.pdf.
ADA: medication side effects may cause disability; joint employment
Illustrative; not controlling law (3rd, 7th, 8th, and 11th). A morbidly obese electronics technician
suffering from sleep apnea was taking a prescription of weight loss. A side effect of that medication
was frequent urination that necessitated frequent long restroom breaks. Potentially, there was a
question of whether he was in a status of joint employment. After being informed of plans to transfer
him to a different work group the employee brought a note from his doctor stating that his medication
was being changed and the breaks would be less frequent. Nevertheless, his supervisor decided to
move him out of his work group and to perform other duties. No other similar jobs were available, so
the employee accepted a “voluntary” layoff and found employment elsewhere. He then sued under
the ADA and the Rehabilitation Act, arguing that the two companies involved were his “joint employer”
and that he had been laid off because of a disability or perceived disability.
Sulima v. Tobyhanna Army Depot, No. 08-4684, (3rd Cir., 4/12/10); 2010 U.S. App. LEXIS 7459;
The federal district trial court granted summary judgment to both defendants on the grounds that
there was no joint employment. It further ruled that the employee had failed to raise a triable issue of
fact under the ADA against his actual employer. The appellate court affirmed those lower court rulings
because although the adverse side effects of Sulima’s medication could have caused an impairment
that rose to the level of a “disability” under the ADA, that category of disability is subject to certain
limitations.
Lesson: Employers should not confuse the issue whether a side effect is a disability with the general
issue of whether medications are “mitigating measures.” As you may recall, one of the specific
purposes of the amendments to the ADA [ADAAA, effective in January 2009], is that the question of
whether an impairment is “substantially limiting” under the ADA must be judged “without regard to the
ameliorative effects of mitigating measures,” which might include mediations. In situations in which an
individual’s medication ameliorates or erases the limitations of a physical or mental disability, an
analysis of whether that person is disabled must be made without reference to the medication’s
effects. However, that provision does not include situations, like Sulima’s, in which a plaintiff claims
disability only as a result of the side effects of medical treatment for a health condition that, standing
alone, does not constitute a disability in and of itself. Thus, in Sulima’s situation, the medication is the
issue the side effects of it may render an individual “disabled” for purposes of the Americans with
Disabilities Act, even though the underlying condition for which the medication was prescribed does
not.
Title VII: sexual harassment, proper training provided, failure to report
Illustrative; not controlling law from this federal circuit, but controlling under United States Supreme
Court precedent. This is just a reminder that if an employer has provided adequate training in the
laws and its policies and procedures to prevent harassment, and if that has been adequate, then
under the Faragher/Ellerth cases (USSC precedent) an employer can have an affirmative defense
against a claim of harassment if the alleged victim has failed to take advantage of those prevention
and reporting procedures. Employees need to be informed of or reminded of this in their harassment
training. Balding-Margolis v. Cleveland Arcade, d/b/a Hyatt Regency Cleveland, No. 09-3017, (6th
Cir., 11/9/09) 352 Fed. Appx. 35; 2009 U.S. App. LEXIS 24604; 2009 FED App. 0732N (6th Cir.);
courts.gov/opinions.pdf/09a0732n-06.pdf.
ADA: alcoholism, failure to call in as required
Illustrative; not controlling law. Treatment for alcoholism is protected by the ADA, but behavior is not
protected. This employee failed to follow the company’s written policy requiring employees to call
when they will not be reporting for work, and his violation of PSEG's "no call/no show" policy was the
reason for firing him. The ADA specifically permits employers to "hold an employee... who is an
alcoholic to the same qualification standards for employment or job performance and behavior that
such entity holds other employees, even if any unsatisfactory performance or behavior is related to
the... alcoholism of such employee." 42 U.S.C. §12114(c)(4). VandenBroek v. PSEG Power CT LLC,
No. 09-1109-cv (2nd Cir.,12/11/09); 2009 U.S. App. LEXIS 26965; 22 Am. Disabilities Cas. (BNA)
1304: /scholar_case?
case=14813311118990412938&q=VandenBroek+v.+pseg&hl=en&as_sdt=10000000002&as_vis=1;
also see Ritenour v. Tenn. Dept of Human Services, No. 3:09-0803 (U.S.D.C., Middle District,
Nashville Division);
/Ritenour%20v%20Tenn%20Dept%20of%20Human%20Services%20FMLA%2010-4-2010.pdf.
ADA: work schedule; best practices, request for reasonable accommodation, failure to consider
Illustrative; not controlling law, but a good illustration of something some employers may overlook. If a
request for accommodation is made, it must be explored interactively with the employee to determine
if it is reasonable. If it is not, then it need not be made. However, the mistake in this case was that the
employer rejected the request without checking on whether it was reasonable. An employee who
developed vision impairments and was no longer able to drive in dark conditions requested an
accommodation to her work because she lived in an area without reliable public transportation or
taxis. Generally, she worked the 9 a.m. to 2 p.m. shift, and as an accommodation she requested that
she not be assigned shifts that would require driving in darkness. Her supervisor flatly and
immediately refused on the grounds that it “wouldn’t be fair” to other employees. Even after supplying
a note from her physician her request was denied. A request from her union representative for
accommodation also was rejected. Lesson: Though an employer does not have a duty to provide an
employee with transportation to or from work, an employer does have a duty, where reasonable, to
accommodate an employee by changing the times that the employee is required to be at work. Such
inquiry should examine the totality of the circumstances and resources of the employer. Colwell v.
Rite Aid Corp., No. 08-4675 (3rd Cir., 4/8/10); 2010 U.S. App. LEXIS 7249;
ADA: medication side effects may cause disability; joint employment
Illustrative; not controlling law (3rd, 7th, 8th, and 11th). A morbidly obese electronics technician
suffering from sleep apnea was taking a prescription of weight loss. A side effect of that medication
was frequent urination that necessitated frequent long restroom breaks. Potentially, there was a
question of whether he was in a status of joint employment. After being informed of plans to transfer
him to a different work group the employee brought a note from his doctor stating that his medication
was being changed and the breaks would be less frequent. Nevertheless, his supervisor decided to
move him out of his work group and to perform other duties. No other similar jobs were available, so
the employee accepted a “voluntary” layoff and found employment elsewhere. He then sued under
the ADA and the Rehabilitation Act, arguing that the two companies involved were his “joint employer”
and that he had been laid off because of a disability or perceived disability.
Sulima v. Tobyhanna Army Depot, No. 08-4684, (3rd Cir., 4/12/10); 2010 U.S. App. LEXIS 7459;
The federal district trial court granted summary judgment to both defendants on the grounds that
there was no joint employment. It further ruled that the employee had failed to raise a triable issue of
fact under the ADA against his actual employer. The appellate court affirmed those lower court rulings
because although the adverse side effects of Sulima’s medication could have caused an impairment
that rose to the level of a “disability” under the ADA, that category of disability is subject to certain
limitations.
Lesson: Employers should not confuse the issue whether a side effect is a disability with the general
issue of whether medications are “mitigating measures.” As you may recall, one of the specific
purposes of the amendments to the ADA [ADAAA, effective in January 2009], is that the question of
whether an impairment is “substantially limiting” under the ADA must be judged “without regard to the
ameliorative effects of mitigating measures,” which might include mediations. In situations in which an
individual’s medication ameliorates or erases the limitations of a physical or mental disability, an
analysis of whether that person is disabled must be made without reference to the medication’s
effects. However, that provision does not include situations, like Sulima’s, in which a plaintiff claims
disability only as a result of the side effects of medical treatment for a health condition that, standing
alone, does not constitute a disability in and of itself. Thus, in Sulima’s situation, the medication is the
issue the side effects of it may render an individual “disabled” for purposes of the Americans with
Disabilities Act, even though the underlying condition for which the medication was prescribed does
not.
Title VII: sexual harassment, proper training provided, failure to report
Illustrative; not controlling law from this federal circuit, but controlling under United States Supreme
Court precedent. This is just a reminder that if an employer has provided adequate training in the
laws and its policies and procedures to prevent harassment, and if that has been adequate, then
under the Faragher/Ellerth cases (USSC precedent) an employer can have an affirmative defense
against a claim of harassment if the alleged victim has failed to take advantage of those prevention
and reporting procedures. Employees need to be informed of or reminded of this in their harassment
training. Balding-Margolis v. Cleveland Arcade, d/b/a Hyatt Regency Cleveland, No. 09-3017, (6th
Cir., 11/9/09) 352 Fed. Appx. 35; 2009 U.S. App. LEXIS 24604; 2009 FED App. 0732N (6th Cir.);
courts.gov/opinions.pdf/09a0732n-06.pdf.
Title VII: periodic training, identifying different kinds of harassment, ignoring possible harassment,
“ostrich syndrome”, “knew or should have known”, “constructive knowledge”, duty to act, prompt
investigation, prompt remedial action, separate possible harasser and possible victim
Illustrative; not controlling law. This recent the Second Circuit Court of Appeals decision reminds us of
the importance of providing and requiring participation in periodic harassment training of supervisors
to ensure that they know about different kinds of harassment and remember to act in response to
either suspected but unreported harassment or actual harassment complaints even in the absence of
a formal complaint or details from the complaining employee. Briefly stated, the key facts were:
Duch engaged in a single consensual sexual encounter with a male coworker named Kohn,
Following that she told him the encounter had been a mistake that she did not wish to repeat
[Note: Further advances would thus be unwelcome and constitute sexual harassment.].
Despite this information Kohn made a series of sexual advances towards Duch in the following
months, including unwanted physical contact, sexually graphic language, and physical
gestures.
On a Saturday when Duch was scheduled to work alone with Kohn she asked Jakubek, her
supervisor, to change her schedule so she that would not have to work that day. Jakubek
asked Kohn why Duch would be uncomfortable working with him. In response Kohn said,
“[M]aybe I did something or said something that I should not have.”
Jakubek was aware that Kohn had engaged in sexually related misconduct toward women in
the past and told Kohn to “cut it out, to grow up.”
Jakubek asked Duch if she had a problem working with Kohn, and she became emotional and
said, “I can’t talk about it”, to which he responded, “That’s good because I don’t want to know
what happened.”
Jakubek changed Duch’s schedule as she requested, and he did not schedule her to work
alone with Kohn on any other occasions.
However, Duch later contended that Kohn’s harassment persisted and escalated in the
following months.
Months later, management investigated her complaint after she complained to others about
Kohn’s sexual harassment.
It is important for employers to know and remember that liability for harassment [of any kind] can be
imputed to an employer where the plaintiff can demonstrate either (1) that the employer knew about
the harassment or (2) in the exercise of reasonable care should have known about the harassment
and failed to act promptly to stop it. Duch v. Jakubek, 07-cv-3503, 588 F.3d 757 (2nd Cir., 12/4/09);
P43,751; courts.gov/decisions/isysquery/59cea196-34c4-44e7-a8d5-bb199d8a627c/1/doc/07-3503-
cv_opn.pdf#xml=courts.gov/decisions/isysquery/59cea196-34c4-44e7-a8d5-bb199d8a627c/1/hilite/.
ADA: medical intern, unable to perform essential functions of job, not a qualified individual
Illustrative; not controlling law. A first year medical intern was determined as unable to perform the
essential functions of his job:
misdiagnosed patients,
mistakenly identified a patient as dead,
prescribed inappropriate medications or incorrect dosages, and
was “extremely argumentative” with his supervisors and co-workers.
The medical center provided accommodation by:
allowing him to see fewer patients with less complex medical issues,
asking residents to help him with his workload, an
excusing him from participating in certain internship program requirements.
Even with these accommodation [Note: Probably more than reasonable] he continued to have
problems. His diagnosed condition turned out to be Attention Deficit Disorder (ADD) with “significant
impairment in visual-spatial reasoning and visual memory.” Thus he was not a qualified individual with
a disability under the provisions the Americans with Disabilities Act. Shin v. Univ. of Maryland Medical
System Corporation, No. 09-1126 (4th Cir., 3/11/10); 2010 U.S. App. LEXIS 5177;
courts.gov/opinion.pdf/091126.U.pdf.
Title VII: race, discrimination, hostile work environment, severe and/or pervasive, failure to pursue
claim
Illustrative; not controlling law. At least three factors defeated this claim of discriminatory behavior
over a 14 month period:
1. the behavior was neither severe nor pervasive (it was occasional),
2. the employee failed to adequately pursue his complaint with his supervisors, and
3. he failed show it impaired his work performance [a reasonable person would no chose to
continue to work under such conditions].
Ford v. Minteq Shapes and Services, Inc., No. 09-2140, 587 F.3d 845 (7th Cir., 11/24/09); 2009 U.S.
App. LEXIS 25695; 107 Fair Empl. Prac. Cas. (BNA) 1446; courts.gov/tmp/WL1FFXG9.pdf.
FLSA amendment [to Section 7] now requires breastfeeding breaks and a place to take them
The Patient Protection and Affordable Care Act [the 2010 BIG one], among other things, provides in §
4207, an amendment to Section 7 of the FLSA, Reasonable Break Time for Nursing Mothers,
requiring that an employer shall provide:
(A) a reasonable break time for an employee to express breast milk for her nursing child for 1 year
after the child’s birth; and
(B) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers
and the public, which may be used by an employee to express breast milk.
Exceptions are:
employers are not required to pay employees who take a breastfeeding break—unless there is
a state law that requires otherwise, and
an employer with less than 50 employees is exempt from the requirements if the requirements
would “impose an undue hardship” by causing it “significant difficulty or expense” as compared
to the employer’s size, resources, and the structure of its business.
ADA: misconduct, driving while intoxicated (DWI), police chief, license suspended, essential functions
of position, misbehavior rather than condition
Illustrative; not controlling law. There is an important difference between how an employee behaves
and what might be his diagnosed disorder. For example, drinking too much can be an error in
judgment, whereas alcoholism can be a “disability” under the ADA when it substantially limits an
individual's major life activities. In this case the employee lost his driving license for DWI. Driving was
an essential function of his job, which was no longer able to do (at least for a while), and thus he was
not a qualified individual because he could not perform an essential function of the job as required by
the ADA.
Charles H. Budde was Chief of Police of the Kane County Forest Preserve. One night, when not on
duty, he drank about four or five glasses of wine and had a blood alcohol level of 0.23. On the way
home from the Moose Lodge he caused a car wreck. As a result, among other things, his driver’s
license was suspended. He was placed on administrative leave and ultimately was fired for (1)
engaging in conduct below the standard for his position and (2) being unable to perform an essential
function of his position, i.e., to drive a police car because his driving license was suspended.
Though the ADA generally considers conduct resulting from a disability to be part of the disability,
rather than a separate basis for termination, an exception exists for cases of alcoholism and illegal
drug use. Intoxication while on duty can be cause for termination, even if the employee is an
alcoholic. Employers can control behavior and safety problems in the workplace. Because driving was
an essential function of Budde’s job, he did not have a valid driving license, and thus he was not a
qualified individual under the ADA. He had claimed he was entitled to an accommodation, but there
wasn’t a reasonable one that could be made under these circumstances [Note: An alcoholic
employee who is not intoxicated at work may have the right to reasonable accommodation in the form
of time off for treatment or rehabilitation.] Budde v. Kane County Forest Preserve, No. 09-2040 (7th
Cir., 4/4/10); 2010 U.S. App. LEXIS 4532; courts.gov/tmp/WO0JUJ2D.pdf.
[Note: There are similar situations, such as those involving mental disorders, that cause behavior
problems at work. When misbehavior is the cause for an adverse employment action, rather than the
underlying condition itself, then some courts have held there is not an ADA violation. However, the
prudent action for employers is to consult with their experienced employment law attorneys to
determine the appropriate course of action, because these kinds of cases can be very complicated.]
VII: religion, loose clothing (khimar), safety concerns
Illustrative; not controlling law. Safety concerns prevailed over protections of religious apparel
because the employer’s plant safety policy prohibited wearing loose clothing that might become
entangled in moving machinery. That policy was consistently strictly enforced against all employees.
A khimar is a traditional garment worn by Muslim women that covers the hair, forehead, sides of the
head, neck, shoulders, chest, and sometimes extends down to the waist. There was no available
alternative position for this temporary worker because shifting production needs required employees
to be available to work in any position in the plant. EEOC v. Kelly Servs., Inc., No. 08-3880 (8th Cir.,
3/25/10); 2010 U.S. App. LEXIS 6173; courts.gov/opns/opFrame.html.
: is severance pay subject to tax withholding?
This is an alert, not controlling law. Check with your legal counsel for advice on this matter. A federal
district court in the district of Michigan ruled that severance payments were not wages subject to
Social Security and Medicare taxes ("FICA" taxes). This is an interesting question and this case has
generated considerable interest and activity because it appears to conflict with a decision of the 8th
Court of Appeals [which includes Michigan], and it is likely to be challenged by the Internal Revenue
Service (IRS). United States v. Quality Stores, Inc., 2010 U.S. Dist. LEXIS 15825 (W.D. Mich.,
2/23/10); see an article at /showarticle.aspx?Show=11151.
FMLA: reprisal, timing, evidence of workload, employer’s lack of documentary evidence, question for
jury
Illustrative; not controlling law. Year-end holiday sales results were very low, and the employer
decided to layoff some employees. In one instance, the timing of this adverse employment action was
questionable because the discharge of the marketing communications specialist occurred on the day
she returned from FMLA maternity leave to a stack of work. Summary judgment was denied to the
employer because:
of timing in relation to her FMLA leave,
lack of documentary evidence that the employer would save money by eliminating her
position, and
evidence showed her workload and duties had not diminished at the time of her FMLA leave.
Mastin v. Sysco Food Servs. of Detroit LLC, No. 2:2008cv13369 (U.S.D.C.E.D.MI., 3/24/10)
FLSA: exempt employee, deductions for partial days of absence
Illustrative; not controlling law. Treating exempt employees like hourly employees can result in loss of
exemption for not only that particular employee, but also for all employees in that classification. This
employer had a practice of docking the pay of exempt employees during plant shutdowns, i.e., partial-
day absences, and it lost the exemption. Also, the employer was denied protection of the “window of
correction” provided under the FLSA’s white-collar regulations because its violations were not the
result of a mistake. Scholtisek v. Eldre Corp., (U.S.D.C.WD.NY., 3/22/10). [Note: This question
frequently arises in my training classes, so apparently it is important to remind ourselves about this
important point.]
ADEA: reduction in force (RIF); termination, conflicting performance evaluations, pretext
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. 26717; 107 Fair Empl. Prac. Cas.
(BNA) 1809; courts.gov/opinions/07/07-3358.pdf. 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);
courts.gov/opinions/03/03-2167.pdf; http://ca10.washburnlaw.edu/cases/2004/05/03-2167.htm.
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.); courts.gov/opinions.pdf/09a0786n-06.pdf
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.
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:
she is a single parent taking classes towards her master's degree at the time of the decision to
restrict her work location, and
she could have endured significant hardship due to the change in working conditions.
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:
Some trial courts require proof by a medical expert.
The 5th and 9th circuits and some other courts allow lay testimony and leave the matter for a
jury to decide.
The 8th circuit has allowed lay testimony to supplement incomplete medical evidence.
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;
OWBPA: invalidated release barred challenges to its validity
Controlling law: Kruchowski v. The Weyerhaeuser Company, No. 04-7118, 423 F.3d 1139 (10th
courts.gov/opinions/04/04-7118.pdf is the law in our jurisdiction. 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:
1. It must be written in plain language so that the employee can understand the agreement;
2. It must specifically mention that the employee is giving up his or her claims under ADEA;
3. It cannot waive rights that arise after date release is signed;
4. The employee must receive consideration of value (typically money) above anything to which
employee is already entitled;
5. The employee must be advised to consult with an attorney;
6. The employee must have at least 21 days to consider agreement;
7. The employee must have 7 days to revoke their acceptance of the agreement;
8. If the termination is part of a reduction in force or voluntary program that affects two or more
employees, employee must be given at least 45 days to consider agreement and given a
“release attachment” that has a list of those selected for the program (or termination) and
those who are not.
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:
1. the employer needed to be fully aware of its statutory obligations under the broad scope of
USERRA, and
2. it took care to use an independent investigation of deficiencies in the employee’s work

performance before making its decision to take an adverse employment action.
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.:
Was military service a motivating factor (need not be the sole factor)?
Was there an adverse employment action?
Could discrimination reasonably be inferred from timing or past statements indication

discriminatory hostility?
Was the investigation of the employee’s alleged deficiencies independent and were the
deficiencies business-related?
And so on.
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; courts.gov/unpub/ops/200912107.pdf .
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:
Section 1981 prohibits discrimination based on race and color in contractual matters. Plaintiffs
are allowed a longer period within which to file than under other antidiscrimination statutes and
damages are not capped. Retaliation for bringing a claim under Section 1981 is prohibited.
Seldom used until recently when joined with other discrimination claims – probably because
damages are capped by statute and the statute of limitations is longer.
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.
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:
The employer’s policies include specific language that membership on the system’s medical
staff “does not create a contractual relationship between Wellstar or any Medical Staff and the
Medical Staff Member”, and
medical staff members * * * must meet certain minimum objective criteria, and failure to do so
can result in automatic termination of medical staff privileges, which runs counter to a typical
contractual relationship.
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
courts.gov/opinions/ops/200910917.pdf.
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, 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. /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;
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.
Originally, the 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
Controlling law: a union unlawfully induced termination of an employee for failing to pay his union
dues in the full amount on time. The union failed to provide the employee with legally sufficient notice
of his deficiency and did not provide him a reasonable opportunity to bring them current. Before a
union can invoke its security agreement with the employer it must meet all four of these requirements:
1. provide the employee with actual notice of the amount due;
2. explain how it computed the amount due;
3. give the employee a reasonable deadline for payment; and
4. explain that failure to pay will result in discharge.
Laborers’ Int’l Union of North America, Local 578 v. NLRB, Nos. 08-9564, 08-9569 (2/2/10); 2010 U.S.
App. LEXIS 2179; ; /10/laborers.pdf.
Labor-Management Relations Act (LRMA): arbitration, fraud; defense, exhaust contractual remedies;
collective bargaining agreement (CBA)
Illustrative; not controlling law. Fraud is one of the grounds for taking an arbitration award to court. In
this case the employer bypassed the arbitration process by reaching a side agreement with one of the
groups of employees in the bargaining process. The appellate court stated that “An employer who by
its conduct repudiates a promise to arbitrate a dispute consistent with the terms of the CBA has no
subsequent right to insist on arbitration.” Also, the employer’s motion for summary judgment was
denied because there was material factual issue “of whether the integrity of the process has been so
impugned as to call into question the validity of the arbitration award [and thus] remains for judicial
resolution.” Ramirez-LeBron v. Int’l Shipping Agency, No. 08-2321 (1st Cir., 1/29/10); 2010 U.S. App.
LEXIS 2056; courts.gov/.
Retaliation: supervisor, sabotage, punitive scheduling; Burlington Northern test of adverse

employment action
Illustrative; not controlling law. Summary judgment was denied to the employer in this case in which
its supervisor threatened retaliation and then carried out his threat: (1) thwarted efforts by the
targeted employees to set a security alarm, which resulted in a reprimand, and (2) intentionally
adjusted shift times, break times, work locations, and work assignments that disrupted the targeted
employees’ off-duty time, and that forced them to work shifts alone so that they were subjected to
potentially hazardous situations. A question raised by the Burlington Northern decision was what
would constitute retaliation in an adverse employment action
[http://topics.law.cornell.edu/supct/cert/05-259 ], and this case provides us with yet another example.
Hicks v. Baines, 06-3782-cv (2nd Cir., 2/2/10); 2010 U.S. App. LEXIS 2146;
courts.gov/decisions/isysquery/553bba03-5996-4d79-83e0-ee4494a6aeba/1/doc/06-3782-
cv_opn.pdf#xml=courts.gov/decisions/isysquery/553bba03-5996-4d79-83e0-ee4494a6aeba/1/hilite/ .
Litigation and electronic discovery: preservation of evidence, failure to take adequate measures to
preserve potential evidence, possible sanctions
Illustrative; not controlling law. Electronic discovery of evidence, E-Discovery, has become so
prevalent in recent years that half a dozen new major provision have been added to the Federal
Rules of Civil Procedure, and many states are adopting identical or similar provisions. Intentionally or
negligently failing to be aware of these new requirements and taking effect measures to comply with
them result in serious consequences for litigants, such as default judgment on one or more issues of
liability, unfavorable jury instructions, and the like. Checking with company or agency counsel is
essential. In the past, usually sanctions have been imposed for intentional destruction of evidence,
but in this case they were imposed for the parties’ “careless and indifferent” approach to preservation
and collection of evidence. What this is that if a party of litigation either know or should have known
that litigation might result from an incident, then the duty to adequately protect and preserve potential
evidence, favorable or unfavorable, is essential. An example of an unfavorable jury instruction might
be that the jurors may infer from the disappearance of certain evidence (e.g., document, statement,
etc.) this it would have been unfavorable to the party not producing it because it would tend to prove
liability against that party. No citation or case text was found as of February 4, 2010, but this Jackson
Lewis article provides much more detail than my brief: /legalupdates/article.cfm?aid=1959. The author
of the case is Judge Shira Scheindlin, the author of previous major E-Discovery opinions that have
resulted in critical rule changes. Pension Committee of the Univ. of Montreal Pension Plan v. Banc of
America Securities, LLC, No. 05 Civ. 9016 (S.D.N.Y. Jan. 15, 2010). Previous related opinions by her
are: Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) (“Zubulake IV”); Zubulake v. UBS
Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004) (“Zubulake V”).) Some basic points to remember are:
Duties to preserve arise when a party ought to reasonably anticipate litigation (“knew or
should have known”) – start before litigation begins because by then it may be too late.
There is a duty for an employer to issue an adequate “hold order”, i.e.,
properly save,
do not destroy, and
flag such material to be removed from periodic destruction, overwriting, etc.
Collect any such evidence and retain in a safe place.
This extends to all sorts of devices, company or personal, such as computers, PDAs, cell
phones, voice mail, and so on.
Do not delegate to an employee who:
has had no experience conducting such searches;
hasn’t been trained or instructed on how to do so;
has no supervision during such collection duties; and
has no contact with and supervision by counsel during the search.
Do not delegate to potentially involved employees the duty to conduct their own searches for
relevant information with little or no proper supervision.
Don’t overlook the possibility of relevant information outside the company or agencies, such
as contractors.
Employers need to develop adequate policies and procedures and train their employees in them.
Public Sector, Privacy: pending case on cell phones, texting, pagers, etc., device issued by employer
to employee; employer’s policy of limiting use strictly to company or agency activities; Fourth
Amendment, warrantless search
Why are you being notified? Occasionally it is important to advise you of when the law might change.
Earlier, I had briefed this case as illustrative law, but not controlling: Quon v. Arch Wireless, No. 07-
55282, 554 F.3d 769 (9th Cir. 2009); 2009 U.S. App. LEXIS 2259;
courts.gov/datastore/opinions/2009/02/06/0755282o.pdf. However, that status my change because
the United States Supreme Court has agreed in a writ of certiorari* to review that case this spring,
and the decision from the USSC could become controlling law. [* One meaning of certiorari is that a
higher court limits what cases may be appealed to it. This allows it to limit its opinions to important
points of law that need to be decided and published to inform and provide guidance to the public,
businesses, agencies, etc.]
operational realities of the workplace." O’Connor v. Ortega, 480 U.S. 709, 717 (1987). Under this
case, if employees have a reasonable expectation of privacy, a warrantless search by a government
employer may be permissible, if reasonable under the circumstances if it is conducted for purposes
related to work either for non-investigatory work-related purposes or for investigations of work-related
misconduct - is permissible. Id. at 725-26.
Specifically: The Quon case dealt with these issues:
Whether a SWAT team member has a reasonable expectation of privacy in text messages
transmitted on his SWAT pager if the police department has an official no-privacy policy but a
lieutenant without authority to make policy announced an informal policy of allowing some
personal use of the pagers.
Whether the Ninth Circuit contravened Fourth Amendment precedents and created a conflict
of authority in the circuit court by analyzing whether the police department could have used
"less intrusive methods" of reviewing text messages transmitted by a SWAT team member on
his SWAT pager.
Whether individuals who send text messages to a SWAT team member’s SWAT pager have a
reasonable expectation that their messages will be free from review by the government
employer of the recipient.
Generally: Some of the issues involved in the certiorari might be:
Does an employee have a reasonable expectation of privacy in text messages transmitted on

devices issued by its employer?
If so, how might that change if the employer has a formal policy prohibiting personal use of the
devices?
Would those same privacy rules apply to third parties, i.e., someone who is not an employee
who might call, page, text or otherwise contact the employee on a device issued by the
employer?
What practices of the employer might as a practical matter defeat that written policy? [As you
will recall, if an employer is not adhering to or is not enforcing its written policies, then typically
a court will rule that the employer’s actual practice has become the policy and the written
policy is rendered meaningless.]
When might a warrant be necessary?
How far would an employer be allowed to review such communications once it becomes
apparent or should be apparent that the communication is personal, i.e., what could be the
extent of the intrusion?
Action: When the USSC issues its decision it will be briefed in this database.
Title VII: gender stereotyping, appearance, behavior, motivating factor in adverse employment action
Illustrative; not controlling federal law, but under the NM Human Rights Act it could apply [NMSA §§
28-1-2(P) and (Q)]. A female desk clerk was fired after a company official met her in person and
decided the employee lacked the pretty and “Midwestern girl” look desirable in a front desk employee.
The clerk wore button-down shirts, slacks and on some occasions had been mistaken for a man. The
8th Circuit Court of Appeals has now joined the 9th, 7th, 6th and 3rd circuits that have ruled on claims
that an employer discriminated against (or tolerated harassment of) employees whose dress and/or
behavior did not conform to a gender stereotype what might be considered masculine or feminine.
Lewis v. Heartland Inns of America, L.L.C., No. 08-3860 (8th Cir., 1/21/10); 2010 U.S. App. LEXIS
1283; courts.gov/opns/opFrame.html.
Title VII: gender, no overt direct target, hostile work environment, severe, pervasive, degrading nature
Illustrative; not controlling law. Summary judgment in favor of the employer was reversed by the
appellate court because it found there was a factual issue of hostile work environment “based on
sex”:
daily exposure to office talk and radio programming that was particularly offensive to women,
she worked as a sales representative in a workstation pod cubicle near other sales
representatives who were all men,
only female working in her area,
male coworkers and her direct supervisor used sexually derogatory and sexually explicit,
crude language and listened to a morning radio program featuring sexually explicit and
offensive language played on the stereo in the office, and
she testified that the offensive office talk and radio programming continued even after
numerous complaints to her coworkers and her supervisor.
Reeves v. C.H. Robinson Worldwide, Inc., No. 07-10270 (11th Cir., 1/2010); 2010 U.S. App. LEXIS
1157; courts.gov/opinions/ops/200710270.pdf. [Question: Occasionally in my training sessions an
issue arises about a possibly hostile or discriminatory workplace involving loud broadcasts of strong
religious content. Might this case and others like it also raise a factual issue?]
ADA: prohibited medical inquiry before conditional offer of employment
Illustrative; not controlling law. This illustrates at least two basic ADA (though many errors were made
by the employer): (1) A job applicant need not be "disabled" under the Americans with Disabilities Act
to sue an employer for making a prohibited, pre-offer medical inquiry, and (2) don’t perform any
medical exams before making a conditional offer of employment.
As a review, here is a portion of the EEOC Enforcement Guidance: Disability-Related Inquiries and
Medical Examinations of Employees under The Americans With Disabilities Act (ADA); 915.002;
Date: 7/27/00
Under the ADA, an employer's ability to make disability-related inquiries or require medical
examinations is analyzed in three stages: pre-offer, post-offer, and employment. At the first stage
(prior to an offer of employment), the ADA prohibits all disability-related inquiries and medical
examinations, even if they are related to the job.(fn 6) At the second stage (after an applicant is
given a conditional job offer, but before s/he starts work), an employer may make disability-
related inquiries and conduct medical examinations, regardless of whether they are related
to the job, as long as it does so for all entering employees in the same job category.(fn 7) At
the third stage (after employment begins), an employer may make disability-related inquiries and
require medical examinations only if they are job-related and consistent with business necessity. (fn
8)
A temporary employee applied for a permanent position. Company policy required drug testing [which
the company performed before making a conditional offer of employment]. The employer did not know
the applicant suffered from epilepsy and was taking prescribed medications for that condition. He
tested positive for barbiturates and was summoned to his supervisor’s office to discuss the situation,
and he informed the supervisor of that. The supervisor instructed him to speak to the company’s
Medical Review Officer (MRO) by telephone, and the MRO questioned him about his medication, how
long he had been taking it, and how long he had been disabled. During this conversation the
supervisor remained in the room and heard the applicant reply to the MRO that he has been
diagnosed with epilepsy when he was two years old and took barbiturates to control the seizures. The
MRO cleared the applicant and human resources had received authorization to hire him. Problems for
the company arose when the supervisor instructed human resources not to prepare an offer letter for
the applicant. Further, the temporary agency terminated him based on alleged problems with
performance and attitude problems and an allegation he had his supervisor. Though the company
prevailed in the trial court, the appellate court held otherwise, stating that a job applicant need not be
"disabled" under the Americans with Disabilities Act in order to sue an employer for making a
prohibited, pre-offer medical inquiry. Harrison v. Benchmark Elecs. Huntsville Inc., No. 08-16656 (11th
Cir, 1/11 /10); 2010 U.S. App. LEXIS 632; courts.gov/opinions/ops/200816656.pdf.
FLSA: wage claim, state or federal, employee handbook, breach of contract, disclaimer as implied
contract; statute of limitations
Controlling law, but to ultimately dependent on Oklahoma law as to statute of limitations. This case
demonstrates that employee handbooks must contain clear and conspicuous disclaimers that they
must not be construed as implying contractual rights. Each employee should execute an
acknowledgment on a separate document that he or she has received the handbook, read and
understood, is responsible for seeking assistance from the employer if anything is unclear or the
employee has any questions, and agrees that the handbook is not intended to be a contract.”At-will”
language also should be included (i.e., that either the employer or the employee can terminate the
employment relationship with or without notice or cause).
Compton v. Rent-A-Center, Inc., No. 08-6264 (10th Cir., 10/20/09); 2009 U.S. App. LEXIS 22942;
courts.gov/opinions/08/08-6264.pdf; /verdicts/case.asp?n=08-6264&s=OK&d=41850.
The employee lost his case because:
he failed to file his claim within the required time for either a federal or state claim for overtime,
and
he had no evidence to support a claim that would be allowed under a longer period of time for
filing allowed under any other applicable statute of limitations.
FMLA, constructive discharge: adverse employment action, lateral transfer; isolated remarks,
insufficient evidence
Controlling law: A custodian with numerous health problems was neither discriminated against nor
constructively discharged.
Lara v. Unified School Dist. #501, Shawnee County, State of Kansas, No. 08-3320 (10th Cir.,
10/22/09); 2009 U.S. App. LEXIS 23292,*;22 Am. Disabilities Cas. (BNA) 938;
courts.gov/opinions/08/08-3320.pdf; /verdicts/case.asp?n=08-3320&s=KS&d=41853.
Felix Lara, custodian/building operator, worked for USD from 1982 until when he retired in 2005 at
age 60. Starting in 2002, he suffered a number of health problems, including: ruptured aneurysm,
heart attack, and abdominal hernia. Cumulatively, he took six months of FMLA unpaid leave, plus
workers’ compensation leave. He contended that during the last years of his employment with USD
his supervisors comment on his health and age:
The USD principal said to him he was having a run of bad luck with his health and hoped that
wouldn’t continue.
The USD HR director told him:
he was “too old” and “getting on in age”, and suggested he ought to retire because he was
“missing too much work, having too many medical problems, and costing the school district
money, and
he would transfer him to a district service center if he didn’t take early retirement.
After that the principal told him he ought to retire, but Lara said he wasn’t interested in doing
that. Lara testified in his deposition that the principal shook his head, but did not lose his
temper; at trial Lara testified that the principal had lost his temper.
Required proof: According to the Tenth Circuit Court of Appeals, is was essential that Lara establish a
prima facie case, in this instance, that he would be entitled to judgment in his favor if the employer
could not prove a legitimate nondiscriminatory reason for an adverse employment action against him.
The court rejected his claims for these reasons:
He failed to preset sufficient evidence of constructive discharge:
supervisors made only “isolated remarks . . . none of which were threatening or harassing”,
and
those were not enough in and of themselves to prove that a reasonable person would find
them so intolerable and to leave the employee no other choice that to quit or retire.
Concerning the prospect of transfer if he did not retire, the appellate court found that “Without
significant adverse changes in working conditions . . . the lateral transfer is not an adverse
employment action”.
NLRB: union activity, overly-broad restrictions, bulletin board policy, distributing flyers, alleged neutral
policy, motivation, lack of legitimate business justification, suspicious timing; shift leaders were not
statutory supervisors
Illustrative; not controlling law. Generally, an employer may have a policy and a practice of prohibiting
solicitation of any kind in work areas during work time. However, during a union organizing campaign,
broader limitations or an inconsistent practice may result in an unfair labor practice claim and ruling.
During a an ongoing unionization campaign, this employer prohibited employees from placing union
flyers on cars in the company parking lot and warned employees against passing out union buttons or
leaving them around the time clock. The appellate court upheld the NLRB ruling of an unfair labor
practice because the timing of the employer’s actions, its apparent motivation, and the timing of
implementing a new policy indicated union discrimination in violation of the National Labor Relations
Act (NLRA). The Employer also raised the defense that shift leaders prohibited from engaging in
organizing activities were supervisors, and thus barred by the NLRA from participating in union
activities. This argument was rejected by the appellate court because the NLRA statutory definition of
supervisor states that such an employee must use independent judgment in carrying out one of 12
supervisory functions. It is important that the exercise of such authority is not merely routine, but
involves the use of independent judgment. In this case the shift managers made work assignments
that were routine and based upon a priority sheet they received from a team manager, and the other
assignments the shift leaders gave did not take into account the relative skills of their crew members
and were essentially routine in nature. Loparex LLC v. NLRB, Nos. 09-2187, 09-2289 (7th Cir.,
12/31/09); 2009 U.S. App. LEXIS 28754; courts.gov/tmp/UJ0LBR3A.pdf.
Employment, general: disciplinary action, progressive discipline, employer’s handbook, policies and
practices, contradictory explanations, subjective belief, employee’s reasonable expectations;
employment contract, implied contract, termination of employment, employer-employee relationship,

employment at will; summary judgment, remand for trial
Controlling law. As you can see from the long collection of key words and phrases above, this
important case involves many concepts of employment law and very specific and detailed facts. All of
that means that “briefing” would run the risk of possibly omitting important factors, so the case ought
to be read in its entirety. It demonstrates the importance of warning and counseling employees
promptly when their performance is deficient, plus the importance of adequately documenting that
entire process before taking an adverse employment action against the employee. Further, employers
must be fully aware of all of their relevant written policies and their possible implications, as well as
their actual practices that may vary those policies.
West v. Washington Tru Solutions, L.L.C., No. 28,443, 2010-NMCA-001 (7/30/09); Certiorari Denied,
No. 31,903, November 23, 2009; /nmcases/NMCA/2010/10ca-001.pdf.
Chris West was a management-level employee for many years, and the New Mexico Court of
Appeals summed up the case as follows:
{2} . . . In June 2001, Employer decided to merge Employee’s department with another department
and replace Employee as manager of communications. Employee was reassigned to a position in
another department. Although Employee received the same pay in his new position, he no longer had
any employees to manage, and he perceived the move to have been a demotion. On August 23,
2002, Employer informed Employee that Employee would receive a salary for two more months while
he looked for another job. Employer asserted that it took this action because there was not enough
work for Employee in his new position.
{3} Employee sued Employer, bringing claims for breach of an implied contract of employment and for
violation of the implied covenant of good faith and fair dealing, among other claims. Employee
believed that he was not terminated because of inadequate job performance or as a cost-cutting
measure, but instead because of interpersonal difficulties he had with a superior at work and a
contractor who was a friend of the superior. The district court granted summary judgment in favor of
Employer.
After these two introductory paragraphs come lengthy paragraphs 4 through 28, which discuss
numerous important concepts of New Mexico employment law and outline them for the trial court. The
New Mexico Supreme Court reviewed Court of Appeals opinion and decision [the certiorari process]
and did not modify the ruling of the Court of Appeals. Accordingly, the case was returned to the Court
of Appeals, which then remanded it to the trial court to allow the parties to fully present their theories
and evidence to a jury to hear and weigh the evidence and testimony and decide on the credibility of
the parties' contentions.
[Note: No telling who may win, but it would have been less expensive for the employer to have
proceeded more adequately in the first place.]
ADEA: exception for law enforcement officers and firefighters
Controlling law. 29 USC §623(j)(1)(A) provides that a local government can lawfully refuse to hire a
person for a law enforcement position on the basis of age, if:
the individual is over the maximum age of hire and
the refusal to hire was based on a bona fide hiring or retirement plan that was not an attempt
to evade the purposes of the ADEA.
[Note: The NM Human Rights Act has a similar provision for a “bona fide occupational qualification”.]
The totality of circumstances was important in this case, especially the timing, so read the entire case
for the details. Kannady v. City of Kiowa, No. 07-7002 (10th Cir., 1/6/10); 2010 U.S. App. LEXIS 229;
OSHA, Sarbanes-Oxley, SOX: Illustrative: not controlling law. A whistleblower who lost in an
administrative hearing is entitled to a de novo review [i.e., court reviews the case anew] in federal
court. Stone v. Instrumentation Laboratory Co., No. 08-2196 (4th Cir., 12/31/09); 2009 U.S. App.
LEXIS 28765; courts.gov/opinion.pdf/081970.P.pdf.
ADA: concern of potential violence, bipolar disorder, legitimate business reason, not discrimination;
evidence, McDonnell Douglas test, pretext
Illustrative; not controlling law. This case is a reminder that under appropriate circumstances an
employee may be terminated for dangerous behavior [not for the disability itself] reasonably
anticipated as potentially dangerous. The important factors here included:
- the high security workplace and
- the written company policies related to company computers; plus
- the company was unaware of the employee’s impairment until after its initial adverse employment
action.
Caution: Best practices dictate that employers should approach matters related to medical and
psychological impairments on a case-by-case basis with expert medical and related experts to assure
compliance with both state and federal laws.
Calandriello v. Tennessee Processing Ctr., No. 3:08-1099, (M.D. Tenn., 12//15/09); [Note: Previous
federal appellate decisions cited in this case: /uploads/file/Calandriello%20-%20MD%20Tenn%20-
%20121509%20-%20psych.pdf.].
A purpose of the ADA is to prohibit discrimination against applicants or employees based on

perceptions of a person’s disability, i.e., to overcome biases, prejudices and stereotypes. However, an
employer may take adverse employment action against an employee based a legitimate business
reason if it is not a pretext for discriminatory action. Allmond v. Akal Sec., Inc., 588 F.3d 1312, 1317
n.7 (11th Cir. 2009)(citation omitted):
“neither the ADA nor the Rehabilitation Act requires employers to forgo a qualification standard ‘until a
perceived threat becomes real or questionable behavior results in injuries’”). As one court explained:
. . . But if an employer fires an employee because of the employee's unacceptable behavior, the fact
that that behavior was precipitated by a mental illness does not present an issue under the Americans
with Disabilities Act. . . . The Act does not require an employer to retain a potentially violent employee.
Such a requirement would place the employer on a razor's edge-in jeopardy of violating the Act if it
fired such an employee, yet in jeopardy of being deemed negligent if it retained him and he hurt
someone.
Palmer v. Circuit Court of Cook County, Ill., 117 F.3d 351, 352 (7th Cir. 1997) (internal citations
omitted).
The plaintiff, Robert Calandriello, admitted he suffered from bipolar disorder. His employer,
Tennessee Processing Ctr., processed business data on which U.S. government stock and wire
transfers were based. As such TPC operated under certain security protections including FBI record
checks for employees, a gated facility, and retinal scans for employee access.
Calandriello came to TPS’s attention after he altered a company poster by adding an image of
Charles Manson. He admitted during the disciplinary process that this was a poor choice in displaying
the poster and for the firsts time in his employment he informed the company that he suffered from
bipolar disorder, which he alleged caused this problem. Further investigation revealed he had viewed
online images of violence, assault weapons, and serial killers on his company computer. TPC was
concerned that his continuing as an employee involved a realistic risk of violence in the workplace.
Calandriello argued that he had not destroyed company property, threatened anyone in the
workplace, or caused financial loss to the company, and thus he should be exempt from disciplinary
action because he was entitled to “accommodation” under the ADA. He also argued that weapons
were a regular part of conversation in the TPC workplace.
He was terminated because TPC had lost confidence in him and that he posed a potential risk of
harm, and he was fired for those reasons.
He sued for disability discrimination under the state’s anti-discrimination statute. TPC moved for
summary judgment, which the district court on the premise that the company had a legitimate
business reason for discharging him, and that he was not fired for discriminatory reason. This is what
is known as the McDonnell Douglas test:
In this instance, the trial court found in favor of TPC, holding that “fear of potential violence is a
legitimate non-discriminatory reason for an adverse employment action,” including termination, and
quoted a federal appellate court opinion that the ADA “does not require an employer to retain a
potentially violent employee.” Further, it found that Calandriello had not provided evidence that TPC’s
for the termination was simply a pretext for discrimination. It substantiated its reason by citing a
written company policy specifically prohibiting employees from visiting internet sites that are “known
to contain or are suspected of containing objectionable matter” including “profane or otherwise
inflammatory material.”
Illustrative; not controlling law. Choosing language carefully is a good idea. Standing alone, the "more
energetic person", comment may not be enough to support an age discrimination case. Avoiding what
may be considered a euphemism for age is prudent practice. This case is a close call, but defending
against such a claim can be expensive. The context of the evidence for a jury to consider was:
- company plan was to cut costs, increase profits, and resell the company in four or five years;
- 17-year work history;
- VP of technology;
- member of "steering team" that was an executive committee managers consisting of the senior
leadership of the company;
- allegations by employer:
- failure of technical leader to develop a plan to set measurable goals for his department,
- refusal to support salary freeze endorsed by steering committee, and
- harassing the human resources staff concerning a change in the company's health plan;
- allegations by the employee:
- replaced by a younger man, a the company manager of operations,
- Michael Tubridy, president of KPA's North and South American Operations, during his during his
termination meeting that he "did not fit the `profile' or `model' of what is needed in a technical leader
in terms of KPA's presentation to potential buyers of the company."
- Tubridy also stated that KPA needed a "more energetic person" as leader of the technical
department.
- Trubidy attended October 2005 meeting during which a management consultant suggested that KPA
enlist young, energetic "future people." Tubridy noted the phrase "young, energ[etic]" on a paper
napkin.
- Inman had received bonuses every year and Tubridy even singled him out for praise at a company
meeting just a few weeks before firing him.
Inman v. Klockner Pentaplast of America, Inc., No. 08-1882, (4th Cir., 10/22/09); 2009 U.S. App.
LEXIS 23291,*;107 Fair Empl. Prac. Cas. (BNA) 1032; courts.gov/opinion.pdf/081882.U.pdf.
ADA: attendance, excessive absences, consistent application of policy, disparate treatment, essential
function of position; McDonnell Douglas test, valid business purpose, no pretext
Illustrative; not controlling law. Consistent application of agency or company policies can demonstrate
the attendance is an essential function of the position and that adverse employment actions for
violation of that policy is legitimate and not discriminatory. Documentary evidence of such policy and
its consistent application and enforcement demonstrated the valid business purpose of the policy.
Rios v. Dept. of Education, 2d Cir., No. 08-1262-cv, (2nd Cir., unpublished, 11/2/09) no additional
citation available as of 12/29/09.
Title VII: hostile work environment, Ellerth/Faragher defense; employer's costs and fees denied
Controlling law. The employer was found to have complied with the Ellerth/Faragher requirements
and that the employee had not. The employer's request for cost and fees of litigation were denied
because those are awarded only when a claim is clearly unfounded.
Schmidt v. Medicalodges, Inc., Nos. 07-3347 & 07-3354, (10th Cir., 10/20/09); 2009 U.S.App. LEXIS
22935; 107 Fair Empl. Prac. Cas. (BNA) 1258; courts.gov/opinions/07/07-3347.pdf.
Laura Schmidt, nurse, cared for elderly patients. Her immediate supervisor, Shawn Garbin was
suspended and ultimately terminated after reports of sexually harassing another employee, Angela
Mitchell. Shortly thereafter, Schmidt quit. Though she at no time during her employment complained
of sexual harassment, after leaving she filed a claim alleging a hostile work environment based on the
grounds that Medicalodges ought to be held liable for Garbin's behavior for failing to take sufficient
action to either prevent or remedy Garbin's actions.
To review, in order for an employer to be liable for sexual harassment by a supervisor, such as a
hostile work environment, there must be proof that the employer allowed the workplace to be
permeated with severe and/or pervasive discriminatory intimidation, ridicule or insult based on sex.
The Ellerth/Faragher cases provide for an employer's defense:
1) that it exercised reasonable care to prevent and promptly correct sexually harassing behavior, and
also
2) that the complaining employee failed to take advantage of any preventive or corrective measures
or opportunities provided by the employer.
Essentially, that means that the employer did what it could to provide a workplace for its employees
safe from harassment and an employee must report and take advantage of those measures providing
for a workplace free of harassment. In short, a claimant must alert the employer of a problem and
cannot sit on her rights.
First, the appellate court found that the employer had exercised reasonable care to prevent and
promptly correct any such behavior, despite that fact that there was sharply conflicting evidence. It is
very important to recognize what appellate court pointed out: the role and duty of the jury is to assess
the credibility of the witnesses and determine the weight to be given to their testimony and that is not
the role and duty of the court unless the jury's verdict was "overwhelmingly against the weight of the
evidence." [Note: This is the fundamental, historical role and duty of jurors.]
Second, there was the issue of whether Schmidt took advantage of Medicalodges' preventive
measures. Her contention of why she had not filed a timely internal complaint was that she feared
retaliation, and that reporting would have been futile. Medicalodges countered by showing its anti-
retaliation policies. The appellate court noted that Schmidt had previously reported Garbin for
excessive profanity and apparently had not feared retaliation. Based on this, the jury found that
though she was subjected to a hostile work environment, but they further found her employer was not
liable because she had not followed company policy and procedure to report it. The jury found
Medicalodges' anti-harassment policies were sufficient for training, prevention and correction and that
her employer was not liable.
Medicalodges' request for costs and attorney fees were denied, however, because of the nature and
extent of conflicting evidence and testimony. United States Supreme Court precedent holds that an
employer may only collect costs and fees if the claim is "frivolous, unreasonable, or groundless."
ERISA: contractual time limitation barred claim
Controlling law. This is a complex case that should be read carefully. Briefly, though:
- ERISA doesn't have a provision for limitation of actions' it generally analogous state provisions.
- At issue was the nature and extent of the employee's disability, i.e., unable to perform any work for
two years and then whether able to performs some work after that.
- Interpretation of a contract in such a case would be that of a reasonable person, not the specific
person involved [Note: That is generally applicable throughout the law]. Salisbury v. Hartford Life and
Accident Insurance Company, No. 08-3316, 583 F.3d 1245 (10th Cir., 9/30/09); 2009 U.S. App. LEXIS
21455; 47 Employee Benefits Cas. (BNA) 2580; courts.gov/opinions/08/08-3316.pdf.
First Amendment: county employees, freedom of speech, political activity, timing
Title VII and ADEA: termination for valid business reason, McDonnell Douglas test
Controlling law. Termination for a valid business purpose was the reason, not discrimination. This is
a case with specific factual details that needs to be read carefully, but the main factors are outlined
below.
Trujillo v. Huerfano County Board of County Comm'rs, No. 08-1486 (10th Cir., 10/19/09); 2009 U.S.
App. LEXIS 22790; courts.gov/opinions/08/08-1486.pdf.
William Trujillo and Ronald Cruz were foremen for the county, and the Road and Bridge Department
was divided into three districts, each with its own foreman. Trujillo and Cruz were in two of the
districts, and William Brunelli, classified as white male, was foreman in the third. Trujillo ran as a
Democrat for county commissioner in the fall of 2004. He lost, but he and Cruz had supported
another candidate running against Roget Cain, a Republican. This is important for a decision that was
made about consolidating the three districts, which would affect the jobs of the three foremen. Brunelli
Trujillo fired for safety incidents. Cruz remained employed with the county department but
accumulated several unfavorable reports in his personnel file. Trujillo and Cruz claimed discrimination
based on allegations freedom of speech denial and age and Title VII and age discrimination. These
were rejected because the court found valid business reasons for the adverse employment actions
taken against them.
First Amendment: This, among other things, "protects public employees from discrimination based
upon their political beliefs, affiliation, or non-affiliation unless their work requires political allegiance."
The only evidence of discrimination Trujillo produced on this issue was that only three months had
passed since the political campaign and the reorganization of the department, and the appellate court
noted that "temporal proximity" is not enough in and of itself to establish political affiliation as the
motivating factor for an adverse employment action. Further, a majority of the county board was
affiliated with the Democrat party, the same as Trujillo. No evidence supported the contention that
Cain, Republican, had any sway over the other board members.
Title VII and ADEA, termination for valid business reasons:
The McDonnell Douglas test, as you will recall is:
Though Trujillo and Cruz made a prima facie showing of discrimination, they failed on the second
element and did not need to proceed on the third elements. The employer had a legitimate, justifiable,
valid business reason for consolidating the three department districts: efficiency. As stated by the
appellate court, the question before it wasn't whether the employer's proffered reasons were wise,
fair, or correct, but whether the employer honestly believed those reasons and acted in good faith on
those beliefs, and it found no evidence that the board didn't honestly believe reorganization of the
department would improve efficiency. Additionally, Brunelli was better qualified than the other two.
Team work is also important, and the other two often disagreed with him.
Disparate treatment: Trujillo's contention of disparate treatment was rejected because he was fired for
safety violations and he failed to prove that the other employees were "similarly situated, non-
protected employees," which requires proof that they (1) dealt with the same supervisor, (2) were
subject to the same performance and discipline standards, and (3) were in a different "class", such as
a different race, age, or gender, etc.
FLSA: professional exemption, academic requirements

Illustrative; not controlling law. The Second Circuit Court of Appeals generally makes well-reasoned
decisions, so this one may have considerable persuasive authority. In this case the employee was
incorrectly classified as an exempt professional: Product Design Specialist II (PDS II). Applicants for
that position were required to have 12 years of relevant experience, but no particular kind or amount
of education, and no PDS II working for the employer had a college degree. Academic qualifications
are an important requirement in order to be classified as exempt:
- The employee's primary duty must be the performance of work requiring advanced knowledge,
defined as work which is predominantly intellectual in character and which includes work requiring the
consistent exercise of discretion and judgment;
- The advanced knowledge must be in a field of science or learning; and
- The advanced knowledge must be customarily acquired by a prolong course of specialized

intellectual instruction.
The employee was laid off in a reduction in force (RIF). He sued for having been improperly and
willfully misclassified as an exempt professional, and thus was not fully paid for overtime hours
worked. He won on summary judgment and the Second Circuit Court of Appeals affirmed it. It also
affirmed the award of three years of back pay rather than the usual two years because the violation
was willful. Young v. Cooper Cameron Corp., No. 08-5847, 586 F.3d 201 (2d Cir., 11/1209);
courts.gov/decisions/isysquery/a5d3a480-ac93-4683-9e24-7d882c6431f5/1/doc/08-5847-
cv_opn.pdf#xml=courts.gov/decisions/isysquery/a5d3a480-ac93-4683-9e24-7d882c6431f5/1/hilite/.
Discovery: attorney client privilege, denial, immediate appeal under the collateral order doctrine
Controlling law: The United States Supreme Court resolved the conflict among various circuits with
its ruling that denying a claim of attorney-client during discovery is not an issue for interim appeal.
The dispute involved a discovery order compelling an employer to disclose information related to a
shift supervisor's interview with its outside counsel during an internal investigation into a separate
RICO class action, as well as information related to the company's later decision to fire the employee.
Writing for the majority, Justice Sotomayor stated: "Post judgment appeals, together with other review
mechanisms, suffice to protect the rights of litigants and preserve the vitality of the attorney-client
privilege." And "[p]ermitting parties to undertake successive, piecemeal appeals of all adverse
attorney-client rulings would unduly delay the resolution of district court litigation and needlessly
burden the Courts of Appeals." Mohawk Industries, Inc. v. Carpenter, No. 08-678, ____ U.S. ____,
(12/8/09); 2009 U.S. LEXIS 8942; premecourtus.gov/opinions/09pdf/08-678.pdf.
Title VII: religion, newspaper editorial writers, "traditional Christians", workplace expressions,
opposition to homosexual conduct, performance deficiencies; evidence, not similarly situated.
Illustrative, not controlling law. Performance problems rather than religious beliefs were the actual
reason for the employer's adverse employment actions. Two editors claimed they were victims of
religious discrimination because the top editors of the newspaper took adverse employment actions
against them because of their views on homosexual behavior. However, the appellate court found
sufficient evidence that deficient performance was the reason for the adverse employment action
rather than disparate treatment.
- The first employee had a lengthy history of not meeting the newspaper's legitimate performance
expectations:
- that she repeatedly violated the employers overtime policies, and
- the employer's decision to transfer her from editorial writing to writing copy was partially based on
the newspaper's desire to monitor her more closely.
- Also, she failed to identify a similarly situated employee who repeatedly violated the newspaper's
overtime policy but did not hold her religious beliefs and was treated more favorably.
- As for the second employee, the basic problem with his claim was that he could not establish that he
was meeting the newspaper's legitimate performance expectations. Undisputed evidence showed
that he had a long history of performance problems ranging from reporting errors to deficient writing
abilities or skills. Further, that deficient performance continued after the newspaper placed him on a
performance improvement plan. Finally, he produced no evidence to support his claim that he was
worked harder than other editorial writers or that the newspaper's other editorial writers had more
errors than he did.
Patterson v. Indiana Newspapers, Inc., No. 08-2050, (7th Cir., 12/8/09); 2009 U.S. App. LEXIS 26692;
courts.gov/tmp/TI0SSH6G.pdf.
Title VII: age, deficient performance; summary judgment affirmed
Illustrative, not controlling law. Performance problems rather than age were the actual reason for the
employer's adverse employment action. Factors of performance deficiencies of importance to the
appellate court were:
- failure to be a team player,
- failure to complete required paperwork,
- failure to correct persistent tardiness, and
- client complaints.
Though he had a good sales record, that was not enough to overcome the performance deficiencies;
a managers' success often depends on sales performance, but that may not be enough to outbalance
other factors. He had, among other things worked on two major deals, but his participation was found
to be tangential and not truly representative of top performance. Thus, the appellate court held that a
reasonable jury could not conclude that his revenue performance outweighed performance
deficiencies enough to raise an inference of pretext. Plus, the manager failed to show that any similar
employees failed to complete paperwork, were consistently late or the subject of client or internal
complaints so as to render suspicious any supposed distinctions in their treatment. Senske v. Sybase
Inc., No. 09-1610 (7th Cir., 12/3/09); 2009 U.S. App. LEXIS 26254; courts.gov/tmp/TI0TPWDK.pdf.
EPLI: Employment Practices Liability Insurance, excluded acts, coverage denied
Controlling Law. The employer EPLI policy expressly excluded liability litigation costs coverage for
violations of federal and state wage laws and compensation relationships. The courts ruled that
contractual term was unambiguous and upheld the insurer's denial of coverage. The employer had
allegedly unlawfully required hourly employees to work "off the clock" without compensation. Payless
Shoesource, Inc. v. The Travelers Cos., Inc., No. 08-3246 (10 Cir., 11/10/09): 2009 U.S. App. LEXIS
24728; courts.gov/opinions/08/08-3246.pdf.
Retaliation: free speech, First Amendment, coincidental personnel problem, investigation, discharge,
timing, motivation not discriminatory
Controlling law. A physician advocating random drug and alcohol testing was held to have been
discharged for reasons other than exercising his right to freedom of speech. Soon after first raising
the testing issue he was investigated for interpersonal conflicts with another physician. Relevant facts
for the appellate court were:
- testing issue raised,

- investigation opened soon thereafter on interpersonal conflicts between complaining physician and
another physician,
- reprimand issued to both of the physicians,
- second investigation showed complaining physician been recommended for probation and
psychiatric treatment because of disruptive conduct, billing fraud and mistreatment of patients , and
- The court concluded that a reasonable person would not be deterred from speaking since the letter
did not discuss his advocacy for random drug testing. Further, the appellate court observed that the
mere temporal proximity of an employee's protected speech to the adverse employment action was
insufficient, without more, to establish a retaliatory motive. Couch v. Board of Trustees of the Mem'l
Hosp. of Carbon County, No. 08-8001 (11/17/09) ; 2009 U.S. App. LEXIS 25182;
ADA, Rehabilitation Act: Independent contractors are covered by the 1973 Rehabilitation Act,
reasonable accommodation
Illustrative; not controlling law. However, though this 9th Circuit case is not controlling law it follows
our 10th Circuit controlling law, so this is a reminder of what the law is in our jurisdiction: Section
504 of 1973 Rehabilitation Act covers independent contractors as well as employees. An
anesthesiologist contracted with the medical center. Before beginning to provide his services he was
asked to sign an addendum to his contract that would have waived the company's obligation to
accommodate his sickle cell anemia condition by adjusting his schedule. He refused to sign the
addendum and his contract was cancelled. Amendments to the Act after 1973 incorporated ADA
standards relating to determining if there has been discrimination. The 9th Circuit also noted that the
Rehabilitation Act is broader than the ADA in that it also covers independent contractors. Fleming v.
Yuma Regional Medical Center, No. 07-16427 ( (9th Cir.,11/19/09); 2009 U.S. App. LEXIS 25406;
ADEA: discrimination, evidence, pattern or practice, Title VII legal theory used
Controlling law. Fortunately, in this area of practice with dozens of laws prohibiting discrimination, the
courts have a strong, continuing tendency to fashion a consistent, coherent system of interpretation.
In this case our 10th Circuit Court of Appeals used the Title VII law of "pattern or practice" to allow
evidence of discrimination in an age discrimination case.
Thompson v. Weyerhaeuser Co., No. 07-7090, 582 F.3d 1125 (10th Cir., 8/26/09); 2009 U.S.App.
LEXIS 20767; 107 Fair Empl. Prac. Cas. (BNA); courts.gov/opinions/07/07-7090.pdf.
Weyerhaeuser terminated 17 employees over the age of 40 in a reduction in force (RIF). In a pretrial
motion, the plaintiffs requested the court to allow them use the "pattern or practice" theory to
demonstrate discrimination prohibited by the ADEA. Weyerhaeuser objected on the ground that the
theory was limited to Title VII, where it is expressly stated [and is not in the ADEA]. However, the 10th
Circuit Court of Appeals noted that the development of the "patterns or practices" has been adopted
by a number of courts in cases other than ADEA violations.
Independent Contractor: employer-employee relationship, final appellate decision pending
Controlling law at some time in the future. This NM Court of Appeals case may be reviewed by the
NM Supreme Court, so we need to follow its status over the next several months to determine what
the final decision will be. Keith v. Manorcare, 2009-NMCA-119, Certiorari Granted, No. 31,958,
October 8, 2009; /nmcases/NMCA/2009/09ca-119.pdf.
FMLA: excessive absenteeism before leave, other performance deficiencies, adequate

documentation, summary judgment in favor of employer
Illustrative; not controlling law. The employee's performance deficiencies had been noted, discussed
with her, and adequately documented, before her medial epicondylitis ["tennis elbow"] problems and
request for intermittent leave for that problem and ovarian cyst problem. The appellate court noted the
following factors it considered:
- Long had not applied for FMLA leave before the documented disciplinary meeting with Branham, her
manager, on September 20,
- Branham already had documented the fact that her absences were negatively affecting the
performance of her group before her request for leave, and
- any comments made by Branham regarding her absences before her FMLA leave absences could
not be used as evidence of FMLA retaliation by Branham.
- Also, Larkin, HR manager, conducted an independent investigation in which she reviewed not only
Branham's comments, but information from others as well, and
- the decision to fire Long ultimately was made by Bauman, Executive Director, who relied on multiple
sources of information, and was unaware of her FMLA leave.
Long v. Teachers' Retirement System of Illinois, No. 08-3094 (7th Cir., 10/23/09); 2009 U.S. App.
LEXIS 23427; 15 Wage & Hour Cas. 2d (BNA) 705;2009 WL 3400955;
courts.gov/tmp/SP0P6GBM.pdf.
Covenant not to compete
FYI. This is A 10th Circuit case based on Oklahoma law, so applicability is limited unless a case in our
jurisdiction arises and one of our courts might find the reasoning persuasive as a basis for controlling
law. Southwest Stainless, LP v. Sappington, 08-5127, 582 F.3d 1176 (10th Cir., 9/21/09); 2009 U.S.
App. LEXIS 20915); 158 Lab. Cas. (CCH) P60,870;29 I.E.R. Cas. (BNA) 1287;
Immigration: sentence for employing undocumented workers, 10 years
Illustrative: not controlling law - but this case does catch a human resource person's attention. A
company official was sentenced by the federal trial judge to 10 years for employing undocumented
workers who were paid in cash [no withholding for federal income tax, Medicare or Social Security].
He pleaded guilty to conspiracy to defraud the federal government, which amounted to about $16M,
and to harboring 100 undocumented alien workers. Also, he attempted to send his assets outside of
the USA and leave the country. The statutory penalty is 120 months, and the 6th Circuit Court of
Appeals affirmed the imposition of that maximum amount of time by the trial judge, who considered
mitigating factors of the federal sentencing guidelines: the defendant's age, criminal history, health,
family ties and health of son and cooperation with the federal government. United States v.
Rosenbaum, 08-1339 (6th Cir., 11/3/09); 2009 U.S. App. LEXIS 24106; 2009 FED App. 0380P (6th
Cir.); courts.gov/opinions.pdf/09a0380p-06.pdf.
FLSA: hospital's pay plan for nurses with different rates for different length shifts, collective bargaining
agreement with pay rate differential, previous US Supreme Court case precedent
Illustrative; not controlling law [Note: However, reasoning was based on a prior United States
Supreme Court case]. A California health care employer was allowed to set different pay rates for
different length shifts in order to maintain revenue neutrality because it otherwise complied with the
minimum wage and overtime requirements of the FLSA and other applicable law. It paid employees
on a 12-hour shift a lower base salary than those working on an 8-hour shift, which was a negotiated
term of its 2003 collective bargaining agreement (CBA). Wages did not go below the minimum wage.
The United States Supreme Court case of Walling v. A. H. Belo Corp., 316 U.S. 624, 628-30 (1942),
stated, "[N]othing in the [FLSA] bars an employer from contracting with his employees to pay them
the same wages that they received previously, so long as the new rate equals or exceeds the
minimum required by the [FLSA]." The plaintiff produced no evidence that the regular rates
memorialized in the CBA were artificially low, or Pomona set pay rates in a manner that would relieve
it of overtime obligations. Further, the plaintiff and other nurses were paid overtime under the
hospital's pay plan using an authorized method of calculating the regular rate known as the "weighted
average method," set forth in federal overtime regulations (29 C.F.R. § 778.115) and the CBA.
Plaintiff's claim was rejected because she produced no evidence showing that the pay plan violated
the FLSA. Parth v. Pomona Valley Med. Ctr., No. 08-55022 (9th Cir., 10/22/09); 2009 U.S. App. LEXIS
ADEA: policy violation, discharge; age comment not proximately connected
Illustrative; not controlling law. A 57 year old worker was fired for using the employer's computer
system to access pornographic material and was replaced by a 43 year old worker. The company had
a strict written policy that its computer system was to be used exclusively for business purposes and
that "indecent, profane, obscene, intimidating, or unlawful material may not be sent or downloaded by
any form of electronic means or displayed on or stored in the Company's computers or printed."
Further, "System Users are responsible for all transactions made using their passwords," and that
violations of the policy may result in disciplinary action up to and including termination. That was
found to be the basis for his termination. He had also alleged that a comment made several years
earlier by a member of "top management" was too remote in time to be considered n the age
discrimination claim. Cervantez v. KMGP Services Company Inc., No. 08-11196, (5th Cir., 9/16/09);
2009 U.S. App. LEXIS 20702; 107 Fair Empl. Prac. Cas. (BNA) 369;
courts.gov/opinions%5Cunpub%5C08/08-11196.0.wpd.pdf.
ADA, Rehabilitation Act: protected activity, complaints, retaliation
Illustrative; not controlling law. A special education Resource Specialist Program teacher with the
Riverside County Office of Education in California began in 2003 to express her concerns that special
education services were not complying with state and federal laws. Ultimately she and a coworker
filed a lawsuit against the school district based on those concerns. She had resigned in August 2006
and alleged it was because she was being excluded from meetings, that her caseload was reduced,
and that she was refused certain work, all because of her support of the students and complaints on
their behalf. Retaliation id prohibited by both the ADA and the Rehabilitation Act, § 504, prohibit
retaliation. The district contended that she could not bring a retaliation claim because she was not a
"qualified individual with a disability" and that she had no "close relationship" to the disabled students.
The appellate court found that both acts had broad anti-retaliation prohibitions against retaliation
against "any individual" who is harmed after attempting to protect the rights of the disabled. Further,
though Title I of the Rehabilitation Act covers employment relationships, Title II services and other
conditions for the disabled. Barker v. Riverside County Office of Education, No. No. 07-56313 (9th
Cir., 11/23/09); 2009 U.S. App. LEXIS 23343; courts.gov/datastore/opinions/2009/10/22/07-
56313.pdf.
ADA: continuing responsibility to accommodate
Illustrative, not controlling law [Editorializing is not something I want to engage in, but this California
opinion seems heavily weighted in favor of the employee. Read it as a cautionary note that there may
be a continuing need to make sure that accommodations are being provided, such as making sure
that new or newly assigned supervisors and managers are aware of ADA accommodation. Many
federal cases require that both employers and employees have a responsibility to engage in an
interactive accommodation process, and if an employer is required to provide a continuing

accommodation, then an accommodated employee probably ought to have a continuing responsibility
of interactive participation. Further, there are many cases declaring that employees need to speak up
to protect themselves, or they will lose their rights.] A.M. v. Albertsons LLC, No. A122307, 178 Cal.
App. 4th 455 (Court of Appeal of the State of California, First Appellate District, Division Four
9/18/09); 2009 Cal. App. LEXIS 1675; Internet:
http://www.courtinfo.ca.gov/opinions/documents/A122307.PDF.
PERA: NM Public Employees Retirement Association, disability benefits, qualification for benefits, two
statutes, which statutory applies - NMSA 1978 §§ 10-11-10.1(C)(2)(a) and 10-11-10.1(C)(1)(1a)
Controlling law. Two statutory sections apply to disability benefits for public employees, but neither
of them covered the peculiar situations of a juvenile corrections officer and a fireman. This is a
complicated case that applies to unusual circumstances, so the best thing for any human resources
and employment law practitioner dealing with those laws is to read the full opinion. Of interest is the
perspective the opinion's analysis that favors continued employment of the disabled rather than
maneuvering for disability benefits.
Gonzales v. State Of New Mexico Public Employees Retirement Association, 2009-NMCA-109,

Certiorari Not Applied For; Internet: /nmcases/NMCA/2009/09ca-109.pdf. [Note: This is a final
decision because neither party petitioned the N.M. Supreme Court to review it.]
ADA: reasonable accommodations, interactive process, disabled employees must provide

corroborating evidence of non-obvious, medically necessary accommodations
Illustrative; not controlling law: Employers need to be alert and aware of when an accommodation
may have been requested in order to promptly begin the interactive process with the employee of
what may be needed, assess the potential costs, possible alternatives and reasonableness. In this
case an employee with seasonal affective disorder (SAD), a form of depression, needed a classroom
that provided sunlight necessary to alleviate SAD. Though the school had two such classrooms
available, it failed to provide them despite that being a reasonable accommodation that carried no
cost. Instead, they merely addressed other work issues the teacher had also raised. Ekstrand v. Sch.
Dist of Somerset, No. 09-1853 (7th Cir., 10/6/09); 2009 U.S. App. LEXIS 21912; Internet:
courts.gov/tmp/S30JVJVX.pdf.
FMLA: disabled employees must provide corroborating evidence of non-obvious, medically necessary
accommodations; demotion for unexcused absences, mandatory limit of four
Illustrative of a potential problem; not controlling law. In complicated situations such as this, managers
and supervisors ought to contact their human resources experts as soon as possible and let them
handle it, and perhaps human resources staff may need to seek advice immediately from an
experienced, competent employment law attorney. Another option is to not make snap judgments and
inquire further for more information, but being careful to avoid an ADA claim of regarding an employee
as being disabled (e.g., a "regarded" claim arising from saying it sounds as if employee is an
alcoholic). Also, as you probably know, absences for use of alcohol are not protected under the
FMLA, but absences for treatment are.
It isn't necessary for an employee to mention the FMLA by name, but amended regulation 29 CFR
825.303(b) requires that an employee requesting FMLA leave must specifically state either (1) the
reason why the employees would qualify for FMLA leave (e.g., depression, epilepsy, pregnancy, heart
attack, etc.) or (2) that the employee specifically is requesting FMLA leave in order to alert the
employer of an FMLA situation as distinguished from other leave matters. Of course, it is essential for
employers to train their employees about that notice requirement.
Scobey v. Nucor Steel-Arkansas, No. 08-1192, 580 F.3d 781 (8th Cir., 9/25/09); 2009 U.S. App.
LEXIS 19094; 158 Lab. Cas. (CCH) P35,625; 92 Empl. Prac. Dec. (CCH) P43,655; 15 Wage & Hour
Cas. 2d (BNA) 340; Internet: courts.gov/opndir/09/08/081192P.pdf. [*Note: Regulation:
http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.303.htm.]
Talmadge Scobey worked as a "ladle man" in a steel mill. It is a demanding rotating position, but at
the time it paid $80-90K per year. Nucor's attendance policy allowed termination after four unexcused
absences. Scobey missed four consecutive days and had not called in. His excuse was alcoholism
and depression set off by the death of his ex-wife's father, and he had no recall of that four day
period. He requested his employer provide him assistance. Nucor referred him an in-patient treatment
facility and then an out patient facility. Because of his unexcused absences he was demoted to a
lesser position on night shift at about 50-60% of his former compensation. Scobey claimed violations
of the FMLA on the grounds that Nucor should have known he was claiming FMLA leave and rights
and that the demotion was an attempt by the company to fore him to quit.
He had told his supervisor and said he was suffering from a nervous breakdown. He sounded
intoxicated and the supervisor believed he was making excuses to avoid work.
The appellate court appellate majority opinion noted Scobey's affirmative duty to give proper notice of
his need for FMLA leave [Note: The requirements stated above at the beginning of this brief]. The
dissenting opinion pointed out that the statement about depression [Note: mentioning a serious
medical condition by name] ought to have been considered sufficient to put the employer on notice of
need for FMLA leave - and some Nucor employees had expressed concern over Scobey's mental
condition.
ERISA: a covered plan may consist of individual policies rather than group insurance policies
Illustrative; not controlling law. Alexander v. Provident Life and Accident Insurance Co., No. 1:09-CV-
27 (E.D. Tenn. Oct. 16, 2009). Dr. Alexander was covered by a disability policy provided to him by
purchase of an individual disability income policy with premiums paid by his medical group. 29 U.S.C.
§ 1002(1) defines an employee welfare benefit plan or program as (1) established or maintained by
either an employer or employee organization, (2) to provide benefits enumerated by statute, and (3)
to participating employees or their beneficiaries as held in Donovan v. Dillingham, 688 F.2d 1367,
1371 (11th Cir., 1982), and in numerous other decisions cited in this case: Stern v. Provident Life and
Accident Ins. Co., 295 F. Supp. 2d 1321, 1326 (M.D. Fla. 2003) (employer established a plan by
paying premiums for individual disability policies); Jaffe v. Provident Life and Accident Ins. Co., 2000
U.S. Dist. LEXIS 4689 (S.D. Fla. Mar. 21, 2000) (same where the employer entered into a "salary
allotment agreement" pursuant to which it paid premiums for coverage under individual disability
insurance policies to the owners of an ophthalmology practice and to at least one non-owner
employee for eight years, even though the employees later reimbursed the association for the
premiums paid); Massachusetts Cas. Ins. Co. v. Reynolds, 113 F.3d 1450, 1453 (6th Cir. 1997)
(employer established a plan through the purchase of individual disability policies for employees);
Madonia v. Blue Cross & Blue Shield of Virginia, 11 F.3d 444, 447 (4th Cir. 1993) ("employers may
easily establish ERISA plans by purchasing insurance for their employees"); 26 C.F.R. § 1.105-1(d)
(employee benefit plans may be funded by one or more individual insurance policies).
DOT: drivers, medical marijuana, state licensing of use
Department of Transportation guidelines issued 10/19/09 to federal prosecutors. Although a

state might license regulated medical use of marijuana, that does not protect a transportation
employee from an adverse employment action if testing positive for use of that substance. The DOT
regulates truck and bus drivers, railroad employees, airline employees, transit system workers, and
pipeline and hazardous material workers, and certain workers on navigable waters.
http://www.justice.gov/opa/documents/medical-marijuana.pdf. As of the date of that memorandum
those states are Alaska, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New
Mexico, Oregon, Rhode Island, Vermont and Washington.
NLRA, Unions: collective bargaining agreement (CBA), successor liability (one business acquired by
another business)
Two illustrative cases: What is a "perfectly clear" successor? It is an employer that has led the
employees of the predecessor company to believe that there would be no change in their
employment status if they accepted employment with the successor employer. In such an instance
the successor employer cannot unilaterally impose the initial terms and conditions of employment, but
rather must either (1) continue the predecessor's terms and conditions until a new agreement with the
union is achieved or (2) if negotiations reach an impasse, then successor employer is privileged to
unilaterally implement new terms. Two different results were reached in these cases because the
facts were different, so seriously consider working with a competent and experienced labor law
attorney:
- S & F Market St. Healthcare LLC, d/b/a Windsor Convalescent Ctr. of Long Beach v. NLRB, 570
F.3d 354 (D. C. Cir. 2009). A nursing home was purchased and the successor employer announced
that employees should anticipate that it "intends to implement significant operational changes," and
that any offer of employment would be contingent on passing a physical examination, a drug test, and
a background check. Additionally, the actual offers of employment expressly stated that they were for
temporary employment, without benefits, and that the employment would be at will. The NLRB ruled
against the successor employer, but the appellate court overturned that ruling because "no employee
could have failed to understand that significant changes were afoot," and that by announcing that any
employment with S & F would be at will, "S & F was announcing a very significant change in the
terms and conditions of employment." 570 F. 3d at 360. Further, the Board's focus on "core" terms of
employment "misstates the rule, which is that the successor employer must simply convey its
intention to set its own terms and conditions rather than adopt those of the previous employer." Id at
561.
- Local 34 S, UFCW v. Meridian Mgmt. Corp., 2009 WL 3151791 (2d Cir. 2009). In this case the court
ignored the "perfectly clear" reasoning and held that the successor employer had to arbitrate with the
union on the issue of determining the extent to which the successor was bound by the CBA. The
union had sued under the NLRA and ERISA because there were existing union health and welfare
fund benefits under the CBA of the predecessor employer.
Sarbanes-Oxley, SOX: whistleblower protection
Illustrative; not controlling law. Under what circumstance does SOX whistleblower protection apply? In
order to qualify as a protected activity under the SOX the communications in question must
"definitively and specifically" relate to one of the listed categories of fraud or securities violations listed
in the Act. The appellate court found that the plaintiffs' statements to their superiors regarding the
nondisclosure of certain information prior to the company merger met this requirement. Also, it noted
that the plaintiffs were not required to "cite a code section" they believed was violated to trigger the
protection of the Act. Next, the plaintiffs' subjective belief that the conduct they report violated SOX
was objectively reasonable - "Requiring an employee to essentially prove the existence of fraud
before suggesting the need for an investigation would hardly be consistent with Congress's goal of
encouraging disclosure." Finally, the close timing of the reporting and the discharge of the employees
yet another factor for a jury to consider. Summary judgment in favor of the employer was reversed.
Van Asdale v. International Game Technology, No. 07-16597, 577 F.3d 989 (9th Cir., 8/13/09); 2009
U.S. App. LEXIS 18037; 92 Empl. Prac. Dec. (CCH) P43,644; Fed. Sec. L. Rep. (CCH) P95,314;
Internet: courts.gov/datastore/opinions/2009/08/13/07-16597.pdf.
Computer Fraud and Abuse Act, CFAA: discharged employee, emailing documents to home before
discharge, access without authorization
Illustrative; not controlling law. Timing was critical in this case. The employee was still employed and
authorized to access names of treatment facilities and names of current and past patients of his
employer at the time he transferred that information to his home computer. The CFAA only covers
certain situations, such as unauthorized access. Whether the employer ought to have used another
legal theory or have obtained an express agreement during employment prohibiting such potentially
disloyal activity is another matter. LVRC Holdings v. Brekka, No. 07-17116, 581 F.3d 1127 (9th Cir.,
9/15/09); U.S. App. LEXIS 20439; 29 I.E.R. Cas. (BNA) 1153; Internet:
ADA: essential functions, typical, exceptional, employer's judgment.
Controlling law. Perhaps too often essential functions are considered to be those performed daily,
weekly or regularly. However, some essential functions that seldom need to be performed can still be
critically essential when a rare situation arises. For example, occasionally a police officer may need to
fire a weapon, and then good marksmanship is essential - it may not happen often, but when it does,
being a good shot is definitely essential.
In this case a physician's assistant (PA) working in intimate contact with prison inmates might on rare
occasions need to be physically able to take appropriate action if violence occurs. Our Tenth Circuit
Court of Appeals tends to give strong consideration to an employer's judgment of what is an essential
function. With that in mind, employers need to be able to substantiate their judgment and to have
solid documentary evidence supporting how they reached that decision.
Hennigar v. Utah Dep't of Corrections, No. 08-4087 (10th Cir., 9/10/09); 2009 U.S. App. LEXIS 20163
(10th Cir., 9/10/09).
Barbara Hennigar worked for the Department of Corrections (DOC) as a PA. The DOC decided it
wanted its medical and clinical personnel working in intimate contact with prison inmates to be in the
public safety retirement (PSR) system PSR informed DOC that only employees meeting Utah's peace
officer standards (POST) qualified for PSR. Hennigar suffered from medical conditions that included
lupus, osteoarthritis, rheumatism, avascular necrosis and fibromyalgia that restricted her ability to run,
climb stairs, flex, sit, lift and bend. Because if this she was not physically able to meet POST
requirements. DOC offered her the ADA accommodation of transferring to another facility where she
could function as a PA and not have to meet POST requirements. She was informed that if she
refused the transfer her employment would be terminated. She refused and filed a grievance on the
grounds that termination was a threat and was harassment based on her disabilities. She continued
to refuse that transfer offer and other transfer offers.
Essential function claim:
Proof of such a claim requires that she show that (1) she had an ADA disability, (2) she was qualified
to perform the essential functions of her job with or without reasonable accommodation and (3) she
suffered discrimination because of her disability. Factors courts consider may be:
- the judgment of the employer about what are essential functions,
- written job descriptions [make sure they are accurate],
- how much time is spent on each function,
- the effect of on the position of not requiring functions to be performed,
- work experiences of employees in the same or similar jobs.
She offered these points:
- the POST requirements weren't required at her location when she was hired,
- for years she had successfully performed without POST qualifications, and
- POST qualifications were necessary only to qualify for PSR benefits.
The Tenth Circuit rejected that on the grounds that "the ADA does not limit an employer's ability to
establish or change the content, nature, or functions of a job." Further, the court added that the
question of whether a job function is essential is determined at the time when it is imposed.
Of importance to the appellate court was the DOC manager's judgment the POST certification was
essential if and inmate might possibly physical attack a health care provider. DOC evidence showed
that had happened a few years earlier when a medical technician was performing her duties.
Consequences of such an attack can be severe, noted the court, and thus it is reasonable for the
DOC to require POST certification.
Reasonable accommodation claim:
She claimed she ought to have been "grandfathered" in or had her job description changed. The
appellate court found that amounted to changing the job or creating one for her, which the ADA does
not require. Thus, her proposed accommodations were found to be unreasonable.
Retaliation claim:
She had to prove she had suffered an adverse employment action, but the appellate court found it
was not an action that would tend to dissuade a reasonable worker from claiming discrimination.
Timing is also critical to proving a retaliation charge, and the appellate court found that filing a
grievance several months after the events was too long to prove a causal connection between the
events and the employment action
Title VII: sexual harassment, hostile work environments, continuing series of unwelcome events
Illustrative; not controlling law because it is a district court decision that binds only the parties to the
litigation. Nonetheless, the reasoning applied to the events might be persuasive to other courts.
Loya v. Wal-Mart Store East, L.P., No. CIV 08-0278 RB/CEG (D.N.M., 7/27/09)
Here's where you can read the federal trial judges' detailed order setting forth the chronology:
/cases/Loya.pdf.
Privacy: employee private website, invitation only, questionable permission from employee for
manager to use her password, repeated access by management
Instructive; not controlling law. Though this is a New Jersey federal district court case unpublished
opinion, it is worth knowing about as a caution of how far an employer may go, and probably not go,
to check on Internet activities of its employees.
Pietrylo v. Hillstone Restaurant Group d/b/a Houston's, D.N.J., No. 06-5754 (unpublished, 9/25/09);
Internet: /uploads/file/PIETRYLO%20v%20%20HILLSIDE%20RESTAURANT.pdf.
Outline:
-Some Houston employees had a MySpace chat group, "Spec-Tator", that Pietrylo maintained during
times when he was not at work, and access could only be by an electronic invitation from him.
- No company equipment or employee work time was involved.
- A chat group member informed a manager of the existence of the site.
- Site language stated that the group was private.
- A managers asked the informant for her password, which she gave him. [One issue at trial was
whether she did this voluntarily, and her testimony was that she felt that she "would have gotten in
trouble" if she hadn't provided her password, i.e., indicating coercion. Note that there was no
company documentation of authorization by the employee allowing the password to be used - and
that still might have left an issue of coercion.]
- Managers accessed the site on several separate occasions.
- Management found the language offensive, and firings followed.
Pietrylo and another employee sued under the federal Stored Communications Act (SCA) and the
New Jersey Wiretapping and Electronic Surveillance Control Act. They won compensatory and
punitive damages, which the trial court upheld.
Check this site for additional information on applicable law:

http://www.di/2009/08/employer_access_of_employee_di.html.
Title VII: sex, gender, harassment, hostile work environment, severity and/or pervasiveness,
"constructive notice" of workplace problem, evidence of other complaints, probative value, integrated
enterprise, interrelation of parent and subsidiary operations, common management, centralized
control of labor relations, and common ownership or financial control
Illustrative; not controlling law. This is a complex problem, as can be seen from the many facets of the
court's discussion and the considerations pointed out by the dissenting opinion. This case involved a
parent company (parent) and one of its subsidiary companies (subsidiary). Parent had approximately
100,000 employees and operations were conducted in about 400 locations.
Sandoval v. American Bldg. Maintenance Indus., No. 08-2271, 578 F.3d 787 (8th Cir. 8/26/09); 2009
U.S. App. LEXIS 19197; 107 Fair Empl. Prac. Cas. (BNA) 38.
Liability of parent:
Should a parent company be liable for the actions of a subsidiary? As a practical matter, are related,
though distinct, companies significantly enough interrelated that for Title VII purposes they ought to
be treated as one company? Are the two operations essentially an "integrated enterprise"? The 8th
Circuit ruled that a parent company could be found to employ its subsidiary's employees if either:
- the parent company sufficiently dominates the subsidiary's operations to the extent that the two are
one entity and therefore one employer, or
- the parent company could be linked to the alleged discriminatory action because it controls
individual employment decisions.
Based on this test, the 8th Circuit Court of Appeals found there was substantial evidence the parent
company dominated its subsidiary, primarily that:
- there were officers in common (Chief Executive Officer and Chief Financial Officer, among others),
- the parent company owned all of the subsidiary's stock, and
- the subsidiary's labor relations were under the parent company's centralized control.
Harassment:
Now the, what about evidence of other harassment, known or unknown? The 8th Circuit court stated,
known or unknown, that kind of evidence is "highly probative of the type of workplace environment
[the plaintiff] is subjected to, and whether a reasonable employer should have discovered the sexual
harassment." Thus, such evidence should be considered by a judge or jury when trying the facts. The
dissenting judge thought that was a troublesome problem in situations involving complaints distant,
different locations, in this case about 400 of them. [Note: Because this case is not controlling law in
our 10th Circuit jurisdiction, that factual issue of whether a parent company should be on
"constructive notice", i.e., "knew or should have known", has not been decided here.]
As a review of what constitutes "hostile work environment", read this quote for the United State
Supreme Court Case of Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 140 L. Ed. 2d
201, 118 S. Ct. 998 (1998).
A hostile work environment exists if the workplace is "permeated with discriminatory intimidation,
ridicule, and insult [*11] that is sufficiently severe or pervasive to alter the conditions of the victim's
employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17,
21, 126 L. Ed. 2d 295, 114 S. Ct. 367 (1993) (internal citation and quotation omitted). The conduct in
question must be judged by both a subjective and an objective standard. See id. To determine
whether an environment is hostile, courts must look at all the circumstances, including the "frequency
of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee's work performance."
Faragher v. Boca Raton, 524 U.S. 775, 787-88, 141 L. Ed. 2d 662, 118 S. Ct. 2275 (1998) (internal
quotation and citation omitted)
[Note: After some further consideration about the dissent, perhaps there is little difference between
this case and one involving a very large corporation. More importantly, though, no matter what the
size of a company, training of all employees at all levels about harassment is essential.]
Title VII: sex stereotyping
Illustrative; but this would be covered in our jurisdiction by the controlling law of the NM Human
Rights Act. This case prohibits an employer from discriminating against applicants or employees it
thinks do not conform with gender stereotypes, i.e., how we think people should look, talk, act, etc..
Prowel v. Wise Business Forms, Inc., No. 07-3997 (3d Cir., 8/28/09); 2009 U.S. App. LEXIS 19350;
107 Fair Empl. Prac. Cas. (BNA) 1; Internet: courts.gov/opinarch/073997p.pdf. As you will recall, the
NM Human Rights Act covers employers of 15 or more employees as follows:
§ 28-1-2, subsections:
P. "sexual orientation" means heterosexuality, homosexuality or bisexuality, whether actual or

perceived; and
Q. "gender identity" means a person's self-perception, or perception of that person by another, of the
person's identity as a male or female based upon the person's appearance, behavior or physical
characteristics that are in accord with or opposed to the person's physical anatomy, chromosomal sex
or sex at birth.
Title VII: whistleblower, reporting sexual affair, retaliation
Controlling law. A majority of federal appellate circuit courts are in line with our 10th circuit's ruling
that favoritism toward an employee based on a consensual sexual relationship is not prohibited by
Title VII.
Anderson v. Oklahoma State Univ. Bd. of Regents, No. 08-6249 (10th Cir., 8/17/09); 2009 U.S. App.
LEXIS 18268; 107 Fair Empl. Prac. Cas. (BNA) 126; Internet from Hall & Evans: /publisher/EndUser?
Action=UserDisplayFullDocument&orgId=102083&topicId=117200056&docId=l:1025180534&isRss=true
Charles Anderson was an assistant director for the Oklahoma State University (OSU) Center for Local
Government Technology (CLGT). Anderson believed that Michael Hughes, his supervisor, was having
an affair female employee, Ms. Kiner. Anderson reported this believed affair to several OSU officials,
and he also complained that he and other employees other employees of both genders thought Kiner
was difficult to work with. Responding to these allegations, OSU officials investigated and concluded
that Hughes and Kiner were not involved in an inappropriate relationship. Afterwards, Anderson
wasn't included in managerial meetings felt excluded for department activities. When a legislative
funding decrease resulted in a reduction in force (RIF), Anderson's employment ended, and he
claimed age discrimination and retaliation.
Retaliation against whistleblowers is prohibited by Title VII. Proof required for a retaliation claim is:
- engaged in a protected opposition to prohibited discrimination,
- suffered an employment action a reasonable employee would find significantly adverse, and
- there was a causal connection between the protected activity and the adverse action.
An earlier case, Taken v. Okla. Corp. Comm.'n, 125 F.3d 1366 (10th Cir., 1977) was cited by the 10th
Circuit Court of Appeals in its decision against Anderson in rejecting his claim . . . "preferential
treatment on the basis of a consensual romantic relationship between a supervisor and an employee
is not gender-based discrimination." Further, that case ruled that Title VII's reference to "sex" means a
class delineated by gender rather than sexual affiliations, and rejected a Title VII discrimination claim
based on allegations that a supervisor chose his mistress for promotion because of their romantic
relationship. For that reason, Anderson also lost his discrimination case.
NM Public Employee Bargaining Act: arbitration, award, availability of funds; statutory construction,
NMSA §§ 10-7E-18(B) and -17(E)
Controlling law; however, for the most part the facts and statutory provisions involved are specific to
the parties involved. Generally, though, the decision is that under the PEBA an arbitration award
requiring a public employer other than the state to expend funds is contingent upon the appropriation
and availability of funds. International association of Fire fighters, Local 1687 v. City of Carlsbad,
2009-NMCA-097, cert. den. No. 31,833, July 30, 2009; Internet full text: /nmcases/NMCA/2009/09ca-
097.pdf.
FMLA and ADA: disability, intermittent leave, reasonable accommodation, absence caused by
disability
Illustrative; not controlling law. As you know, cases from outside of our 10th Circuit of Appeals
jurisdiction are not binding law here; also, district trial court decisions are not binding authority other
than for the parties involved in that particular case (no matter what jurisdiction). However, a well-
reasoned case may have persuasive value in the future for our courts, and paying heed to such a
decision may be good business practice. Two key points in this Oregon federal district court are (1)
the difficulties in managing workers with chronic conditions who require intermittent leave as an
accommodation and (2) in the ninth circuit employers are prohibited from taking adverse employment
action against an employee for conduct that may be caused by a disability. Accordingly, it is probably
a good practice for employers to with competent human resources and employment law counsel with
counsel about most appropriate response for requests for leave and other accommodations [Note:
See Gambini v. Total Renal Care, Inc., 486 F.3d 1087, 1093, 19 AD Cases 344 (9th Cir. 2007) briefed
earlier in this database].
The current case briefed here is Waters v. Fred Meyer Stores Inc., 22 A.D. (BNA) Cases 436 (D. Or.
2009); more detailed article from Jackson Lewis law firm on the Internet at: /legalupdates/article.cfm?
aid=1865.
This employer counted absences from intermittent leave caused by the employee's disability of
narcolepsy. The employer filed a motion for summary judgment [i.e., dismissal without trial] and the
federal trial judge denied it because that could be an interference with FMLA rights and a failure
under the ADA to reasonably accommodate a disability. This does not mean that the employee won
the case because the issues to be tried were (1) was the employer's application of it absenteeism
policy a pretext for discriminating against the disabled employee and (2) could the employer have
reasonably accommodated the absences.
Waters suffered from narcolepsy and needed to take intermittent leave. The employer had a policy
prohibiting excessive absence from work. The facts are extensive and complex, which is why I refer
you to the article or the actual reported decision because briefing may leave out an important matter,
and a detailed description would essentially be a repeat of this well written article. Many issues are
involved:
- Was this an ADA case. i.e., did her narcolepsy, headaches and fatigue qualify as substantially
limiting a major life activity?
- Were her absences related to her narcolepsy?
- Was this an FMLA case?
- Was the medical information supplied sufficient?
- Did the phone calls from the employee provide sufficient notice to the employer of possible ADA and
FMLA issues?
- Should the employer have followed up to gather more medical evidence and expert medical opinion
on those issues?
- Should the employee have been charged with the absences pending sorting out the issues and
gathering more information?
FMLA: request, no leave taken, fired, retaliation
Illustrative; not controlling law. The employee was fired merely for requesting FMLA leave; she did not
actually take FMLA leave. Though this case is not applicable law in our federal court jurisdiction, it
demonstrates persuasive reasoning that firing a person just for requesting FMLA leave can be an
interference with FMLA rights. The Third Circuit Court of Appeals [ours is the 10th] reasoned that "it
would be patently absurd if an employer who wished to punish an employee for taking FMLA leave
could avoid liability simply by firing the employee before the leave begins." Erdman v. Nationwide Ins.
Co., No. 07-3796 (3rd Cir. 9/23/09); .
2009 U.S. App. LEXIS 20979; Internet: courts.gov/opinarch/073796p.pdf.
Title VII: gender, police promotion denied, arguably better qualified, discriminatory atmosphere
Illustrative; not controlling law. A female police officer's case was dismissed on summary judgment
(i.e., no trial), but the appellate court ruled she is entitled to trial on her pretext issue. The department
claimed that two males promoted had better scores. What did the evidence show?
- That claim by the department was untrue because her scores were actually higher;
- Comments by male officers and command staff were:
- degrading remarks about women, and
- expressions of opinion that females would never be promoted to command positions provided
additional evidence of pretext.
- Additional evidence of a discriminatory atmosphere included:
- a lieutenant's distribution of preferable shift assignments to males,
- choice of what extra-duty assignments they would get, and not giving the same choice to females.
The appellate court majority said "[M]anagement's consideration of an impermissible factor in one
context may support the inference that the impermissible factor entered the decisionmaking process
in another context." Risch v. Royal Oak Police Dept., No. 08-1883 (6th Cir., 9/23/09); 2009 U.S. App.
LEXIS 20980; 2009 FED App. 0342P (6th Cir.); courts.gov/opinions.pdf/09a0342p-06.pdf.
Title VII: termination, lying, severity, first offense; alleged disparate treatment
Illustrative; not controlling law. How severe must misconduct and violation of policy be to warrant
immediate termination? Employee meal breaks were limited by company policy to 30 minutes, and
lying is a serious enough offense for immediate discharge. In this case employees took 45 minutes.
When questioned, four of the five employees lied by denying they had taken a meal break. The fifth
employee, a Hispanic male, had told the truth. The liars were discharged, but the honest employee
was not. On appeal, the court rejected the disparate treatment claim of the discharged employees on
the ground that the honest employee was similarly situated, but he was not fired because he told the
truth and did not violate company policy against lying. Thus there was no "reverse discrimination".
Antonetti v. Abbott Laboratories, No. 08-1647, 563 F3d 587 (7th Cir., 4/21/09); 2009 U.S. App. LEXIS
8254; 106 Fair Empl. Prac. Cas. (BNA) 17;92 Empl. Prac. Dec. (CCH) P43,533.
ADEA: human resources functions outsourced to third-party provider, third-party discrimination
Illustrative; not controlling law. If an employer contracts out certain functions relating to its usual
functions, it may well be liable for the actions of the independent contractor, so be sure that your
independent contractor is knowledgeable and competent. In this case, the third-party human
resources contractor told an applicant he was "too old" for the job. The employer argued that it was
not responsible for the acts of the independent human resources service provider. Potential liability in
this instance depended on whether the independent contractor was hiring the applicant to work for
him as a fellow independent broker, or rather was making the hiring decision for the actual employer
as its agent. It has long been settled law in general that a principal (here, the employer) is liable for
the acts of its agent (the third-party human resources person) for acts within the scope of the duties of
the agent being performed on behalf of the principal. Halpert v. Manhattan Apartments, Inc., No. 07-
4074-cv, (2nd Cir., 9/10/09); 2009 U.S. App. LEXIS 20156.
Lily Ledbetter Fair Pay Act: retroactive claim, Fair Pay Act violation, time for filing, gender and age
discrimination
Illustrative; not controlling law [a district court ruling has limited precedential value, and its value
generally is limited to persuasive reasoning]. As you will recall, the Ledbetter legislation allowed
discrimination claims to be filed for discrimination violations occurring before the 300 (or in some
jurisdictions, the 180 day cutoff) for claims. This female claimant discovered after about three years
that she had been paid about $7,000 less than a comparable male manager, and the employer did
not respond to her request to make up the difference. At trial the district court dismissed her claim
[Note: Ledbetter was not enacted at that time.] By the time the case was on appeal, Ledbeter had
been enacted and the appellate court allowed her claim to go forward because she had filed with in
the EEOC time limit of 300 days. Mikula v. Allegheny County, (3rd Cir. Sept. 10, 2009); 2009 LEXIS
2889742.
Lily Ledbetter Fair Pay Act: pension benefits, retroactive claim, age discrimination
Illustrative; not controlling law. As you will recall, the Ledbetter legislation allowed discrimination
claims to be filed for discrimination violations occurring before the 300 (or in some jurisdictions, the
180 day cutoff for claims). Benefits were at issue here. The employer contended that his age
discrimination claim was untimely, plus he was not yet retired and entitled to the affected pension
benefits. The district court ruled that the claimant was adversely affected by the employer's decision
to change his benefit accrual rate each time he received a credit toward his pension benefit, and thus
because he had filed his EEOC charge within 300 days of receiving an allegedly discriminatory credit
toward his pension benefit his claim was timely under the Ledbetter Act. Tomlinson v. El Paso Corp.,
2009 WL 2766718 (D. Colo. Aug. 28, 2009),
Title VII: notice requirements, statute of limitations, equitable tolling
Illustrative; not controlling law [a district court ruling has limited precedential value, and its value
generally is limited to persuasive reasoning]. We don't know what the Second Circuit Court of Appeals
and/or the United States Supreme Court might rule in this case. However, this case illustrates the
importance of meeting requirements and how doing that is far less expensive and time consuming
than litigating such an issue. Title VII requires notices of important rights and duties under the act to
be communicated adequately and in an accessible format. One of the requirements is that notices
must be prepared by or approved by the EEOC and conspicuously posted in the same place where
other employee notices are customarily maintained. N most instances, the limitations period for filing
a claim is 300 days. This employee filed her claim of discrimination based on her race, sex and/or
national origin 364 days after the event or events. Her employer moved for dismissal because her
filing was untimely. Here response to that was the doctrine of equitable tolling applies because her
employer had not posted the required notice and she was unaware of the limitation until she
consulted a lawyer. "Equitable tolling" essentially means that it would be unfair for the employer to
raise the defense that her claim was filed late when she was not properly notified by her employer of
the time limit. The federal trial court agreed with her and allowed her case to proceed. Wei Hong
Zheng, et. al., v. Wong, et. al., 2009 WL 2601313 (E.D.N.Y. August 24, 2009).
Title VII: national origin, color, Native American employee, American Indian Health Clinic; hostile work
environment defined, severe and pervasive, looking too white; employee misconduct, adverse
employment action; retaliation
Controlling law. Employees, supervisors and managers need to potentially derogatory talk. Though
the employer prevailed in this case, it cost them time, time effort and money to avoid liability. The
plaintiff was part Native American and so was the CEO. However, she was light-skinned and
occasionally taken as non-Indian; he was darker and often commented on color differences. This
case probably will be of more interest to defense attorneys, but human resources workers should also
read this case from the perspective of preventing situations such as this from becoming discrimination
claims in the first place.
Nettle v. Central Oklahoma American Indian Hospital, No. 08-6023 (10th Cir., 7/1/09); 2009 U.S. App.
LEXIS 14470,*;106 Fair Empl. Prac. Cas. (BNA) 1281; MoreLaw: /verdicts/case.asp?n=08-
6023&s=OK&d=40594.
In addition to the comments by the CEO, staff and patients also commented on her skin color, among
other things.
"Hostile work environment": Was defined in this case as:
- subjected to discriminatory intimidation, ridicule, and insults sufficiently severe or pervasive enough
to
- alter the conditions of employment and create an abusive working environment that no reasonable
employee would tolerate.
Further, our appellate court stated that it requires a "steady barrage" of offensive comments rather
than just sporadic insults. And this kind of treatment can be discriminatory even among employees of
the same general race or ethnicity. The appellate court ruled against the plaintiff because her
complaints were vague as to by whom and when this occurred, and it also found the comments were
neither severe nor persuasive.
Retaliation: She had problems and deficiencies at work that would have been a sufficient basis for an
adverse employment action in any event.
ERISA: equitable remedy, retroactive reinstatement of health coverage
Controlling law. The equitable remedy of retroactive reinstatement of benefits has been added to the
possible recovery of an employee who has lost out on benefits. ERISA had been interpreted to allow
only monetary recovery for retrospective remedies, i.e., nor going back and fixing the situation, but
rather allowing only monetary compensation. Prospective remedies allowed such things as
reinstatement. [Note: This ruling is in line with the historical evolution of equitable remedies in the
legal system generally, so it is not surprising. Phelan v. Wyoming Associated Builders, No. 08-8055
(10th Cir., 7/31/09); 2009 U.S.APP. LEXIS 17197; FindLaw: /scripts/getcase.pl?
court=10th&navby=year&year=2009-7.
FMLA: hysterectomy, six weeks leave, ignorant supervisor
Controlling law. This highly valued employee was discriminated against for requesting FMLA leave.
Her supervisor was ignorant of FMLA law. When the employee requested six weeks of leave to
recover from her operation, the supervisor said his sister recovers after a few days. When firing her
he said, "You are very talented and I know, when you are back in the pink of health, [you] will bounce
back and secure another job without even a glitch." Also, he told a prospective employer she left
because of illness. As for areas of improvement, he that she needed to take better care of herself.
This was clear evidence to the appellate court that a reasonable jury could find discrimination, and
probably because the employee would be missing too much work, which is exactly what the FMLA
prohibits. DeFreitas v. Horizon Investment Management Corp., No. 08-4034 (10th Cir., 8/14/09) ;
2009 U.S. App. LEXIS 18184; Internet link to Findlaw: /scripts/viewcase.pl?subject=Civil+Procedure.
LRMA: Labor Relations Management Act, hybrid combination with other claims, Memorandum of
Agreement (MOA), Collective Bargaining Agreement (CBA), Substance Abuse Policy (SAP)
Illustrative; not controlling law. In order to proceed a hybrid LRMA claim, an employee must establish
both claims by sufficient proof of both a violation of the LRMA, and in this case, also a breach of
contract of the CBA. At issue was the employee's failing the alcohol test in violation of the employer's
SAP and having his employment terminated. The union did not object to termination under the SAP
when testing positive confirmed violation of the SAP and by the union then entering onto an MOA it in
effect amended the CBA. That resolved the issue of breach of contract of the CBA, the employee had
no other breach of contract claim, and thus he had no basis for proceeding further under the LRMA
with his other claims. Summary judgment by the trial court was affirmed by the appellate court.
Nemsky v. ConocoPhillips Co., No. 08-4028 & No. 08-4130 (7th Cir., 8/3/09); 2009 U.S. App. LEXIS
17227;186 L.R.R.M. 3157.
NLRA: individual action as opposed to concerted job action, 10-day notice required
The NLRA required ten days notice by employees before beginning a job action, i.e., engaging in a
concerted action intended to force the hospital to rescind a new policy. If employees individually
refused overtime assignments, then the NLRA would not have been violated. However, the union took
the action on behalf of the employees without giving the required ten-day notice. SEIU v NLRB, No.
07-73028 (9th Cir., 7/27/09); Internet: /dlrcases.nsf/id/smgk-7umlmf/$File/seiuuhww.pdf.
Title VII: failure to promote, legitimate mistake, faulty performance ratings; but retaliation claim goes
to jury
Illustrative; not controlling law. This case involved two factors: (1) a charge of intentional
discrimination and (2) alleged retaliation for filing a claim. On the first factor, the employer did not
become aware that the information upon which the promotions were granted was defectiv until the
case was in the discovery portion of examining and exchanging information and documents, etc. The
courts agreed that the failure to promote was a mistake and not a pretext for discrimination, and
affirmed the dismissal of that claim. However, the timing of discharging the claimant-plaintiff, the
secon factor, was suspicious enough to allow it to be determined by a jury. Upshaw v. Ford Motor Co.,
No. 08-3246 (6th Cir., 8/14/09); 2009 U.S. App. LEXIS 18137; 2009 FED App. 0284P (6th Cir.);
Internet: /tp-080318191354/post-090814125123.shtml.
Title VII: hostile work environment, race, noose
Illustrative; not controlling law. Unlike EEOC v. Central Wholesalers, Inc., briefed a few weeks ago,
this case involving a noose displayed in the workplace was decided in favor of the employer because
of its prompt remedial action. The incident involved a noose displayed in the workplace area of an
African-American employee. Chronology:
- As soon as the employee's supervisor discovered a noose hanging in the work area, she had it
taken down and inquired as to who put it there.
- She began investigating, spoke with other shift leaders, attended a meeting with her shift where a
human resource representative emphasized that workplace harassment was intolerable, and asked
the employee every night whether he know who had hung the noose.
- The human resources representative conducted the employee meeting, met with the black
employee twice and offered a transfer the employee to another shift.
- On the other hand, the employee would not identify his harassers to his employer and did not report
any incidents beyond the initial display of the noose.
- Rather, he reported the harassers' identities and behavior to the local police department, which the
court found did not excuse failing to provide the necessary information so that his employer could
deal with the harassing event and appropriately respond.
One minor negative note was that for several hours the supervisor hung the noose on her office
bulletin board visible through a glass window [Note: Perhaps as a reminder of bad behavior?]
Anyway, though perhaps not a wise decision, the employee did not claim that was discrimination.
Porter v. Erie Foods Int'l., Inc., No. 08-1996 (7th Cir., 8/7/09); 2009 U.S. App. LEXIS 17843: Internet
link to Findlaw: /tp-080318191354/post-090811141334.shtml.
FMLA: discharge for cause, performance problems, termination while on leave, no need to reinstate
and then fire
Illustrative; not controlling law. Because of extensive destructive misbehavior in the workplace, that
was the motivating factor for termination rather than taking FMLA, and thus there was no FMLA
discrimination - the employee could be fired even though he was on FMLA leave and did not need to
be rehired and then terminated. The VP for information technology was completely wrong, and the
appellate court let him know that. Daugherty v. Wabash Center, No. 08-3104 (7th Cir., 8/14/09); 2009
U.S. App. LEXIS 18234; Internet link to Chicago Bar Association and Findlaw: /MYCB.
Benefits: vesting, nature and extent, changes
Illustrative; not controlling law. Lifetime benefits were ruled to be vested. However, the nature and
extent, or scope, of them may be changed depending on circumstances. The appellate court allowed
PPO health plan to be terminated and a managed care plan substituted. Because the contract and
other documents related to it did not cover this situation, the appellate court decided that the parties
to the benefits contract contemplated "reasonable modifications", and it sent the case back to the trial
court to determine what types of changes might be permissible. Reese v. CNH America, Nos. 08-
1234/1302/1912 (6th Cir., 7/27/09); 2009 U.S. App. LEXIS 16397; 2009 FED App. 0266P (6th Cir.).
Title VII: religion, hostile work environment, discrimination rather than constructive discharge
Illustrative; not controlling law. How far can expressions of religious beliefs go in the workplace before
they create a hostile work environment? The appellate court characterized this situation as a Title VII
hostile work environment case (as opposed to the trial court treating it as a constructive discharge
case). The employee's brother had committed suicide four years earlier:
- The owner's wife and company receptionist told the employee that:
- she could talk with the dead,
- daily told him she had been communicating with his brother who was suffering in Hell, and
- that torment would continue if the employee did not get right with God.
- Frequent requests by the employee to her to stop were ignored,
- she increased her insistence,
- he grew increasingly uncomfortable at work, and
- requests to the owner were rejected; he merely confirmed she could talk to the dead.
The appellate court sent the case back to the trial court to use the correct law when trying the case to
a jury. Winspear v. Community Dev., Inc., No. 08-2041 (8th Cir., 729/09); 2009 U.S. App. LEXIS
16718; Internet: courts.gov/opndir/09/07/082041P.pdf.
FLSA: individual personal liability of managers
Illustrative; not controlling law. A hotel and its managers were held liable for unpaid wages under the
FLSA and Nevada law berceuse all had an ownership interest in the company. The state claims were
dismissed, but the FLSA claims remained. The appellate court noted that the FLSA defines an
employer as anyone who acts "directly or indirectly in the interest of an employer in relation to an
employee." That definition is not limited to common law (as compared with statutory law, in the case
the federal FLSA). Accordingly, the circumstances of the entire economic activity may be examined,
and when individuals exercise control over the economic relationship, they are liable under the FLSA.
Boucher v. Shaw, Nos. 05-15454 and 05-15702 (7/27/09); 2009 U.S. App. LEXIS 16555; Internet:
courts.gov/opinions/view_subpage.php?pk_id=0000009810.
Handbook: enforceable contractual right(s)
Controlling law, but mostly limited to the specific facts and law of this case. However, the opinion
illustrates how promissory language in employment handbooks may create enforceable contractual
rights, no matter if the employer is in the private of public sector. There is not much new here in terms
of private employers, but New Mexico public employers are encouraged to read and understand this
case, discuss it thoroughly with their human resources and legal counsel, and then promptly examine
their handbooks, ordinances, policies and practices and related items to determine if any action is
needed. Beggs v. City of Portales, 2009-NMSC-023; Internet: /nmsu/lpext.dll/nmcases/1/27aea/699?
fn=document-frame.htm&f=templates&2.0.
FMLA, ADEA, ADA, ADAAA, Retaliation: proper documentation of misconduct and performance
deficiencies, non-discriminatory termination, granting legitimate requests for leave
Controlling law. This is another case with extensive details that ought to be read in its entirety. [Note:
Sometimes briefing an intricate case creates a risk of possibly omitting an important point.]
Essentially, this worker's problem was a sleep disorder resulting in falling asleep at work and also
performing poorly. Though the employer prevailed under the ADA as written prior to the ADEAAA, it
prevailed on many important issues because it properly documented her misconduct, poor
performance, efforts of her employer to warn, counsel and assist he to help herself succeed, including
granting legitimate request made by her for FMLA leave. Because the ADAAA expanded definitions
and coverage of physical or mental impairments, the result now might be different, so check with your
employment law attorney in this type of situation. Nealy v. Water District No. 1 of Johnson County,
Kansas, No. (10th Cir., 5/12/09); 2009 U.S. App. LEXIS 10246: Internet: /verdicts/case.asp?n=08-
3144&s=KS&d=40057.
Title VII: remedial action defense, summary judgment
Illustrative; not controlling law. Summary judgment is a procedural method by which a claim might be
dismissed to avoid trial. However, the evidence must be so clearly in favor of the moving party that no
reasonable jury could decide against that party, and the facts must be construed most favorably in
favor of the party against whom the motion is made. In this case, there were issues of fact that a jury
should hear, evaluate and decide on, and it might reasonably conclude that the employer failed to
respond in a timely and effective manner that would end the behavior that the African-American
female plaintiff claimed was discriminatory:
- September through November 2004 harassing conduct that included calling her "bitch" and nigger",
- co-worker with pornographic images on his computer screen and pornographic materials in his
cubicle,
-co-workers ignored her requests and conduct worsened, manager at first did nothing,
- in later response to another's complaint about the computer screen, the manager removed the
image and blocked Internet access, but the problem recurred when access was restored.
She was offered the opportunity to move to another department, but she objected that she was not
the offender. Further:
- when the company president walked through the area the offending material was gone, but returned
after he left.
-subsequently, another manager walked through the area and found pornographic material, and he
directed the offender to remove it and not to use profanity.
The president called a meting to review company policy and practices on profanity.
Subsequently, another co-worker subjected her to a barrage of sexual and racial insults, and blue
mop-headed dolls appeared hanging around the office.
She left work and filed EEOC charges. EEOC v. Central Wholesalers, Inc., Nos. 08-1181 and 08-2018
(4th Cir., 7/21/09); 2009 U.S. App. LEXIS 15987; Internet: courts.gov/opinion.pdf/081181.P.pdf.
FLSA: H-2B expenses
Illustrative; not controlling law. Relocation expenses of H-2B workers are not required to be
reimbursed under the Fair Labor Standards Act. Castellanos-Contreras v. Decatur Hotels, Inc., No.
60-4340 (5th Cir., 7/21/09); 2009 U.S. App. LEXIS 4796; 559 F.3d 332; 14 Wage & Hour Cas. 2d
(BNA) 897.
Tape recording: open cubicle, objective expectation of privacy, Federal Wiretap Act
Illustrative reasoning, but not binding authority. [Note: Trial court rulings bind only the parties to the
litigation, and no one else; only appellate decisions may bind others.] This interesting New Mexico
federal district trial court decision ruled that the Federal Wiretap Act did not apply. A plaintiff in a
sexual harassment case placed a tape recorder on the corner of his work station (an open cubicle
with sides that were significantly below ceiling level) in a shared work area. He did not inform co-
workers of this nor did he ask permission to record. Four feet away a female supervisor and a female
temporary worker were discussing him:
- "He doesn't want another woman... here," one of them said, and added that she was "tempted to go
with the female just because of that."
- The employer contended that:
- the recording violated the wiretap statute's prohibition on "the interception of oral communications"
and therefore was inadmissible evidence and
- also contended that the two women
had a reasonable expectation of privacy because they spoke in a "hushed tone" in the supervisor's
cubicle when no one else was present and, moreover, the supervisor said she was "not supposed to
talk about this," suggesting she had at least a subjective expectation of privacy.
This was found by the trial judge to be insufficient evidence that the persons recorded had taken
sufficient steps to protect the privacy of this conversation. Perraglio v. State of New Mexico, Dept. of
Game and Fish, (U.S.D.C.N.M., 7/8/09); CV 08-0351 WPL/RHS. [Note: Expectation of privacy was
objectively examined and did not depend on the subjective expectations of the two women.]
FMLA: not eligible, mistaken authorization, estoppel claim rejected
Illustrative; not controlling law. Check eligibility before authorizing FMLA leave in order to be certain
that a particular employee is eligible. This employee's claimed FMLA rights were denied after he
underwent elective surgery: when he returned to work his position had been eliminated and no other
positions were available, so his employment was terminated. He sued on the legal theory of equitable
estoppel, which requires (1) a definite misrepresentation about a material [legally significant] fact, (2)
reasonable reliance in that, and (3) detriment to that person. The employee's claim failed because,
eligible or not, he had already decided to have the surgery (and thus no detrimental reliance). So, the
employer won, but it could have saved the expense of litigation if it had checked the employee's
eligibility before telling he qualified for FMLA rights. Dombrowski v. Jay Dee Contractors, No. 08-1806
(6th Cir., 7/8/09); [Note: no citation available as of 7/22/09.].
Retaliation: pretext, bragging supervisor
Illustrative; not controlling law. Two male plaintiffs were allowed to take their retaliation claims to trial
because the bragging comments of a supervisor about their termination was the basis for a jury to
determine if the reason for termination was a pretext. Corbitt v. Home Depot USA, Inc., No. 08-12199
(11th Cir., 7/10/09); 2009 U.S. App. LEXIS 15547; Internet: courts.gov/opinions/ops/200812199.pdf.
Title VII: Faragher/Ellerth affirmative defense, failure to promptly report discrimination
Illustrative; not controlling law. The Faragher and Ellerth cases imposed a number of requirements on
employers to institute anti-discrimination policies and practices to prevent and cure workplace
discrimination, and one of the duties it required of victims was prompt reporting in order to allow the
employer to comply with anti-discrimination statues. Failing to take advantage of the protections
provided by the employer could bar a victim's claim, which is what happened in this case. Taylor v.
Solis, No. 07-5401 (D.C. Cir., 7/10/09); 2009 U.S. App. LEXIS 15319.
USERRA: leave for military reasons
Illustrative; not controlling law. Taking leave for military reasons is protected by the Uniformed
Services Employment and Reemployment Act. A postal employee was discharged for excessive
leave. Though the reason was stated as excessive absence, the motivating factor was absence while
on military duty. Erickson v. US Postal Service, 2008-3216 (Fed. Cir.,7/15/09); 2009 U.S. App. LEXIS
15573; Internet: courts.gov/opinions/08-3216.pdf.
ADA; reasonable accommodation, reassignment, position must be available
Controlling law. Neither the ADA nor the ADAAA require an employer to create position for a
disabled employee. As a note of caution, prevention usually being better than cure, this case appears
to be a narrow ruling, and under different circumstances might be prudent to at least engage in some
preliminary exploration by the employer and employee of some possibilities.
Iverson v. City of Shawnee, Kansas, No. 08-3264 (10th Cir., 6/17/09); 2009 U.S. App. LEXIS 12931;
Internet: /verdicts/case.asp?n=08-3264&s=KS&d=40474.
This employee injured her back and underwent surgery. Afterward she was tested for her ability to
return as an officer. Unfortunately, she did not physically qualify. No positions existed for which she
could have been transferred to. Alleging failure to accommodate, her claim was based on her
contention that she be given an open position as a detective or non-officer, but did not identify any
such available position. Our 10th Circuit Court of Appeals ruled that without such information, an
employee cannot subsequently claim failure of the employer to engage in interactive accommodation
process because there is no evidence that an interactive process would have probably identified a
reasonable accommodation.
Title VII: similarly situated, different supervisor safety infraction, leniency
Illustrative; not controlling law. "Similarly situated" and "nearly identical are not synonymous with
"identical. In this case an African-American train engineer was subjected to an adverse employment
action that was less lenient than that of a White engineer. Though the two supervisors were different,
the person ultimately deciding on the actions was the same person in each instance. Lee v. Kansas
City S. Ry. Co., No. 30444 (5th Cir., 6/30/09); 2009 U.S. App. LEXIS 14336; 106 Fair Empl. Prac.
Cas. (BNA) 1030.
NLRA/NLRB: email policy, selective enforcement
Illustrative; not controlling law. Cases from the District of Columbia Court of Appeals are not
controlling in our 10th circuit jurisdiction, but often area found to be persuasive authority of other
circuits, including our own. Twice, the employer took an adverse employment action against a union
president for using company email for matters related to union matters. The decisive factors were not
whether the activity was protected by the NLRA or a violation of company policy, but rather that the
adverse employment action was is was applied. Guard Publishing Co., d/b/a Register Guard v. NLRB,
No. 07-1528 Consolidated with 08-1006, 08-1013 (D.C. Cir., 7/7/09); 2009 U.S. App. LEXIS 14952.
Title VII: racial discrimination, conflict between disparate treatment disparate impact, "objective,
strong basis in evidence", "business necessity", "job-related", validity of testing and interviewing.
Controlling law. This opinion needs to be read carefully to grasp all of the details, but it essentially
comes down to this:
- Disparate treatment is intentional discrimination prohibited by Title VII.
- Disparate impact is unintentional treatment, policies or practices that in fact disproportionately have
an adverse effect or effects on persons protected by Title VII. This legal concept arose from case law
and some 20 years after passage of Title VII it was added to the Act.
Though the two concepts above seem in conflict, the United States Supreme Court ruled that the
primary purpose of Title VII is prevention of discrimination, and the mere concern or fear of the city of
New Haven that it might be sued for disparate treatment amounted to disparate treatment. Concern of
that nature is insufficient to allow disparate treatment; only if the city had " . . . an objective, strong
basis in evidence to find the tests inadequate . . ." might here have been a valid basis for concern of
disparate impact liability.
Once again, this opinion needs to be read carefully as well as discussed with legal and human
resources experts to ensure that screening, testing and other evaluations related to the essential
functions of the position(s) are essential because of valid business necessity. Studying both the
reasoning process of the employer and the reasoning of the U.S. Supreme court are helpful in
understanding situations that appear to put into conflict antidiscrimination restrictions on disparate
treatment and disparate impact. Though these factors may not apply to all situations, adhering to
them as a practical matter may be the safest way to avoid discrimination claims.
Ricci v. DeStefano, Nos. 07-1428 and 08-328, ____U.S ____, (USSC, 6/29/09); 2009 U.S. LEXIS
4945; Internet URL for syllabus with links to the full text of the majority and minority opinions:
http://supct.law.cornell.edu/supct/html/07-1428.ZS.html.
Civil liability, torts: contractors and subcontractors relations, tortious interference with contractual
relations (ICR), tortious interference with a prospective contractual relation (IPCR); at-will
employment, chain of command jumped
Controlling law: This case covers the torts of interference with contractual relations and with a
prospective contractual relation. Reading the entire opinion is recommended [which is one reason
why the Internet link is provided].
Zarr v. Washington Tru Solutions, L.L.C., No. 27,553 (NMCA, 4/1/09); 2009-NMCA-050 2009 N.M.
App. LEXIS 20; Internet: /nmcases/NMCA/2009/09ca-050.pdf.
The players were:
- a government contractor, Washington Tru Solutions, L.L.C. (WTS),
- its subcontractor, NCI Information Systems, Inc. (NCI), and
- Zarr, an NCI employee.
Zarr oversaw NCI's expenditures and budget forecasts. Haug was WTC's chief executive at the DOE
project site. Zarr and Haug apparently had a personality conflict and differed over NCI's budget
projections. Rather than attempt to work things out between WTS and NCI, Zarr jumped the chain of
command and expressed her concerns directly with DOE personnel. [Note: Almost invariably a bad
approach unless there is an emergency of significant proportions.]. Zarr having bypassed Haug, and
he asked that she be removed form the project. Though Zarr's performance was satisfactory with
NCI, she was terminated because NCI had no other positions for her.
At this point, reading the details of the applicable law becomes important for employers who either
have or may have this kind of problem. In the interest of prevention and training, for any employer
who might have this kind of situation arise it would be wise to review this case with legal counsel.
Prevention and training almost always is preferable to attempting to fix a problem after it becomes a
legal claim.
Definitions of the torts of interference with contractual relations and of interference with a prospective
contractual relation are stated in the opinion and are discussed in the context of the details of the
case.
Title VII: gender, sex, alleged subjective interview; value of adequate uniform interviewing process;
rejection of statistical evidence
Controlling law: This gender discrimination claim failed because the applicant for promotion was
shown to have been less qualified for the position than other applicants, including another female,
plus the application process was found to be reasonably objective, even in the problem-solving
discussion segment.
Turner v. Public Service Co. of Colorado, No. 07-1396 (10th Cir., 4/28/09); 2009 U.S. App. LEXIS
8970 (10th Cir. 2009); 2009 WL 1132126 (10th Cir. 2009).
This was Turner's third application for the position. She claimed bias or prejudice because the
interview panel was all male. In favor of the employers were these factors:
- a standard written test to measure mechanical aptitude (essential to the job) for first level screening
- 26 passed,
- résumés screened for predetermined essential criteria such as relevant work experience and skills
essential to the position for second level screening - 17 passed,
- and finally an interview panel with four PSCC employees (applicant admitted she had not performed
well) - Turner was one of two women passed.
- the other woman was one of the six applicants offered a position, but she declined for personal
reasons and another man was hired.
Additionally:
- Turner scored only 48.5 aggregate points compared with the other woman's 63.5.
- subsequently other men and women were hired after the same type of screening and interviewing
process.
- Turner could not produce evidence of how men were favored over women by the process, and
- her evidence of a gender harassment verdict over 20 years before was too old to be relevant, plus
those managers were no longer with the company.
Office of Federal Contract Compliance (OFCCP): government contractors, hospital, HMO contract,
affirmative action, federal reporting
Illustrative; not controlling law. A May 29, 2009 ruling of the Department of Labor's Administrative
Review Board (ARB) held that three hospitals in Pittsburgh receiving payments from an HMO in the
course of providing medical services to federal government employees are covered federal
subcontractors. Healthcare employers need to check with their legal counsel to determine if they
involuntarily have become "federal contractors", and thus subject to affirmative action requirements,
plus a wide range of reporting, record keeping and other obligations. OFCCP v. UPMC Braddock,
2007-OFC-1 (ARB May 29, 2009); ; Internet article: http://www.d/tags/ofccp-v-upmc-braddock/.
ADEA: evidence, disparate treatment, direct discrimination, mixed motives, “reasonable factor(s)
other than age” (RFOA), burden of going forward, burden of proof, no shifting
WARNING: This case may be legislatively overruled by the Protecting Older Workers Against
Discrimination Act (POWADA) working its way through congress as of this note on 9/8/09.
Also, be aware that in February 2010 the DOL issued proposed regulations on the definition of
“reasonable factor other than age” (RFOA): http://edocket.access.gpo.gov/2010/2010-3126.htm.
Controlling law: Mixed motives cases involve an adverse employment action based on more than
one motive. ADEA cases involving disparate treatment now require that the employee must establish
by a preponderance of evidence (i.e., more likely than not) that age was the one motivating factor of
the decision. As a legal and practical matter, the burden of persuasion/proof does not shift to the
employer to show that it would have taken the same action regardless of age. This is a major change
from other discrimination cases that allow proof of disparate treatment to be that one of the
classifications or categories protected by anti-discrimination statutes was a motivating factor in an
adverse employment action. Gross v. FBL Fin. Servs., Inc., No. 08-441, ____ U.S. ____, 6/19/09);
2009 U.S. LEXIS 4535; Internet: /scripts/getcase.pl?court=US&vol=000&invol=08-441.
Title VII: team leaders not management, knowledge of harassment, insufficient for strict liability
Illustrative; not controlling law. An employer cannot be held to know of harassment for Title VII
purposes unless the person(s) with knowledge were actually managers. The appellate court stated
that such knowledge may be imputed to an employer if it is "important to the employee's general
managerial duties" or if "the employee is specifically employed to deal with sexual harassment." In
this case, the two team leaders overseeing the production line work at a paper manufacturing plant
did not qualify as "management level" employees. Further, the appellate court stated, "We clarify that
mere supervisory authority over the performance of work assignments by other co-workers is not, by
itself, sufficient to qualify an employee for management level status." Here, these team leaders
merely were "employed to keep the machines working" and had n responsibility to "discover or to act
upon knowledge or rumors of sexual harassment." Huston v. Procter & Gamble Paper Prods. Corp.,
No. 07-2799 (6/8/09); 2009 U.S. App. LEXIS 12437; Internet: /scripts/viewcase.pl?
court=0&subject=0&casenum=&party=Procter%20%26%20Gamble&date1=&date3=&date2=&search=S
Title VII: correction notice after EEOC claim filed, timing not suspicious, lack of knowledge
Illustrative; not controlling law. Seven months after an EEOC chare was filed, the employer gave the
employee a "Correction Notice" threatening immediate discharge unless the employee remedied the
identified problems: the employee's manager claimed that the employee was spreading rumors about
other employees and engaging in harassing behavior, and it related to events months after the EEOC
claim was filed. The appellate court held that anti-discrimination laws do not insulate employees from
discipline for violating work rules or engaging in disruptive behavior. Also and significantly, the
manager who complained about the employee's conduct had no knowledge of the employee's EEOC
claim at the time he made the complaint. Littleton v. Pilot Travel Ctrs., LLC, No. 08-1221 (8th Cir.,
6/4/09); 2009 U.S. App. LEXIS 11959; Internet: courts.gov/opndir/09/06/081221P.pdf.
ADA: medication combination, positive test results; accommodation, interactive process, refusal to
retest; not qualifying disability
Illustrative; not controlling law. Employers requiring drug testing for employment purposes should
consider having a medical review officer to assess claims by applicants or employees that
medications may caused false positive results. Making decisions in such situations without expert
assistance can cause problem. Medical review officers, physicians who are trained to evaluate drug
test results, can provide the employer with assurance should a lawsuit be filed against the employer
in connection with a positive test result.
An employment applicant tested positive for phencyclidine (PCP), and she was rejected. Retesting
was refused by the detention center, so the applicant retested at her own expense and the result was
negative. She requested a meeting with a detention center representative to
- verify the validity of the first test,
- accept the second test, or
- make a similar accommodation,
but that was refused. She contended that the combination of medications she was taking for sleep
epilepsy and allergies had produced the false positive result. The detention center refused to retest
and she was not hired. However, it suggested she reapply later. When she did she was refused an
interview. Though the center suggested she later reapply, which she did, she was neither interviewed
nor hired. Her ADA claim alleged failure to engage in an interactive accommodation process. The
center contended it had not violated the ADA. Though the court "substantially agree[d]" with the
detention center, it also found that the applicant failed to show that her sleep epilepsy qualified as a
disability under the ADA, that is, a "physical or mental impairment that substantially limits one or more
of the major life activities of an individual." While acknowledging that sleeping is a major life activity,
the rejected the claim that her sleep epilepsy substantially limited her sleeping because she failed to
demonstrate that her seizures lasted for more than a few minutes or that they prevented her from
going back to sleep in a short period of time. Further, she admitted that "with her medication, [she
only] suffer[ed] from night seizures one to three times a month." Thus, "even if Ozee had established
that her failure to pass the preemployment drug test was a result of her sleep epilepsy, she has failed
to state a prima facie case of discrimination under the ADA because no reasonable jury could
conclude that her epilepsy 'significantly restrict[s]' her sleeping vis-a-vis that of 'an average person.'"
Ozee v. Henderson County, 2009 U.S. Dist. LEXIS 37114 (W.D. Ky., 5/1/09).
USERRA: incompetent civilian work performance, fraud, sufficient documentation, no discrimination
Illustrative; not controlling law. Sufficient documentation of a military reservists dangerously deficient
civilian work performance and fraudulent representation of his academic credentials enabled his
employer to defeat his discrimination claim. Safety was a concern of this court because the employee
worked with aircraft engine design and manufacturing. Madden v. Rolls Royce Corporation, No. 08-
1923, (7th Cir., (4/29/09); 563 F.3d 636; 2009 U.S. App. LEXIS 9018; 186 L.R.R.M. 2443; 92 Empl.
Prac. Dec. (CCH) P43,552.
ADA: chronic fatigue syndrome, requested accommodation, disability issue, pretext; summary
judgment reversed for trial
Illustrative; not controlling law. Finding that the employee's condition was "intermittent" and her
impairments were "short-lived, non-permanent, and non-severe," the lower court misapplied the legal
standards for determining the duration, permanency, and severity of a chronic condition under the
ADA. The relevant time period for assessing disability is at the time of the adverse employment
action, and the employee's evidence suggested her CFS symptoms were severe enough to constitute
a disability under the ADA at the time she was allegedly discharged for having a disability and for
requesting an accommodation. Finding that a jury could reasonably find the employee was
substantially limited in undisputedly major life activities of caring for oneself, sleeping, and thinking,
the case will proceed to a jury to determine if that is so. Also, the jury is to consider genuine issues of
material fact as to whether the employer failed to accommodate the employee and unlawfully
discharged her. At issue there was whether her answer "no" on her job application by falsely
answering a question about whether she experienced excessive fatigue associated with work or
exercise was a material misrepresentation because her CFS-induced fatigue did not arise from work
or exercise. The employer allegedly had "first formed an intention to discharge" the employee
because of her disability and "only afterwards developed the purely pretextual reason" to do so.
EEOC v. Chevron Phillips Chemical Co., No. 07-20661 (5th Cir., 6/5/09); 2009 U.S. App. LEXIS
12148; Internet: courts.gov/opinions/pub/07/07-20661-CV0.wpd.pdf.
USERRA: national guard, preferential scheduling
Illustrative; not controlling law. USERRA does not cover weekend duty meetings, and airline work
schedules need not be preferentially adjusted for guard members. Crews v. City of Mt. Vernon, No.
08-2435 (7th Cir., 6/2/09); 2009 U.S. App. LEXIS 11718; Internet: /verdicts/case.asp?n=08-
2435&s=IL&d=40286.
Title VII: deficient performance, documentation, effective policies, prompt response; retaliation, cat's
paw; allegations of sexual harassment
Controlling law. Properly warning, counseling and documenting employees of deficient performance
is essential to successfully defending discrimination clams, and that allowed this employer to win. It
had adequate anti-harassment policies and training, the female employee failed to effectively and
timely avail herself of employer's prevention and reporting procedures, and the employer's prompt
response, investigation and adverse employment action against the perpetrator was sufficient
(separation of him from her, additional training required for him and reduction of his salary).
Evaluations of her deficient performance were properly addressed and ample opportunities were
provided for her to improve. Termination of her employment was based on her deficiencies and had
nothing to do with the harassment incidents. Pinkerton v. Colorado Department of Transportation, 07-
1494 (10th Cir., 4/16/09), 2009 App. LEXIS 7890; 563 F.3d 1052; 105 Fair Empl. Prac. Cas. (BNA)
1765; Internet: /verdicts/case.asp?n=07-1494&s=CO&d=39771.
Rehabilitation Act/ADA/ADAAA: Under the ADAAA, which amends both the Rehabilitation Act and the
ADA, this "regarding" case involving hearing aids probably would have turned out differently because
corrective devices and/or medications cannot now be considered. For information purposes, this is a
controlling case for those acts before the ADAAA went into effect was Detterline v. Salazar, 2009 U.S.
App. LEXIS 7489; Internet: http://ca10.washburnlaw.edu/cases/2009/04/07-1443.pdf.
FMLA: retaliation, pretext
Illustrative; not controlling law. A trial court verdict in favor of an employee whose health insurance
was retroactively canceled was affirmed on appeal because the action and timing was sufficient
evidence of reprisal, and its stated reason was found to be a pretext for discrimination because;
among other things, the timing was suspicious. Ryl-Kuchar v. Care Centers, Inc., No. 08-2688 & 08-
2823 (7th Cir., 5/11/09); 2009 U.S. App. LEXIS 10028; Internet: /search?client=firefox-
a&rls=org.mozilla%3Aen-US%3Aofficial&channel=s&hl=en&q=%22Ryl-
Kuchar+v.+Care+Centers%2C+Inc.%22&btnG=Google+Search.
Union: reprisal, posting names and legal expenses
Illustrative; not controlling law. This case was returned for trial. Retaliation charges by five African-
American current and former union members were reinstated. They claimed retaliation based on the
union practice of disclosing EEOC claims with postings of names discrimination claimants and
posting the legal bills related to claims. The union contended this had been a practice for a long time.
The appellate court found that though that was not a per se a Title VII violation, there was evidence
raising a possible reasonable inference that the union was aware of a negative impact on the
members based on the listing and the reading of their names and associated costs during meetings.
Franklin v. Sheet Metal Workers, Local 2, No. 08-2707 (8th Cir., 5/1/09); 2009 U.S. App. LEXIS
10291; Internet: courts.gov/opndir/09/05/082707P.pdf.
Drug testing: urine, direct observation, DOT regulation, Administrative Procedure Act and the Fourth
Amendment
Illustrative; not controlling law. Regulations of the Department of Transportation were upheld: follow-
up drug tests were required to be conducted under direct observation. The appellate court found that
the DOT had "considered justification" in concluding that there been "growth of an industry devoted to
circumventing drug tests, coupled with returning employees' higher rate of drug use and heightened
motivation to cheat, presented an elevated risk of cheating on return-to-duty and follow-up tests."
Individual rights of freedom from intrusive searches had to be balanced against valid safety interests,
and the appellate court ruled the DOT regulations did not violate the Fourth amendment protection
against unreasonable searches. BNSF Railway v. US Dep't of Transportation, No. 08-1264
Consolidated with 08-1276, 08-1338, 08-1342, 08-1361, 08-1362, 08-1378 (DC Cir,. 5/15/09); 2009
U.S. App. LEXIS 10288; Internet:. http://transit-
safety.volpe.dot.gov/DrugAndAlcohol/Regulations/Regulations/MandatoryObservation/08-1264-
1181010.pdf.
Title VII: invidious sexual stereotyping, snap judgment, failure to investigate
Illustrative; not controlling law. A male employee accused of and forced to quit based on an allegation
of sexual harassment made out a prima facie (legally sufficient basic) case for discrimination. His
supervisor did not investigate before taking the adverse employment action because "you probably
did what she said you did because you're male and nobody would believe you anyway." Sassaman v.
Gamache, Dutchess County Bd. of Elections and Dutchess County, 07-2721-cv (2nd Cir., 5/22/09);
2009 U.S. App. LEXIS 10937; Internet: /search?client=firefox-a&rls=org.mozilla%3Aen-
US%3Aofficial&channel=s&hl=en&q=%22Sassaman+v.+Gamache%22&btnG=Google+Search.
Title VII: sexually hostile work environment
Illustrative; not controlling law. Though not a target in a highly charged environment abusive in
general to women, that corrosive atmosphere was sufficient to support the discrimination claims of a
small group of women subjected to that unchecked behavior in a predominantly male workplace.
Gallagher v. C.H. Robinson Worldwide, Inc., No. 08-3337 (6th Cir., 5/22/09); 2009 U.S. App. LEXIS
10933; 2009 FED App. 0184P (6th Cir.); Internet: courts.gov/opinions.pdf/09a0184p-06.pdf.
Title VII, Equal Pay Act: unexplained discrepancy and difference
Illustrative; not controlling law. The employer was unable to satisfactorily explain the $21,000
difference between what her employer had been paying her and what her male replacement had
been offered. Though the employer contended it had to consider the market value of the skills of the
male applicant, the appellate court stated the employer had to prove that the difference was based on
factors other than gender. Drum v. Leeson Elec. Corp., No. 08-1678 (8th Cir., 5/15/09); 2009 U.S.
App. LEXIS 10274; 106 Fair Empl. Prac. Cas. (BNA) 309; Internet:
ADA: epilepsy, regarded, essential functions, able to perform without accommodation; interplay of
ADA and SSD
Illustrative; not controlling law. ADA and Social Security Disability standards of proof are different:
- SSD: " . . . considering his age, education, work experience, and residual functional capacity, there
[were] not a significant number of jobs in the national economy that he could perform.
- ADA: Though he was found to be disabled for Social Security purposes, his condition changed over
time and the appellate court found he was not disabled prior to his discharge; and even though ADA
"regarded as" employees have no right to reasonable accommodations, the trial court also was
correct in allowing the salesperson to introduce evidence that he was denied an accommodation
during the period in which he was disabled because the company "vigorously contend[ed]" that he
was actually disabled and unable to perform his job.
Finan v. Good Earth Tools, Inc., No. 08-2221 (8th Cir., 5/19/09); 2009 U.S. App. LEXIS 10470;
Internet: courts.gov/opndir/09/05/082221P.pdf.
Cancer: fear of, jury instruction
The United States Supreme Court reversed a state court decision in a Federal Employers Liability Act
(FELA) claim because the trial court failed to properly instruct the jury on how to deal with a worker's
fear of cancer. It cited its 2003 asbestosis decision in Norfolk & Western R. Co. v. Ayers that stated
though an asbestosis sufferer may seek compensation for his fear of cancer "as an element of his
asbestosis-related pain and suffering damages," in order to do so the plaintiff must prove "that his
alleged fear is genuine and serious." The case was reversed and remanded (i.e., returned) for trial
with this instruction to be added to those to be given to the jury. CSX Transportation v. Hensley, No.
08-1034 (USSC, 6/1/09); 2009 U.S. LEXIS 3974; Internet: http://supct.law.cornell.edu/supct/html/08-
1034.ZPC.html.
FLSA: bonus-pay plan, salary-basis test, improper deductions
Illustrative; not controlling law. Read this entire case for the details of how one court ruled to properly
handle this type of situation. Baden-Winterwood v. Life Time Fitness Inc., Nos. 07-4437/4438 (6th
Cir., 5/19/09); 2009 U.S. App. LEXIS 10461; 2009 FED App. 0177P (6th Cir.); Internet:
/scripts/getcase.pl?court=6th&navby=title&v1=baden.
FLSA: overtime, nature of necessary knowledge
Illustrative; not controlling law. The FLSA definition of constructive knowledge is whether the employer
should have known of uncompensated overtime, i.e., in the overtime context it is whether the county
"should have known," not whether it could have known. Thus, the appellate court concluded it would
not be reasonable to require that the county search through non-payroll records (in this case, the
county tracked the duty-status of an officer through a program known as Computer Aided Dispatch) to
determine whether its employees were working beyond their scheduled hours. Hertz v. Woodbury
County, Iowa, May 28, 2009); ; Internet: courts.gov/opndir/09/05/082612P.pdf.
FLSA: exempt status, indispensable employee
Illustrative; not controlling law. Indispensability to the employer's business was not the determining
factor of whether the employee's position is directly related to management policies or general
business operations, and thus exempt from overtime status under the FLSA. An employee's
exemption "is based on the type of work performed by that individual, not whether a business practice
or applicable law require a particular position to exist." Desmond v. PNGI Charles Town Gaming, LLC,
No. 08-1216 (4th Cir., 4/30/09); 2009 U.S. App. LEXIS 9113; Internet:
courts.gov/opinion.pdf/081216.P.pdf.
Title VII: gender discrimination, transgender applicant
Illustrative; not controlling law - however, the NM Human Relations Act (NMHRA) applies to
employers with four or more employers, and thus in NM the employee probably would have prevailed
in our jurisdiction. Paraphrasing the applicable portions of the NMHRA, these kinds of discriminations
are prohibited:
- sexual orientation (= heterosexuality, homosexuality or bisexuality - either actual or perceived), and
- gender identity (= person's self-perception or perception by others as identity as male/female based

on appearance, behavior or physical characteristics either in accord with or opposed to physical
anatomy, chromosomal sex, or birth sex).
As to federal law, for the past few years rumors have circulated that Congress and federal courts
were also headed in the direction of protecting sexuality status at any stage or of any type. In this
federal case, the discrimination was based on sexual stereotypes relating to transgender change, and
the plaintiff's claim survived summary judgment and can proceed to trial. Schroer v. Billington,
(U.S.D.C., 4/28/09); Internet: /law/2008FPFEB/schroer-billington.html.
Title VII: supervisor, strict liability of employer
Illustrative unpublished opinion; not controlling law, but in accordance with many federal appellate
circuits. This is a good reminder that the issue of whether an employee is a supervisor is important
because an employer is strictly liable for a hostile work environment when the conduct of the
supervisor causes that problem and it results in a tangible adverse employment action (such as
demotion or termination of employment). For example, Joens v. John Morrell & Co., 354 F.3d 938,
940 (8th Cir. 2004) ("[T]o be a supervisor, the alleged harasser must have had the power…to take
tangible employment action against the victim, such as the authority to hire, fire, promote, or reassign
to significantly different duties."); Hall v. Bodine Elec. Co., 276 F.3d 345, 355 (7th Cir. 2002); Mikels v.
City of Durham, 183 F.3d 323, 333-34 (4th Cir. 1999. In this Wooten case, the offending employee
was found not to be a supervisor because he had only limited powers: "authority…to assign the
[plaintiffs'] deliveries and make decisions regarding their workload." That was ruled to be insufficient
to characterize him as a supervisor, particularly in view of company testimony that the alleged
supervisor had no power to discipline or evaluate the performance of the plaintiff. Wooten v. Federal
Express Corp., No. 07-10555 (5th Cir., 4/709); 2009 U.S. App. LEXIS 7417.
Title VII: gender, violation of company policy, internal investigation, employer's honest belief,
McDonnell Douglas, no pretext
Illustrative; not controlling law. As you will recall, the McDonnell Douglas shifts the burden analyzing
evidence in a case:
- the employee has the initial burden to come forward with a prima facie case of discrimination,
- then employer must show a legitimate business reason for its actions; and finally
- the ultimate burden is on the employee to prove that the employer's reason is a pretext for
discriminatory motive.
It is important to always remember the employee always has the ultimate burden of proving
discrimination. And in cases such as this one, the essential issue is whether the employer honestly
believed its adverse employment action was appropriate and that it made a "reasonably informed and
considered decision" before taking it. Home Depot's Operations Assistant Manager at a Nashville
store allowed a co-worker to use her password-protected user ID to modify a special order
transaction for Sybrandt, and Sybrandt also subsequently entered computerized "notes" on the
transaction, indicating that she wanted to cancel part of the order and receive a refund. Both actions
of those actions violated the company's "no-self-serve" policy. She claimed gender discrimination
when she was replaced by a male employee. Both the trial and appellate court found the employer
had shown there was no pretext, and the summary judgment in favor of the employer was affirmed.
Sybrandt v. Home Depot, U.S.A., Inc., No. 08-5598 (6th Cir., 3/26/09); 560 F.3d 553; 2009 U.S. App.
LEXIS 6401; 2009 FED App. 0117P (6th Cir.); 105 Fair Empl. Prac. Cas. (BNA) 1470; Internet:
courts.gov/opinions.pdf/09a0117p-06.pdf.
Insurance: intentional acts, coverage denied
Illustrative; not controlling law. Insurance is for accidents, i.e., unforeseeable events. Coverage was
denied because of the employer's mistreatment of an employee who allegedly had ruptured his
quadriceps while descending stairs at work:
- the company president witnessed the injury,
- the employee obviously was in agony and unable to walk unaided,
- he was "forcibly transported" . . . "against his will" to a scheduled business meeting where he
endured excruciating pain,
- several hours later he was finally transported to a hospital and underwent surgery and received
post-surgical care for five days,
- the president called him at the hospital "at least twice" to "hasten his discharge", and
- upon returning to work, the president accused him of "milking" his injuries and shortly thereafter fired
him.
Thus, the employee's claims for FMLA retaliation, false imprisonment, and intentional infliction of
emotional distress did not trigger coverage under the employer's insurance policies providing for
costs of defending the claim and for indemnity coverage for damages for bodily injury bodily injury
caused by an "accident,". Lucterhand v. Granite Microsystems, Inc., No. 07-2719 (7th Cir., 4/28/09);
2009 U.S. App. LEXIS 8971; Internet: courts.gov/tmp/N80NMPER.pdf.
[Note: Also, in NM an injury incurred in the course and scope and arising out of employment is
covered the NM Workers' Compensation Act, but in a case such as this the behavior of the employer
possibly could have been ruled to be both (1) an injury covered the Act for the injuries on the job, plus
(2) also be of a nature to deny the employer the exclusive remedies of the Act for the subsequent
injuries, aggravation and misconduct. The Act essentially limits to medical care related to the injury
and a limited recovery for loss of earning power, whereas discrimination and personal injury damages
recoveries usually can be far more extensive and expensive.]
Stored Communications Act (SCA): former employee, personal email account; no proof of actual
damages, minimum statutory damages
Illustrative; not controlling law. Be aware of this law that can hold snoopers liable for accessing a
person's email account(s) for unauthorized reasons. Van Alstyne v. Electronic Scriptorium Limited,
No. 07-1892, No. 07-1899 (4th Cir., (3/18/09); 560 F.3d 199; 2009 U.S. App. LEXIS 5548; 28 I.E.R.
Cas. (BNA) 1441; Internet: courts.gov/opinion.pdf/071892.P.pdf.; Stored Communications Act, 18
U.S.C.A 2701-2712, http://www4.law.cornell.edu/uscode/18/usc_sup_01_18_10_I_20_121.html.
Evidence: witness, expertise, Rule 702
Illustrative; not controlling law. Expert testimony is required to establish an estimate of lost future
earnings and benefits because that requires specialized or technical knowledge. In this case the trial
judge erred by allowing the employee to testify about those matters. It was not error to allow her to
testify about past losses because those matters are within her personal knowledge.
Donlin v. Philips Lighting, No. America Corp., No. 07-4060, (3rd Cir., 4/23/09); 2009 U.S. App. LEXIS
8408.
NLRB: merging two union groups into on unit; core business decision; no retroactive decision
Illustrative; not controlling law. Usually an employer must negotiate about the effects of merging
bargaining units. However, in this case the CWA was found to have been able to adequately
represent the interests of the IBEW employees and deliver adequate results; the IBEW was unable to
demonstrate that as a result of the merger their employees ended up in an inferior position.
International Brotherhood of Electrical Workers, Local 21 v. NLRB, (9th Cir., 4/20/09); [Note: No
additional citation available as of 4/30/09].
ADA, FMLA: interrelation of acts, fitness-for-duty examination
Illustrative; not controlling law. Employment of an emergency dispatcher was terminated after a
fitness-for-duty examination indicated that she may not be able to perform the essential functions of
her position; her own statements supported what was reported by the examining psychiatrist and her
own physician. She was unable to show she was entitled to FMLA leave; her FMLA request and
accompanying medical certification stated that her sleep, energy level, motivation, and ability to
concentrate were intermittently impaired. She claimed her ADA and FMLA rights were violated by
disciplining her for claiming FMLA leave, and she claimed she was regarded as disabled. The trial
court found no evidence that the city regarded her as disabled. There is no FMLA violation when, in
accordance with the ADA, an employer requires an employee to be examined to see if the employee
is fit for duty. Wisbey v City of Lincoln, (U.S.D.C.Neb, 4/10/09); [Note: No additional citation available
as of 4/30/09, but may be available to those with Westlaw accounts].
Title VII: national origin, retaliation; dissimilar treatment, pretext, failure to investigate, "speak
American"
Controlling law. Summary judgment in the trial court was reversed by our federal circuit appellate
court because a reasonable jury could find that the employee was discriminated against. The problem
here appeared to be insufficient training of managers and supervisors, as well as the failure of the
employer to take prompt remedial action at the time the discrimination complaint were made. It also
was detrimental to the employer's case that in a meeting the employee's supervisor told the
employee's interpreter to be quite and told the employee to "speak American".
Avila v. Jostens, Inc., No. 08-3167 (10th Cir., 3/19/09);2009 U.S. App. LEXIS 6283; 105 Fair Empl.
Prac. Cas. (BNA) 1501; Internet: http://ca10.washburnlaw.edu/cases/2009/03/08-3167.pdf.
Discrimination: Evidence showed that a reasonable jury could find that Avila had been treated
differently from other employees who had made similar errors that Avila was accused of. Testimony of
his coworkers indicated that some of the alleged performance problems were either groundless or not
as bad as those of other workers who were not disciplined as severely as Avila. Important to the
appellate court were these factors:
- Jostens failed to investigate the union's claims of discrimination by his supervisor.
- Corrective and adverse employment actions were inconsistent with usual procedures of the
employer.
- Allegations against him from an unnamed employee were "vague and entirely subjective".
Retaliation: Immediately after the union filed its discrimination grievance, Avila was transferred to
another supervisor despite evidence that his former supervisor of four years testified he did "great
work.
Title VII: sexual attack, unwelcome behavior, gender, severe or pervasive hostile work environment,
manager; constructive discharge; employer's negligence
Controlling law: This complex case needs to be read in its entirety because "briefing" won't cover all
of the important factors (i.e., to be brief would be incomplete).
Chapman v. Carmike Cinemas, No. 08-4043 (10th Cir., 1/12/09); 2009 U.S.App. LEXIS 423; 105 Fair
Empl. Prac. Cas. (BNA) 624; Internet: http://ca10.washburnlaw.edu/cases/2009/01/08-4043.pdf.
Harassment: Our 10th Circuit Court of Appeals found that she had proved an initial sexual
harassment case:
1) subjected to unwelcome sexual behavior,
2) harassment was based on gender, and
3) it was sufficiently severe or pervasive to create an abusively hostile work environment [that no
reasonable employee should be subjected to].
Next, and importantly, because the harasser was a supervisor, the employer would be automatically
liable if it was unable to show these two elements of an affirmative defense:
1) it exercised reasonable care to prevent and correct any sexually harassing behavior, and
2) the victim unreasonably failed to take advantage of any preventive or corrective procedures,
measure or opportunities provided by the employer.
The employer met that first element of by showing it had distributed and conducted training on its
policy prohibiting such harassment. However, its affirmative defense claim failed on the second
element because the appellate court found that the victim had immediately reported the attack to the
employer through appropriate channels.
This is where things became complicated. The trial court ruled that a single incident of sexual
harassment was insufficient to impose liability if the company immediately took prompt remedial
action to remove the victim from further harassment by the supervisor (based on 8th Circuit law,
which is not our circuit). The appellate court rejected that ruling and stated that our 10th Circuit would
continue to require as it had in the past by requiring that "the employer prove that the employee did
not promptly report the single-incident before the employer may avail itself of the affirmative defense."
Negligence: Previously she had reported that her supervisor had stated that when she broke up with
her boyfriend "me and you are going to . . . XXXX [i.e., have sex]", to which the general manager
replied, ". . . that's just the way Walter . . . is." The court assumed that her allegations of a raunchy
workplace (constant sexual jokes, comments, conversations, etc. after the attack were sufficient to
meet the minimum requirement of a sexual harassment claim. Unfortunately for her, the court
disallowed her claim because she complained to those who were creating the hostile work
environment, rather than to alternative management to take advantage of the company reporting
policies and procedures.
Constructive discharge: This legal term means that conditions must become so intolerable for a
reasonable person that the only thing left is to quit. This claim failed because she failed to raise this
allegation when she filed her claim with the administrative screening agency, and it was too late to
raise it in court.
Arbitration: bad faith, sanction, award of fees, inherent authority
Illustrative; not controlling law. How widespread this kind of ruling might be is questionable. However,
this New York federal appellate court case upheld an award of attorney fees or arbitrator fees
because of a party's failure to arbitrate in good faith. Usually, each party pays their own costs, but this
case illustrates an important exception.
Reliastar Life Ins Co. of New York v. EMC Nat'l. Life Co., No. 07-0828-cv (2nd Cir., 4/9/09); 2009 U.S.
App. LEXIS 764.
ADA: ovarian cancer, uncertain return date, possible accommodations, essential functions
Illustrative; not controlling law. The return to work date of a store manager diagnosed with ovarian
cancer was uncertain. Inquiry about possible accommodations made by her area manager was
answered that she "did not know how long she would be out." Her claim of discriminatory termination
of her employment failed in the federal appellate court, which noted "it is axiomatic that a person who
cannot perform any of the functions of a job . . . cannot . . . be considered 'otherwise qualified'."
Peyton v. Fred's Stores of Arkansas, Inc., No. 08-2346 (8th Cir., 4/15/092009 U.S. App. LEXIS 8121);
Internet: courts.gov/opndir/09/04/082346P.pdf.
Attorney-client privilege; work-product privilege: email, denied; must disclose and provide copy
Illustrative; not controlling law. Attorney-client privileged communications and/or claims of attorney
work-product usually are protected by the courts, but carelessness can defeat such a claim. In the
course of an internal FLSA compliance review, the attorney conducting it noted that IT employees
were erroneously classified as as a group as exempt from FLSA overtime (such determinations of
questionable group classifications ought to be made on an individual basis). The email was written in
part by the company's assistant general counsel, who recommended that certain IT employees be
reclassified from exempt to nonexempt pursuant to an internal FLSA audit. Failing to clearly state that
the email was an attorney-client privileged confidential communication or work-product defeated the
employer's claim that the email should not be disclosed to the plaintiff employees. Clarke v. J.P.
Morgan Chase & Co., 08 Civ. 02400 (CM) (DF) (S.D.N.Y., 4/10/09).
FLSA: overtime, "sovereign immunity", DOL may enter Indian land to inspect book and enforce
Illustrative; not controlling law. Indian "sovereign immunity" is a generality with some restrictions, so
as a practical matter that is an inaccurate description: "Indian tribes have a special status as
sovereigns with limited powers. Indian tribes are dependent on, and subordinate to the federal
government, yet retain powers of self government." Further, "those powers may be limited, modified,
or eliminated by Congress." The DOL may enter Indian lands to inspect books, payroll records and
other related items and matters. As stated in the opinion, similar rulings have been made by other
courts in cases involving OSHA and the NLRA. Solis v. Matheson, d/b/a Baby Zack's Smoke Shop,
No. 07-35633 (9th Cir., 4/20/09); Internet: courts.gov/datastore/opinions/2009/04/20/0735633.pdf.
ADAAA, ADA: retroactive application apparently may not be a hazard
The United States Supreme Court denied certiorari review of this 10th Circuit ADA case holding that
driving was not a major life activity. Thus, that case briefed earlier in this database still stands as
applicable law in an ADA case decided before the effective date of he ADAAA. Kellogg v. Energy
Safety Servs., No. 08-965 (USSC 4/6/09). [Note: Perhaps we can infer from this denial that the United
States Supreme Court is disinclined to rule that the ADAAA ought to be applied retroactively, and
rather that it is remedial legislation to have only prospective application.]
Title VII: religion, police officer, accommodation, hijab (head scarf) not allowed
Illustrative; not controlling law. The City of Philadelphia was found to have had valid professional
reasons for denying a female Muslim officer's request to wear a hijab while on duty, and it had clear
written policies supporting its requirement:
- Strict enforcement of the uniform code supports essential values of impartiality, religious neutrality,
uniformity and the subordination of personal preference would be severely damaged to the detriment
of the proper functioning of the department.
- The police commissioner testified that uniformity "encourages the subordination of personal
preferences in favor of the overall policing mission" and conveys "a sense of authority and
competence to other officers inside the Department, as well as to the general public."
Further, the appellate court recognized that the undue hardship test was not a difficult threshold to
pass, and thus held that the commissioner's "thorough and uncontradicted reasons for refusing
accommodations [were] sufficient to meet the more than de minimis cost of an undue burden" on the
employer. Webb v. City of Philadelphia, No. 07-3081 (3rd Cir., 4/7/09); 2009 U.S. App. LEXIS 7169;
Internet: courts.gov/opinarch/073081p.pdf.
FMLA: reprisal, retaliation, timing, no adverse employment action; public sector
Illustrative; not controlling law. Warning, counseling and documenting employment deficiencies is
important for correcting poor performance as well proving that an adverse employment action is not
based on a discriminatory or retaliatory motive. Plaintiff was presented with a Performance
Improvement Plan (PIP) within a couple of months of her return from FMLA leave. She refused to sign
it and was ultimately fired. Her claim of FMLA leave reprisal or retaliation failed because for her
record of deficient performance based on documented complaints from both inside and outside of the
agency. The coincidence of returning from leave and being terminated for poor performance was not
sufficient proof of a prohibited action by her employer. Further, she "suffered no reduction in
responsibility, pay, hours, or any other benefit, and it [the PIP] did not impose a material change in her
employment duties." Cole v. State of Ill., No. 07-3081 (4/7/09); 2009 U.S. App. LEXIS 7169; Internet:
Google with quotation marks "Cole v. State of Ill." for a PDF copy of the opinion.
Leave: NM victims of domestic violence
Controlling law. Just to alert all of us, a new leave statute will go into effect July 1, 2009. It was
SB68 and a PDF file of the entire bill can be obtained from
/Sessions/09%20Regular/final/SB0068.pdf.
Below is an excerpt from the summary of the bill by the Legislative Finance Committee's Fiscal
Impact Report [Note the "#" in the NMSA citation means final additional alphanumeric designations
have not yet been assigned.]:
Promoting Financial Independence of Victims of Domestic Abuse Act; 50-4-#, NMSA 1978; effective
July 1, 2009. Domestic abuse leave can be taken for up to 14 days in any calendar year;
- Requires employers to grant such leave without penalty, retaliation or loss of employment;
- Purpose is to obtain:
- protective court order or other judicial relief;
- meet with law enforcement officials;
- consult with attorneys or victim advocates; or
- attend court proceedings related to the domestic abuse for themselves or family members.
- Employer is authorized to require verification of need through written statement by:
- victim;
- victim's attorney;
- victim advocate;
- law enforcement official; or
- prosecuting attorney.
- Limits employer's authority to disclose verification information without victim's consent, except by:
- court or administrative agency order; or
- as otherwise required by state or federal law.
FICA medical students eligible for exemption
Illustrative; not controlling law. Medical residents were found by the 2nd Circuit court of appeals to be
students as defined by the Act: " . . . who are 'enrolled and regularly attending classes . . ." are
entitled to exemption from FICA taxes and deductions. However, medical interns are not exempt.
United States v. Memorial Sloan-Kettering Cancer Center, Nos. 07-0926-cv(L), 07-0949-cv(Con) (2nd
Cir., 3/25/09); 2009 U.S. App. LEXIS 6397; Internet: /search?client=firefox-a&rls=org.mozilla%3Aen-
US%3Aofficial&channel=s&hl=en&q=sloan+kettering+fica&btnG=Google+Search.
ERISA: plant closure, no violation
Illustrative; not controlling law. Some days the appellate judges let loose their humor, describing the
world of ERISA as "the ubiquitous burden-shifting framework that has, like some B-movie villain,
devoured nearly every area of law with which it has come into contact." The 6th Circuit Court of
Appeals held that a group of former employees not transferred to the plant where their work was not
located (after closure of their former plant) was not interference with vesting of their retirement rights.
Failing to recall them did not violate Section 510 of the Act. A valid non-discriminatory reason was
provided by the employer: expensive over-capacity. Crawford v. TRW Automotive U.S., LLC, Nos. 08-
1132/1777 (6th Cir., 3/31/09); Internet: courts.gov/opinions.pdf/09a0124p-06.pdf.
USERRA: testing, sufficient alternate location, police officer
Illustrative; not controlling law. Police officers returning after active duty complained that they would
have fared better in testing if they had been at a more convenient location. Section 4311 is an anti-
discrimination section that does not require accommodation. There was no discrimination because
the officers were not prevented from taking the exam because they "were on active duty". Rather they
were treated no differently form other similarly situated employees. Sandoval v. City of Chicago, No.
08-2699 (7th Cir., 3/30/09); 2009 U.S. App. LEXIS 6863; Internet: /search?client=firefox-
a&rls=org.mozilla%3Aen-
US%3Aofficial&channel=s&hl=en&q=Sandoval+v.+City+of+Chicago%2C+No.+08-
2699&btnG=Google+Search.
FMLA: form altered, leave denied
Illustrative; not controlling law. Fraudulent altering her of her FMLA leave form by backdating resulted
in denial of the employee's leave, plus termination of her employment. Smith v. The Hope School, No.
08-2176 (3/30/09); 2009 U.S. App. LEXIS 6985; Internet: /verdicts/case.asp?n=08-
2176&s=IL&d=39495.
FMLA: evidence discovered during leave; termination, not interference, not retaliation
Illustrative; not controlling law. FMLA leave is a grant of time off to take care of a serious medical
condition, etc.; it is not a period of protection for previous misconduct. The FMLA reinstatement right
unlimited. Temporary workers substituting for the injured employee discovered and reported
misconduct: undelivered or damaged freight, unresolved customer complaints and incorrectly handled
overtime payments. Investigation revealed numerous incidents of misconduct. When the injured
employee returned from medical leave he was terminated. His claims of interference and retaliation
were dismissed by summary judgment by the rail court and the appellate court affirmed those
dismissals.because there was no causal link between his leave and the reasons for his termination:
"the fact that the leave permitted the employer to discover the problems can not logically be a bar to
the employer's ability to fire the deficient employee." If it were otherwise, employers would be
(illogically) forced to either reinstate and continue to employ a substandard employee or to risk FMLA
liability. Cracco v. Vitran Express, Inc., No. 07-3827, (7th Cir., 3/17/09); 2009 U.S. App. LEXIS 6067:
Internet: /verdicts/case.asp?n=07-3827&s=IL&d=39456.
NLRB: protected concerted activity, not specifically pertaining to unions or union organizing,
termination, unfair labor practice (ULP)
Controlling law. Delivery employees were fired for filing an FLSA wage and hour lawsuit and were
videotaped for picketing in front of the employer's restaurant. The National Labor Relations Act
(NLRA) protects concerted activity of workers taken for their mutual aid and protection and relating to
terms and conditions of employment. Saigon Gourmet. Rest., Inc., 353 NLRB No. 110 (3/9/09).
Title VII: gender stereotype, promotion, adverse employment action
Illustrative; not controlling law. One of the purposes of antidiscrimination laws is to break down
barriers arising from stereotyping. Promotion was denied in this case to a mother of an eleven-year-
old son and six-year-old triplets. She was more qualified than other candidates, but was told her
supervisor, that "it was nothing you did or didn't do. It was just that you're going to school, you have
the kids, and you just have a lot on your plate right now." The appellate court stated, "Unlawful sex
discrimination occurs when an employer takes an adverse job action on the assumption that a
woman, because she is a woman, will neglect her job responsibilities in favor of her presumed
childcare responsibilities." Chadwick v. Wellpoint, Inc., No. 08-1685 (3/26/09); 2009 U.S. App. LEXIS
6426; Internet: courts.gov/cgi-bin/getopn.pl?OPINION=08-1685P.01A.
FMLA: ineligible; handbook, promissory estoppel
Illustrative; not controlling law. Though ineligible for FMLA leave (insufficient number of company
employees) , the employee won FMLA rights because the employer told her she was eligible.
Employers need to check both their handbooks and what their supervisors are telling employees. As
you will recall, estoppel is a legal concept that allows a person to get something that they had benn
told they would get or were entitled to (in practical terms, "But you said . . . ! . . . and I relied on it.").
Reux v. Infohealth Mgmt. Corp., No. 08-cv-5068 (N.D. Ill. 3/10/09. Also see Thomas v. Miller, 489 F3d
293 (6th Cir., 2007) ruling that estoppel allowed COBRA coverage.
USERRA: calculating liquidated damage
Illustrative; not controlling law. The employer contended that it was not possible to calculate liquidated
damages for an Air Force reservist not returned to a similar position. In rejecting that argument, the
federal district trial judge noted that Wachovia was "a sophisticated company" that employed many
commission-based financial advisors, had a military leave policy and a team of people responsible for
dealing with military leave issues. Serricchio v. Wachovia Securities, LLC, No. 3:05-cv-01761-JBA
(U.S.D.C.CN, 3/19/09); ; Internet: /verdicts/case.asp?n=3:05-cv-01761-JBA&s=&d=39410.
Title VII: First Amendment, free speech, physician, reproductive matters; adverse employment action
Illustrative; not controlling law. A physician who opposed attempts to restrict medical residency
students from abortion training was removed from a leadership position. This case is in early stages
of litigation in Phoenix, but healthcare employers my want to follow this case for its free speech
implications. Carey v. Maricopa County, CV05-025000-PHX-ROS (U.S.D.C.AZ).
Union, ADEA: collective bargaining agreement (CBA), arbitration, statutory right to sue
Controlling law. A CBA that clearly and expressly required arbitration of ADEA claims was held to be
enforceable. 14 Penn Plaza LLC v. Pyett, No 07-581, ____ U.S. ____ (USSC, 4/1/09); 2009 U.S.
LEXIS 2497; Internet: premecourtus.gov/opinions/08pdf/07-581.pdf;
http://www.law.cornell.edu/supct/html/07-581.ZS.html. [Now the question is how broadly may
arbitration provisions in handbooks or contracts other than CBAs be enforced, and will they be upheld
for other anti-discrimination laws.]
Title VII: language problems, adverse employment action; reprisal; protected opposition, no notice of
such activity
Controlling law. Shortly after refusing to take lesson for improving his English language proficiency,
a Nigerian-born employee was fired for performing poorly. His Title VII reprisal claim failed because
the supervisor who made the decision to take the adverse employment action of firing him did not
know he was engaging in activity protected by Title VII, discrimination based on race or national
origin. His sole stated reason for refusing to take the language lessons was his contention that the
failure of others to understand him was their lack of exposure to people with accents, and they would
get used to it. The appellate court found his refusal of the course was because he thought it was
unnecessary. Zokari v. Gates, No. 07-6173 (10th Cir., 3/17/09); 2009 U.S. App. LEXIS 5900: Internet:
ADA: alcoholic, major life activities, disability not proven
FMLA: retaliation, proof of initial case, pretext, unreasonable corrective/adverse employment action
Controlling law. This case in our federal appellate jurisdiction is based on the ADA and the FMLA.
Burris v. Novartis Animal Health, U.S., Inc., No. 08-6030 (10th Cir., 1/27/09); 2009 App. LEXIS 1575;
Internet: /lx1/caselaw/freecaselaw?
action=OCLGetCaseDetail&format=FULL&sourceID=gdje&searchTerm=eWHH.CYGa.UYGY.GcDU&sea
ADA: Establishing an initial case of disability discrimination requires a claimant to a show that he was:
1) disabled as defined by the ADA;
2) qualified to perform the essential functions of the job with or without reasonable accommodation;
and
3) discriminated against because of his disability.
Novartis contended that his alcoholism wasn't a disability substantially limiting one or more of his
major life activities, which he failed to do because his testimony was that:
- his alcoholism generally limited his ability to daily care for himself, but
- he testified when pressed for specifics admitted or conceded that:
- it did not limit him from walking, seeing and dressing himself,
- he was able to function "somewhat normally" if he regularly attended AA meetings,
- he was able to go to work or otherwise complete assignments, and
- his alcoholism had nothing to do with fluctuations in his sales performance.
Thus, the appellate court concluded he lacked sufficient evidence that his alcoholism affected his
ability to function in his job, and it affirmed summary judgment in favor of his employer.
However, his FMLA retaliation claim will go to trial.
FMLA: Establishing an initial case of retaliation requires a showing that:
1) he had engaged in a protected activity;
2) his employer took an adverse employment action against him that a reasonable employee would
find retaliatory; and
3) a causal connection existed between the protected activity and the adverse employment action.
In December of 2004 a new district sales manger took over, worked with the employee in February
2005, and he was critical of his performance. The employee informed his employer in April 2005 that
he is an alcoholic, he entered inpatient on April 22nd for a month, participated in outpatient treatment,
and returned to work in early June. On June 15th the district sales manger gave the employee a
document entitled "Discussion Points and 30-Day Objectives" setting forth specific performance
requirements to be met. His midyear performance review rated him as "partially meeting
expectations", which is the lowest possible rating (in previous reviews he had ranked at the top or
near the top). On August 11th his manager and a human resources representative presented him with
a performance improvement plan (PIP) that was a final warning of deficient performance; the sales
and administrative goals were found by the appellate court to be unfairly difficult. On August 26th the
employee emailed a progress report acknowledging he had not met those PIP goals. A week and a
half later he was fired.
His retaliation claim was based on the contention that he was retaliated against for exercising his
FMLA rights, which consisted of placing him on an unreasonable PIP and terminating him shortly after
returning from treatment leave. His employer responded that he was fired for poor performance,
which then shifted the burden of going forward to the employee to prove the employer's reason was a
pretext for discrimination. He did that by presenting circumstantial evidence showing he was treated
differently from similarly situated employees:
- the appellate court compared his records of sales performance against the records of other similar
sales representatives, and
- it closely examined his performance reviews and the PIP, finding that:
- until he took FMLA leave, his performance was comparable or better than a .number of his
teammates,
- his FMLA leave had adversely affected his sales performance numbers, and
- his deficient sales numbers were used in addition to his administrative deficiencies to subject him to
increasingly unrealistic work performance requirements that resulted in terminating his employment.
Thus, the appellate court concluded that a reasonable jury could find that he was not actually fired for
poor performance because the requirements made upon him after is FMLA leave were onerous and
part of a retaliatory scheme to discharge him after his FMLA leave. Summary judgment in favor of the
employer was reversed and his FMLA claim was reinstated
He lost on his disability claim, but he was entitled to a jury trial on his leave claim. Though
documenting corrective and/or adverse employment actions is essential, the actions of the employer
must be reasonable under the circumstances. Courts repeatedly have stated are reluctant to second-
guess employers, but they have also said they will scrutinize an employer's actions that clearly
appear to seem suspicious.
EEOC: ADA claim, exhaustion of administrative remedies, filing deadlines, timely "charge", sufficient
information, permissive filing standard
Controlling law. What is sufficient documentation for a discrimination charge? A recent United States
Supreme Court case definitively dealt with what kinds of filing information and document(s) will be
sufficient notify the EEOC of a claim for relief made on the agency for investigation, hearing and
action to subsequently allow pursuit of the claim in court. This unpublished opinion in our federal
appellate jurisdiction is based on Federal Express Corp. v. Holowecki, No. 06-1322 (2/27/08), 552
U.S. ____; 2008 U.S. LEXIS 2196; Internet: http://www.law.cornell.edu/supct/html/06-1322.ZS.html;
http://www.law.cornell.edu/supct/pdf/06-1322P.ZO, recently briefed in this database that discusses
filing deadlines and what kind of filing information is sufficient to inform the EEOC that a claim has
been made and relief is requested. The reason for a relaxed standard is that many claimant are not
attorneys, and thus not knowledgeable about the formalities of making a claim of discrimination. To
rule otherwise could have the effect of defeating otherwise valid claims.
Carson v. Cudd Pressure Control, Inc., No. 07-6199 (10th Cir., 11/19/08): 2008 U.S.App. LEXIS
24033; Internet: /lx1/caselaw/freecaselaw?
action=OCLGetCaseDetail&format=FULL&sourceID=gdje&searchTerm=eWaa.Xhda.UYGY.GcIK&searc
Within 300 days of his discharge the employee submitted three verified intake questionnaires and an
affidavit to the EEOC alleging violation of the ADA for either actual disability or for being regarded as
disabled. The agency issued a formal "Charge of Discrimination" and later a right-to-sue letter. His
complaint filed with the federal district court alleged an ADA claim and that he had exhausted is
administrative remedies. Our 10th Circuit Court of Appeals found that was sufficient to notify the
EEOC of a claim for relief made on the agency for investigation, hearing and action to subsequently
allow pursuit of the claim in court. It characterized the Holowecki rule as a "permissive standard" that
allows a broad range of documents to qualify as EEOC "charges" because the USSC found that to be
consistent with the purpose and design of the federal employment acts and laws prohibiting
discrimination because many claims are filed by non-lawyers.
NLRA: confidentiality agreement too broad
Illustrative; not controlling law. The National Labor Relations Act covers terms and conditions of work
and Section 8(a)(1) of protects employees who discuss them. Confidentiality agreements required by
some employers are designed to protect a company's essential business or trade secrets from being
shared with third parties. However, if the confidentiality agreement could reasonably be interpreted to
prohibit communications with union representatives about terms and conditions of employment, then
it is too broad. In this case the employee shared information about terms and conditions with a third
party, an employee of another company, and was fired for that. The NLRB decision ruled that
discharge violated the Act because it could be interpreted as prohibiting an employee from discussing
terms and conditions with a union (even though in this case it did not happen to be with a union).
Northeastern Land Services v. NLRB, No. 08-1878 (3/13/09); 2009 U.S. App. LEXIS 5267; Internet:
courts.gov/cgi-bin/getopn.pl?OPINION=08-1878P.01A.
NLRA: protected speech, profanity, considered rather than spontaneous
Illustrative; not controlling law. Union negotiations can be heated and contentious, so the NLRA
allows wide latitude on what can be said. However, there are limits. A union newspaper pressman
was not protected when he called the employer's vice-president of operations "a stupid f---ing moron"
in response to the executive's letter to pressmen about current contract negotiations. The NLRB had
ruled that such conduct was not so "egregious" as to warrant being fired. However, the appellate
court overruled the Board's decision" because "This was not a spontaneous outburst in response to
an illegal threat but an ad hominem attack" Media General Operations v. NLRB, (4th Cir., 3/13/09);
Internet: http://209.85.173.132/search?
q=cache:Et1ni79sfV0J:courts.gov/opinion.pdf/081153.P.pdf+Media+General+Operations+v.+NLRB,+Ma
a.
ADA: Voice condition, public perception, unreasonable production goals, RIF termination, failure to
rehire, similarly situated employees
Illustrative; not controlling law. Perceptions admitted by bank executives about how the public might
perceive a voice condition of a loan officer violated the ADA. He had been employed for 21 years.
Unrealistic production goals were imposed upon him, goals also not imposed on similarly situated
employees. Summary judgment in favor of the employer was overruled and the tow issues for the jury
were (1) whether he was qualified for the job and (2) was the bank's reason for not rehiring him a
pretext for unlawful. Willnerd v. First Nat'l Neb., Inc., No. 07-3316 (3/13/09); 2009 U.S. App. LEXIS
5218; Internet: /verdicts/case.asp?n=07-2901&s=MO&d=39373.
ADA: diabetes, urinary incontinence, exposing to view, reasonable accommodation
Illustrative; not controlling law. Once again, perhaps using some common sense might have avoided
litigation. Diabetes caused frequent urination problems of genital exposure as the employee relieved
himself at his work station that was far from the toilet. However, the issue of reasonable
accommodation was not reached because his discrimination claim failed because the person who
decided to terminate him for exposing himself in the process did not know that his urination problem
was caused by his diabetes disability. EEOC v. Cast Prods., Inc., (U.S.D.C.N.D.Ill., 3/9/09); Internet:
/cases/Cast%20Products.pdf. [Note: No other citation was available as of 3/26/09, but the point is to
make a reasonable attempt at an interactive process of determining if there might be a reasonable
accommodation that could be made. If not, then it is possible that the employee would not be
qualified to perform the essential functions of his job without disturbing coworkers by exposing himself
as he urinates at his work station.]
ERISA: benefits transferred, wrong defendant, retirement beneficiaries cannot sue former employer
Controlling law. AT&T transferred the benefits plan to its spin-off, Lucent Technologies, which later
partially eliminated some benefits. The beneficiaries attempted to sue AT&T, but their claim failed:
"Even if AT&T at one time had an irrevocable obligation to the appellants, it passed that obligation to
Lucent when it passed the administration of the benefits plans to Lucent," the appellant court
explained. " Their claim, if any, would have to be brought against Lucent. Chastain v AT&T, No. 07-
6288 (10th Cir., 3/9/09): 2009 U.S. App. LEXIS 5268; Internet: courts.gov/opinions/07/07-6288.pdf.
FMLA: insufficient notice of entitlement to leave, employee's lack of cooperation, non-compliance with
company attendance policy, burden of proof; no interference, no retaliation
Illustrative; not controlling law. Employees have obligations under the FMLA - in addition to their
rights. The trial court dismissed the employee's interference claim based on this scenario:
- the employee emailed his supervisor requesting "a couple days off" to make arrangements for his
mother hospitalized for an insulin overdose;
- he could not establish an FMLA interference or retaliation claim after his employer discharged him
for violating the company's call-in policy because he did not make a sufficient request for FMLA leave:
- the email expressly stated that although he could apply for FMLA leave (which he called the "family
care act"), he did not want to at this time, and he asked for Instead, he asked for vacation time;
- the supervisor who received the email attempted unsuccessfully several times to contact the
employee - he admitted to turning off his company-issued cell phone;
- finally contacting his supervisor eight days later, the employee was fired for violating the company
attendance policy (failure to report to work for more than two consecutive days without notifying a
supervisor is grounds for discharge); and
- the employee's email stated he would be gone for only "a couple of days."
Though the employee alleged that his email referencing the FMLA was sufficient to put his employer
on notice that his absence was covered by the FMLA, the Illinois federal trial found otherwise, stating
that the burden never shifted to the employer to determine if the absence was covered. Further, the
employer was neither required to ignore the employee's unequivocal statement that he was not
interested in applying for FMLA leave nor to "persuade the employee away from that position." Righi
v. SMC Corp. of America, No. 07-cv-1064, (C.D. Ill., 2/27/09): 2009 U.S. Dist. LEXIS 15429.
FMLA: pre-adoption activity interference, retaliation; pre-judgment interest
Illustrative; not controlling law. Interest on judgments is an important aspect of being made whole
because a party has had to wait for its money. Also, as a practical matter an interest award
encourages a party to be realistic and reasonable about making payments due (rather than
withholding payment if it considers that might discourage a party in an inferior economic position).
The company contended the employee had taken intermittent leave for pre-adoptive activity is
awarded for without company consent. However, his evidence showed he kept the company informed
of his need for absences, including two trips to Russia. At issue was his right to pre-judgment interest
on his FMLA damages, and the decision held he was entitled to it because he won and the FMLA
makes that award mandatory, not discretionary. Dotson v. Pfizer, Inc., No. 07-1920 (4th Cir., 3/4/09);
Internet: courts.gov/opinion.pdf/071920.P.pdf.
Title VII: gender, sex, cronyism; no illegal discrimination
Illustrative; not controlling law. Not all discrimination is prohibited: there is discrimination, and there is
illegal discrimination. In this case the discrimination was not illegal. Title VII protects against
discrimination based on race, color, religion, gender, ethnicity, national origin, age, or disability.
However, the only proof offered by the female plaintiff was that her supervisor was bypassing both
male and female employees in granting overtime work so he could benefit some of his friends. The
trial judge and the appellate court ruled that Title VII was not violated and dismissed her case before
she finished her portion of it, i.e., if that's all you have, you need not go any further. Greene v. Potter,
No. 08-1829 (7th Cir., 3/5/09); Internet: /cases/Greene.pdf [CCH WorkWeek: /netNews/employment-
law/current.asp is a valuable Internet resource.]
FLSA: attorney fee, costs: offer of judgment, inappropriate conduct
Illustrative; not controlling law. As the nursery rhyme says, "Then you shall have no pie." Attorneys
need to make reasonable efforts to resolve disputes before resorting to litigation. Incivility and
unreasonable conduct are discouraged in litigation, and reasonable behavior is encouraged (as much
as possible). To accomplish that, the Federal Rules of Civil Procedure, and similar ones in many state
courts, encourage settlements by permitting a party to make an offer of judgment in settlement of a
case. Without getting into the intricacies of those rules, there are penalties for unreasonable and/or
obstinate behavior. Though this was an FLSA case, its reasoning may well be persuasive in other
types of cases. Plaintiff sued for overtime wages. Rather than attempt to resolve the matter before
litigation, she made no written demand on her employer for payment of overtime, nor for attorney fees
and court costs. In litigation, the employer, using FRCP Rule 68, offered judgment of $3,500, plus
attorney fees and costs that the court might determine were appropriate. The court denied the
attorney fees and costs because of the uncivil conduct of the attorney:
- no effort to inform opposing counsel of the impending claim, and
- no effort to resolve the claim before litigation, thus wasting court time and resources.
Courts have the power to regulate the practice of law in case brought to them. Sahyers v. Prugh,
Holliday & Karatinos, No. 08-10848 (11th Cir.,3/3/09); Internet:
WARN Act: unforeseeable circumstances, commercially reasonable business judgment
Controlling law. Unforeseen loss of a key customer and subsequent layoffs did not violate the
Worker Adjustment and Retraining Notification Act (because of inability of a key customer to obtain
critical inventory financing). Some of the employees who were laid off sued, alleging failure to give the
90 days of notice required by the WARN Act. Their claims were dismissed because the sudden loss
of business was unexpected. DOL regulations state that an "important indicator of a business
circumstance that is not reasonably foreseeable is that circumstance is caused by some sudden,
dramatic, and unexpected action or condition outside the employer's control." As to "foreseeability",
the regulations state that an employer must exercise the reasonable business judgment that an
employer in a similar situation would have used in predicting its particular marker demands. The
appellate court stated that the test should be objective and the circumstances not be narrowly
considered. Here, the employer attempted to avoid disaster by pursuing its financing efforts. The
court observed that requiring notice at each possible point of a problem in a turbulent economy may
result in announcements of problem that may never occur. [Note: It sounds as though the court was
addressing probabilities rather than possibilities.] Gross v. Hale-Halsell Co., No. 04-CV-. 0098-CVE-
FHM (10th Cir., 1/20/09); 2009 U.S. App LEXIS 1300; 2006 WL 2666993; 157 Lab. Cas. (CCH)
P11,154; 28 I.E.R. Cas. (BNA) 993.
ADEA: policy violations; McDonnell Douglas test, pretext unproven
Controlling law. This is a complex case with extensive details, twists and turns, so reading the full
decision is strongly recommended. Briefly, the employee had numerous policy violations of varying
degree and ambiguity. He contended the reasons for termination tendered by his employer were a
pretext to cover up age discrimination, but the trial and appellate court disagreed and summary
judgment in favor of the employer ordered by the trial court was affirmed by the appellate court. Bittel
v. Pfizer, Inc., No. 07-3311 (10th Cir., 1/9/09); 2009 U.S. App. LEXIS 475; Internet:
http://ca10.washburnlaw.edu/cases/2009/01/07-3311.pdf.
ADAAA: not retroactive
Illustrative law from the Fifth, Sixth, and Seventh Circuit Courts of Appeals discussed in article:
/shownews.aspx?Show=4568
First Amendment: free speech not suppressed
Controlling law. The United States Supreme Court held that free speech was not suppressed.
Idaho's Voluntary Contributions Act (VCA) limits some, but not all, payroll deductions. A union
challenged the VCA as suppression of its free speech. Justice Roberts wrote that there was a rational
basis for implementing the law. States may decline to assist free speech, but may not impede it.
Ysursa v. Pocatello Ed. Assoc., No 07-869, ____ U.S. ____ (USSC, 2/24/09); 2009 U.S. LEXIS 1632;
Internet: http://www.law.cornell.edu/supct/html/07-869.ZS.html.
Title VII: association with persons in protected class, direct harassment
Illustrative; not controlling law. A Caucasian employee presented sufficient evidence of direct racial
harassment as a result of associating with African-American employees:
- She complained about a co-worker's racist language, and she alleged that after he was fired he had
threats of physical violence passed on to her by two coworkers;
- several coworkers and a supervisor often made racially derogatory comments criticizing her
association with a black coworker;
- she alleged that an African-American supervisor harassed her because of her relationships with
black employees;
- twice a supervisor and a coworker discouraged her from applying for job advancements because
they disapproved of her friendship with African-American coworkers;
- she reported almost all of these incidents of coworker harassment to one of two supervisors who
failed to take corrective action; further; and
- she alleged that both of them directly harassed her.
Thus, there was sufficient evidence for a reasonable jury to find discrimination. Barrett v. Whirlpool
Corp., No. 08-5307 (2/23/09); 2009 U.S. App. LEXIS 3443; 2009 FED App. 0065P (6th Cir.)
Title VII, FMLA: hostile work environment, constructive discharge, retaliation
Controlling law. "Constructive discharge" means that conditions were bad enough to change the
nature of the employment to the point of forcing out a reasonable employee unwilling to tolerate
things any more - a hostile work environment. She alleged:
- her supervisor subjected her to increased oversight and singled her out for constant performance
evaluation after her return from FMLA leave;
- she was denied transfers and was told that she could not take advantage of her company's open-
door policy to discuss her situation with her supervisor's manager.
Our Tenth Circuit Court of Appeals found that this evidence indicated an intolerable workplace and
that a rational jury could find the employer's offer of a transfer made four months after she left UPS
was an unrealistic option. Further, she is also entitled for her sex discrimination claim to be decided
by a jury, noting that even though a female coworker was not subject to the same mistreatment, both
male and female coworkers testified that she was treated differently from every man in her
department. Strickland v. United Parcel Service, Inc., No. 07-1082 (10th Cir., 2/24/09); 2009 U.S. App.
LEXIS 3654; Internet: /verdicts/case.asp?n=07-1082&s=CO&d=39219.
Evidence: after-acquired, irrelevant
Controlling law. "After-acquired" evidence in this case means it was evidence acquired by the
employer after it made its decision to take an adverse employment action against the employee it
discharged. What counts is the information known or honestly believed by the employer at the time of
its decision. So, evidence of misconduct acquired after the discriminatory adverse employment action
decision is perhaps interesting, but it is legally irrelevant. Perkins v. Silver Mountain Sports Club and
Spa, No. 07-4130 (10th Cir., 2/25/09); 2009 U.S. App. LEXIS 3716; Internet: /verdicts/case.asp?n=07-
4130&s=UT&d=39217.
ADEA: Exclusive remedy, Eleventh Amendment bar to individuals suing state government; Title VII
claim barred
Illustrative; but controlling law in NM - see Cockrell v. Board of Regent of New Mexico State
University, 2002-NMSC-009, 132 N.M. 156, 45 P3d. 876, Alden v. Maine, 527 U.S. 706, 711 (1999),
and application of Ex Parte Young, 209 U.S. 123 (1908). The plaintiff was barred by previous case
law from bringing her individual personal discrimination claim. She tried to circumvent that previous
case law by amending her claim and attempting to proceed under Title VII. That failed because the
Ninth Circuit Court of Appeals ruled as have numerous other circuits in holding that the ADEA is
structurally and fundamentally different from Title VII, and the ADEA is the exclusive remedy for age
discrimination claims. Ahlmeyer v. Nevada System of Higher Ed., No. 06-15654 (2/18/09); 2009 U.S.
App. LEXIS 3024.
VII: mailing notice of right to sue, "mailbox" rule
Illustrative; not controlling law. An employee must comply with deadlines in order to proceed with a
discrimination claim in the administrative and court processes. At issue was whether the EEOC had
given her notice of her "right to sue" by mailing her a letter to that effect. Apparently in a measure to
reduce costs, the EEOC changed from mailing notice letters by certified mail to using merely First
Class postage and instituting a "mailbox" rule, which is a presumption that government notices placed
in the mail are presumed to have been received within seven days. [Note: Mailbox rules have been a
legal presumption for many years in generally throughout the law.] However, presumptions often can
be rebutted. In this Fifth Circuit case, the summary judgment dismissal of the plaintiff's claim was
reversed for these reasons:
1) the EEOC presented no evidence that it had mailed the letter;
2) The plaintiff's affidavit in opposition to the motion for summary judgment states she had received it
almost two years later than the date of mailing alleged by the EEOC;
3) her attorney presented evidence he had attempted to contact the EEOC about the status of her
case and had written advising she wanted to pursue her case.
[Note: Using certified mail would have avoided the problem.] Duron v. Albertson's LLC, No. 07-30290
(5th Cir., 2/17/09); Internet: courts.gov/opinions%5Cpub%5C07/07-30290-cv0.wpd.pdf.
ADA: valid business, job-related reason for security guards to have unaided hearing, pre-employment
requirement not violation
Illustrative; not controlling law. Generally, pre-employment requirements are prohibited by the ADA
[and ADAAA]. However, in certain instance there may be a valid business, job-related reason for a
certain requirement. This case follows closely on the heels of Wice v. General Motors Corp., No. 07-
10662, 21 AD Cases 625 (E.D. Mich. 2008), very recently briefed in this database. In the Eleventh
Circuit case briefed now, security guards in federal courthouses needed to have full and accurate
hearing, so applicants were required to take the pre-employment medical examination without using
hearing aids or other assistive hearing devices. Why? The court said that if a hearing aid or assistive
device were to fail during an emergency, then a security guard might not be able to provide full
security, and full security is an essential function of the job. Usually establishing a lawful business
necessity "is generally quite high," but the court also explained that this burden "is significantly
lowered" where the "`the economic and human risks involved in hiring an unqualified applicant are
great.'" Allmond v. Akal Security, Inc., No. 07-15561 (11th Cir., 2/20/09); 2009 U.S. App. LEXIS 3287;
Internet: courts.gov/opinions/ops/200715561.pdf.
Title VII: sexual harassment, off-duty, outside of workplace
Illustrative; not controlling law. Sexual harassment is not necessarily limited to working hours and the
workplace. Perhaps employer ought to consider updating and expanding their written policies and
training programs. A female employee complained of sexual harassment when coworker
propositioned her by offering money for sex, both were off duty at the time. She refused, and alleged
that shortly after that her hours were reduced and her coworkers and supervisors treated her poorly.
Though the case was ultimately dismissed, the trial court noted that conduct taking place outside of
the workplace "has a tendency to permeate the workplace," and in an appropriate case the
defendants "may be liable as the harasser's employer because[,] although the alleged harassment
took place outside the workplace, it arose out of the harasser and [p]laintiff's employment
relationship." Ferguson v. Deptford Twp., et al., No. 06-2112, 2008 WL 5401630 (D.N.J., 12/22/08);
[Note: No additional citation to this unpublished case was available as of 2/19/09.]
Private sector: criminal law, search and seizure, privacy, strength of personal connection, type and
use of space searched suspected fraud
Illustrative; not controlling, but this 9th Circuit Court of Appeals decision is based on precedent from
our 10th Circuit Court of Appeals. Though it is a criminal case, it gives us some considerations about
search and seizure in the workplace. Two corporate officers of a California corporation (apparently a
small business with a small workspace) were suspected of wide-spread Medicare fraud. The 9th
Circuit Court of Appeals said "We must decide whether corporate executives may challenge a police
search of company premises not reserved for the executives' exclusive use." The Ninth Circuit Court
of Appeals borrowed our10th Circuit jurisdiction law: the strength of an employee's personal
connection to the area searched must be determined by whether: "(1) the item seized is personal
property or otherwise kept in a private place separate from other work-related material; (2) the
executive had custody or immediate control of the item when officers seized it; and (3) the executive
took precautions on his or her own behalf to secure the place searched or things seized from any
interference without his or her authorization." Appling this standard, the Ninth Circuit Court of Appeals
stated that "Absent such a personal connection or exclusive use, a defendant cannot establish
standing for Fourth Amendment purposes to challenge the search of a workplace beyond his internal
office." Thus, the motion of the defendant executives to suppress the results of the employer's search
failed. USA v. SDI Future Health, Inc., No. 07-10261 (9th Cir. 1/27/09); 2009 U.S. App. LEXIS 1329;
Internet: courts.gov/datastore/opinions/2009/01/27/0710261.pdf.
FMLA: no provisional approval, employee submit a medical certification form attesting to his inability
to work
Illustrative; not controlling law. Alleging that he overhead a human resources manger state that his
leave was "provisionally" approved, his reliance on that, if it in fact had been said, was unreasonable.
Further, he was informed three times that he had failed to submit the required medical certification
form substantiating his claim that he was medically unable to work. Finally, the second letter to him
stated that his leave was denied and that he was not on provisional leave. He was fired for excessive
absenteeism in violation of the company no-fault policy. His claim was dismissed because his reliance
on the remark, if it had been made, was unreasonable. Reed v. Lear Corp., No. 08-1498 (E.D. Mo.,
2/12/09); 2008 WL 312907.
FMLA, ADA: unable to return to work at end of leave, retaliation; not regarded as disabled,
reasonable accommodation
Illustrative; not controlling law. Because her doctor's opinion was that the employee would be unable
to return to work after her 12 weeks of FMLA leave, the employee was terminated at the end of her
10th week. Both the trial court and the appellate court dismissed he claims under the FMLA, and the
ADA.
- An employee who will be unable to return to work after the 12 weeks of FMLA leave does not have
the protection of the FMLA, and thus this employee was not prejudiced by the early termination, nor
was she retaliated against because she was made aware before she took the leave that she would
likely be terminated.
- Her ADA claim of being regarded as disabled was rejected because she would have to prove that
her employer regarded her as substantially limited in a major life activity, which in this case would be
working. As such, she would have to prove that her employer believed she was she was suffering
from a condition preventing her from working in a broad range of jobs rather than just the job she had
been doing. She was unable to prove that. [Caution: Be sure to check with legal counsel about how
the recently enacted ADAAA might affect this decision, especially because now an impairment that
substantially limits one major life activity need not limit other major life activities to be a disability. Also,
individuals who suffer from episodic impairments or impairments that are in remission, such as cancer
or epilepsy, will still be protected under the ADA and ADAAA so long as the impairment would
substantially limit a major life activity when active.] Roberts v. The Health Association, No. 07-3553-cv
(2nd Cir., 2/3/09); 2009 U.S. App. LEXIS 1944.
FLSA: "outside sales" exemption
Illustrative; not controlling law. Employees who perform promotional work for sales but do not finalize
or process sales my fall under the "outside sales" exemption of the FLSA and thus not qualify for
overtime pay. As always, check with your legal advisor about whether this ruling might be valid in our
jurisdiction. Gregory v. First Title of America, Inc., No. 08-10737 (11th Cir., 1/2709); 2009 U.S. App.
LEXIS 1630; Internet: courts.gov/opinions/ops/200810737.pdf.
Unions: three new Presidential Executive Orders
The Potential Impact of President Obama's Three Executive Orders and a New Task Force, by Fisher
& Phillips, LLP; /shownews.aspx?The-Potential-Impact-of-President-Obamas-Three-Executive-
Orders-And-A-New-Task-Force&Ref=list&Type=1122&Show=11392
FMLA: future request for leave, retaliation
Illustrative; not controlling law. Giving notice of anticipated need for future FMLA leave is encouraged
by the act and its implementing regulations. In this case the employee was not eligible at the time of
the notice and request, but would have been at the time requested, in other words, at a foreseeable
future date. His premature child was in the NCIU, and he needed to take his FMLA leave after his wife
returned from her FMLA leave, and that time he would be eligible (he would have worked his required
12 months. [Note: Perhaps the employer felt this was too much leave by the husband and wife,
eligible or not.] In denying the employer's motion to dismiss the employee's retaliation claim, the
federal district court trial judge in the Northern District of Illinois stated that "Congress intended to help
and protect employers by insuring adequate notice of extended absences by employees." . . . "It
would be illogical to interpret the notice requirement in a way that requires employees to disclose
requests for leave which would, in turn, expose them to retaliation, or interference, for which they
have no remedy." Reynolds v. Inter-Industry Conf. on Auto Collision Repair (1/14/09); [Note: No
citation information available as of 2/12/09, though CCH has provided this PDF file link in its online
service: /cases/Reynolds.pdf.]
ADA: medical testing before conditional offer of employment
Illustrative; not controlling law. General medical inquiries and testing before a conditional offer of
employment violates the ADA. However, this court noted a narrow exception in the ADA: an employer
may require a medical examination or make disability-related inquiries if the examination or inquiry is
"job-related and consistent with business necessity", and it is the employer's burden to prove both
job-relatedness and business necessity." [Note: This appears to be a matter of safety concern.]
In this instance the employee's position involved moving tools and other equipment around the
company's plant covering a million square feet and within the plant operating mobile equipment, such
as bulldozers and portable cranes. This federal trial court found that these job duties required all
individuals in the position of millwright to renew their in-plant driver's license every three years as well
as attend refresher training and pass a medical exam to ensure plant safety.
Citing a 2003 U.S. Court of Appeals for the Second Circuit decision for the business necessity
standard, the federal trial court for the Eastern District of Michigan quoted this reasoning: "'[T]he
employer must first show that the asserted "business necessity" is vital to the business…. The
employer must also show that the examination or inquiry genuinely serves the asserted business
necessity and that the request is no broader or more intrusive than necessary. The employer need not
show that the examination or inquiry is the only way of achieving a business necessity, but the
examination or inquiry must be a reasonably effective method of achieving the employer's goal.'" , it
concluded that the company's testing requirement was a "'reasonably effective method' of achieving
[the employer's] goal of a safe workplace." and that the employer had sufficiently proven that the
medical exam is job-related and necessary to the operation of its business. As always, check with
your legal counsel before proceeding with such a policy and practice to be sure this is appropriate for
your situation. Wice v. General Motors Corp., No. 07-10662, 21 AD Cases 625 (E.D. Mich. 2008);
[Note: no further citation information was available as of 2/11/09.]
ERISA: benefits, retiree health care, distribution of death benefits; terms of specific plan documents;
collective bargaining agreement (CBA)
Benefits plan administrators and practitioners ought to check the specifics in these two cases:
- Kennedy v. Plan Administrator for DuPont Savings and Investment Plan, et al., No. 07-636, U.S.
Supreme Court (January 26, 2009) - briefed earlier in this database, and
- Winnett v. Caterpillar, Inc., No. 07-6275 (6th Cir., 1/27/09); 2009 W.L. 170598; 2009 U.S. App.
LEXIS 1881; 2009 FED App. 0027P (6th Cir.)
Title VII: untimely claim barred, discharge notice not bluff
Illustrative; not controlling law. The employee's discrimination claim was barred because he did not
file his discrimination claim within the mandatory time period. His contention that he thought his
employer's discharge notice was a bluff to convince him to change his religious position on evolution
was rejected. The time begins to fun from the date of the adverse employment action was
communicated to him, not when he finally believed it. Four termination notices had been sent in the
month before his date of discharge. Abraham v Woods Hole Oceanographic Inst., No .08-1655 (1st
Cir., 1/22/09); 2009 U.S. App. LEXIS 1146; Internet: /verdicts/case.asp?n=08-1655&s=MA&d=38806.
Title VII: Ellerth/Faragher affirmative defense, failure to report alleged harassment
Illustrative; not controlling law. However, this is a close case and should be read for details. The
claimant did not report her sexual harassment claim to the company she knew the harasser, a human
resources manager, was close friends with the director of human resources and they often went out
drinking together. The company policy stated:
Two provisions of AEELA's sexual harassment policy are relevant to this appeal. Section 3.2 of the
policy states: "An employee who feels he has been sexually harassed at work in any way, should
present his complaint to the Human Resources Department. If the alleged harasser should be this
person, or anyone related or close to him, then the complaint must be presented directly to the
Association's Executive Director." Section 3.3 of the policy states: "It is the responsibility of any
employee who witnesses a sexual harassment act, or if any other employee has complained of being
a victim of sexual harassment, to immediately inform the appropriate official."
This is a somewhat typical example of providing alternative routes of reporting, but the courts decided
to give the claimant a chance before a jury with her allegations because she contended all of the
persons to whom she would have reported were all friends of the alleged harasser and she feared the
consequences of reporting according to policy. If there is a valid reason for failure to report, the claim
is reporting requirement of Ellerth/Faragher does not apply. Monteagudo v. Asociación de Empleados
del Estado Libre Asociado de Puerto Rico, No. 07-2341 (1st. Cir., 1/26/09); 2009 U.S. App. LEXIS
1282; Internet: courts.gov/cgi-bin/getopn.pl?OPINION=07-2341P.01A.
Retaliation: internal investigation of inappropriate behavior, coworker answering question, "opposition

clause", "protected activity"
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; Internet free download courtesy of Lexis:
/lx1/caselaw/freecaselaw?
action=FCLRetrieveCaseDetail&caseID=1&format=FULL&resultHandle=cb54c431623b1f461be5c47653
(crawford)+&juriName=U.%20S.%20Supreme%20Court&sourceFile=GENFED;USLED.
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.
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:
courts.gov/opinions/07/07-3155.pdf. [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 App. 24566; Internet: http://ca10.washburnlaw.edu/cases/2008/12/07-1125.pdf
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:
premecourtus.gov/opinions/08pdf/07-610.pdf. 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:
The collective-bargaining agreement between Maine and respondent local union, the exclusive
bargaining agent for certain state employees, requires nonmember employees represented by the
union to pay the local a "service fee" equal to the portion of union dues related to ordinary
representational activities, e.g., collective bargaining or contract administration activities. That fee
does not include nonchargeable union activities such as political, public relations, or lobbying
activities. The fee includes a charge that represents the "affiliation fee" the local pays to the national
union. But, it covers only the part of the affiliation fee that helps to pay for the national's own
chargeable activities, which include some litigation activities that directly benefit other locals or the
national itself, rather than respondent local.
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: courts.gov/opinions/pub/07/07-20835-CV0.wpd.pdf.
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; Internet: /Pages/Login.aspx?
ReturnUrl=%2fPages%2fSecure%2fDocument.aspx%3fd%3dLBnP4eV%252fZPMt3nZcMAXNUA%253
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;2008 WL 5378011:
Internet: courts.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;.
Internet: /public/resources/documents/foleylardner.pdf.
FLSA: store managers performing mostly non-exempt duties
Illustrative; not controlling law. At stake was millions of dollars in overtime wages for 1,400 store
managers who had routinely worked 60 to 70 hours a week. Evidence and testimony showed they
had worked 80-90% of the time performing non-exempt work, such as stocking shelves, running
registers, unloading trucks, cleaning parking lots, floors and bathrooms, and that they had little
discretionary authority or power because most decisions were made by district managers. Morgan v.
Family Dollar Stores, Inc., No. 07-12398 (11th Cir., 12/16/08); 2008 U.S. App. LEXIS 25187; 21 Fla.
L. Weekly Fed. C 1304; Internet: /Pages/Login.aspx?
d=u77xt3zdKy4YMcwM9DDUOQ%3d%3d&l=Cases.
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; Internet, The Public
Library of Law: /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; 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;
Notice: Please refer to Federal Rules of Appellate Procedure Rule 32.1 governing the citation to
unpublished opinions. Internet resource by LEXIS: /lx1/caselaw/freecaselaw?
action=OCLGetCaseDetail&format=FULL&sourceID=gdje&searchTerm=eUTa.OOaa.UYGY.GcQd&sear
[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., 11/2508); No. 07-12794, 2008 WL 5062890; Jackson Lewis Internet article with details:
/legalupdates/article.cfm?aid=1593
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.
Richard Dennis worked for Osram Sylvania in its human resources department from August 1995
until March 2004 representing the company at recruiting job fairs and assisting in its intern program.
What made this case complicated for the employer was that two separate human resources claims
were going on in close temporal proximity.
- 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.
Also in progress was a reduction in force by the company. Dennis was terminated as part of the RIF
based on the reason that his performance was "severely weakened" by the complaint by the
applicant, which necessitated having to chose in the RIF situation between Dennis and another
employee that the supervisor considered to be a "high achieving human resources manager."
Dennis filed a complaint under the New Hampshire state anti-discrimination law that was removed to
federal trial court and eventually dismissed by summary judgment. The appellate court affirmed the
summary judgment, ruling that:
- 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.
Dennis v. Osram Sylvania, No. 07-2670 (1st Cir., 12/10/08); 2008 U.S. App. LEXIS 25255; Internet:
courts.gov/cgi-bin/getopn.pl?OPINION=07-2670P.01A.
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: courts.gov/opinions.pdf/08a0432p-06.pdf.
NLRB: duty to bargain, changes in terms and conditions of employment, drug and alcohol testing
Controlling law. Employers bound by union contracts have a duty to bargain with the union if there is
to be a substantial change in the terms and conditions of employment, and drug and alcohol testing is
one such kind of term and condition. An employer may not unilaterally change such a term in either
content or application without notifying the union of a proposed change so that the union can have the
opportunity to bargain about that change. Failure to do so can result in an unfair labor practice (ULP)
claim. In this case the employer's policy required employees to submit to drug and/or alcohol testing
when: (1) they were involved in any on-the-job accident where the employee was injured and required
medical attention; (2) they were involved in any on-the-job accident involving equipment, machinery
or motorized vehicles; or (3) their conduct raised suspicion of being under the influence of drugs or
alcohol. In this case there was a problem with testing for drugs and alcohol in worker's compensation
cases involving cumulative trauma (hearing loss, bodily injury form repetitive stress, etc.), and also
decisions made by a company employee ("a loss control manager") without a medical degree.
Because the company essentially changed its policy about and application of its rules and had not
given the union the opportunity to bargain those terms and conditions of employment, the NLRB ruled
that the company had to submit to arbitration with the union to come to a new agreement about that
new policy application and practice. Union-Tribune Pub. Co., 353 NLRB No. 2 (2008); Internet:
http://www.nlrb.gov/shared_files/Board%20Decisions/353/v3532.pdf.
FLSA: overtime violations; third-party payroll manager, owners should have known
Illustrative; not controlling law. A doctrine in the legal system of "knew or should have known" applies
to many situations, and it did in this overtime pay case. Both the trial court and the appellate court
ruled that the owners were sophisticated business people who should have known that their
employees were not being paid for working over time in one or more of their fast-food outlets. Though
the owners pleaded lack of knowledge and good faith reliance on a third-party payroll manager, that
defense was rejected because they should have known of the violations, and delegating payroll
functions to a third party did not in this case qualify the owners for the FLSA good faith exception to
liability. [Note: Part of taking care of business is paying attention to business]. Chao v. Barbeque
Ventures, No. 08-1284, (11/22/08); 2008 U.S. App. LEXIS 24674; Internet:
Benefits: reduction, arbitration, union, retirees, current employees
Illustrative; not controlling law. The employer was compelled to arbitrate a union's claim of an unfair
labor practice (ULP) based on an allegation that the company violated a collective bargaining
agreement (CBA) by reducing retiree benefits. When the company informed the union that changes to
its medical benefits plan would affect both retirees and current employees, the union requested
arbitration before the company made the change. In response, the company cited cases stating a rule
barring such arbitration if the union had not obtained consent of the affected retirees. However, the
appellate court rejected that defense, reasoning that such a rule ignores that retiree benefits changes
might also affect current employees still covered by an existing CBA. International Brotherhood of
Electrical Workers, AFL-CIO Local 1245 v. Citizens Telecommunications Co., No. 06-16189 (9th
12/5/08); 2008 U.S. App. LEXIS 24640; Internet:
courts.gov/coa/newopinions.nsf/88D2D5D5730CAD3F882575160004319B/$file/0616189.pdf?
openelement.
Title VII: reverse discrimination, pretext, speculative evidence
Illustrative; not controlling law. Plaintiff worked for about five years as an administrative assistant in
the Office of the Dean of the Engineering College and during that time had received positive
performance evaluations. When a new dean arrived plaintiff was transferred to another department of
the university, the college's Outreach Coordinator. Her pay and status remained the same, but her
workload increased when another employee left on maternity leave and she had to assume that
person's duties in addition to her own. After expressing concern about that problem, her superior
assumed the additional duties. When first evaluated in her new position, she was rated as
unsatisfactory by her new manager, though evaluations by others and other input rated her as
satisfactory and also noted the lack of a job description and poor feedback to her so that she could
correct perceived deficiencies. Unfortunately, subsequent performance evaluations by her manager
continued to rate her as unsatisfactory. Her employment ended and she was replaced by a Hispanic
woman.
She filed discrimination claims, including reverse discrimination. The issue here was whether her
termination was because of Title VII prohibited factors or for other reasons not protected by anti-
discrimination laws [Note: perhaps academic politics or favoritism]. Apparently it was for other
reasons: both the trial court and the appellate court rejected her claims because her evidence of
unlawful discrimination was speculative and insufficient. She had contended that:
- the Engineering Department's staff was exclusively white and a new dean would want to diversify;
- the individuals who made the final decision not to renew her contract were themselves minorities;
and,
- the University employed its affirmative action guidelines in making its decision to hire the Hispanic
administrative assistant.
Hunter v. Rowan University, No. 07-2300 (3rd Cir., 11/12/08); 2008 U.S. App. LEXIS 23423.
Title VII: failure to hire, discrimination, insufficient evidence
Illustrative; not controlling law. The applicant for a state trooper position had been found initially
qualified after a background check, but about eight months after he was hired the employer
determined another background check was necessary because of errors and omissions on his
application form and poor character reviews by his relatives and former employer. Summary judgment
in favor of the employer was affirmed on appeal because it was found that the employer had a valid
business reason (rather than a discriminatory one) for terminating him. Further, when opposing a
motion for summary judgment, a party (in this case, the plaintiff) "may not solely rely on his own
allegations" but must presenting evidence to rebut the State's (the employer) evidence, which would
have been, for example, "such as an affidavit… from any of the references" mentioned in the State's
report that it relied on in making the decision not to hire him. Gaston v. New Jersey, No. 08-1831 (3d
Cir., October 30, 2008); 2008 U.S. App. LEXIS 23576; Internet, [Note: But listed as "not to be
published as authority", so read it only for its reasoning.]: /eg.nsf/id/pdon-7l6n2w/$File/gaston.pdf.
FMLA: leave eligibility, "for the intended purpose of the leave", fraud, honest suspicion, investigation,
interference with leave
Illustrative; not controlling law. The employer honestly suspected the employee's use of intermittent
medical leave on some occasions was not actually for her migraine headaches. FMLA leave must be
"for the intended purpose of the leave". The private investigator hired by her employer to check on
whether her leave may be used for fraudulent purposes confirmed she had been absent from work
because she mowing lawns for her husband's lawn-mowing service. Fired for making fraudulent
FMLA leave claims, she sued on a claim of interference with FMLA leave rights and lost. Such
investigation conducted on an honest belief of misuse of FMLA leave is not interference prohibited by
the act because it revealed she was not using leave for which the FMLA was intended. Vail v.
Raybestos Products Company, No. 07-3621, 533 F.3d 904 (7th Cir., 7/21/08); 2008 U.S. App. LEXIS
15384; 184 L.R.R.M. 2718; 156 Lab. Cas. (CCH) P35,457; 13 Wage & Hour Cas. 2d (BNA) 1537;
Internet from the Public Library of Law: /Pages/Login.aspx?
ReturnUrl=%2fPages%2fSecure%2fDocument.aspx%3fd%3dakoJNPXuLNsrpofURmSUgQ%253D%25
[Warning: Consult with legal counsel or an experience, qualified human resources expert before
proceeding with such a course of action.]
Title VII: national origin, hostile work environment, supervisor, definition
Illustrative; not controlling law. Who is deemed to be a supervisor in order for an employer to be
strictly liable for a hostile work environment? An employee who merely has the authority to oversee
an individual's work performance is not necessarily a supervisor for purposes of supporting a hostile
work environment claim. Under Title VII, a supervisor must have the authority to "directly affect the
terms and conditions of the plaintiff's employment," which would include the power to hire, fire,
promote, or demote. Because the employee about whom hostile work environment (racist comments
and treatment) claim was made did not have that authority, he thus was not a supervisor for the
purposes of strict liability of the company for creating a hostile work environment. And if such a
person is not a supervisor and if an employer neither does not know nor should not have known of a
hostile work environment between coworkers, then it may not liable. Further, in this case the worker
was validly discharged for substandard performance. Andonissamy v. Hewlett-Packard Company,
Nos. 07-2387 and 07-2390 (7th Cir., 11/7/08); 2008 U.S. App. LEXIS 23711; 104 Fair Empl. Prac.
Cas. (BNA) 1253; 14 Wage & Hour Cas. 2d (BNA) 328; Internet for the Public Library of Law:
/Pages/Login.aspx?d=44wIeKWnSguzDLaAdUDQvQ%3d%3d&l=Cases. [Warning: Consult with legal
counsel or an experience, qualified human resources expert about this kind of situation.]
Title VII: Hostile work environment, evidence of harassment of other workers but not witnessed by
claimant
Illustrative; not controlling law. Though some offensive conduct and language were not experienced
by the claimant, evidence of or testimony about it should have been admitted into evidence at trial as
demonstrating the atmosphere in the workplace: "Hostile conduct directed toward a plaintiff that might
of itself be interpreted as isolated or unrelated to gender might look different in light of evidence that a
number of women experienced similar treatment". It tends to add credence to her claim, or show
harassment she believed was pervasive, or otherwise support her claim of a hostile workplace based
on her gender. Ziskie v. Mineta, No. 06-2060 (6th Cir., 1/14/08); 2008 U.S. App. LEXIS 23702;
Internet: courts.gov/opinion.pdf/062060.P.pdf.
Title VII: prior sexual harassment claim, separate adverse employment action, subsequent retaliation;
McDonnell Douglas, pretext
Illustrative; not controlling law. Claimant succeeded on gaining a jury trial based on the following
factors:
- previously reported sexual harassment on the employer's helpline,
- on the day of firing:
- told to by supervisor her the charges she brought were wrong and were costing the company,
- told her to hand him the store "keys and walk away and save us this embarrassment",
- she presented evidence that retaliatory conduct had increased up to that time (finding fault with her
performance in an apparent attempt to set her up for termination and told she would never survive the
performance improvement plan),
- showed that she was previously praised in her annual performance evaluation, and
- coworkers directly supervised by her stated she was a good manager.
Webb v. Starbucks Corp., No. 1:07-cv-271, 2008 WL 4891106 (W.D.N.C., Asheville Div. Nov. 12,
2008); Internet detailed article: /andrews/em/emp/20081126/20081126_webb.html. [Note: For a 10th
Circuit case, our jurisdiction, involving differences between the reasons for firing compared with
previous favorable performance evaluations, see this case below in the database: Platero v. Baumer,
No. 03-2167, 98 Fed. Appx. 819; 2004 U.S. App. LEXIS 10473 (10th Cir., May 27, 2004).]
ADA: regarded, fired for policy violations, summary judgment for employer
Illustrative; not controlling law. Written company policies are important. Here, the employee lost on his
claim of being regarded as disabled (he alleged preconception about a previous brain injury) because
his employers was found to have had a valid business reason for terminating him and his claim of
pretext failed to defeat the employer's defense. Brain injury was not the reason for his termination.
Rather, medical evidence indicated he could not perform the essential functions of his job because
opiates (Risperdal, Ativan and Lexapro) prescribed and taken impaired his ability to work safely for
himself and for the safety of coworkers. Written company policy was violated when he was taking
prescription and falsified a required company medical questionnaire. Further, evidence showed that in
recent months before his termination he was taking opiates that cause sleepiness and dizziness that
affected his operation to operate a train. He also admitted he had failed simulator tests to evaluate his
ability to operate a train. Kosmicki v. Burlington Northern & Santa Fe Railway Company, No. 08-1511
(8th Cir., 10/27/08); 2008 U.S. App. LEXIS 22310; Internet: courts.gov/opndir/08/10/081511P.pdf.S
ADA: regarded, broad range of jobs, summary judgment for employer affirmed
FMLA: retaliation, summary judgment reversed for trial
Illustrative; not controlling law. An maintenance technician work with power tools, heavy equipment,
electricity, etc., was found not to be regarded as disabled from a broad range of jobs, but only
disabled from his specific job, and the summary judgment in favor of his employer was affirmed.
However, the summary judgment in favor of his employer on his FMLA retaliation claim was reversed
because there was evidence upon which a reasonable jury could find in his favor: threats of firing if he
took FMLA leave. Daugherty v. Sajar Plastics, No. 05-02787 (6th Cir., 10/16/08); 2008 U.S. App.
LEXIS 21574; 2008 FED App. 0379P (6th Cir.); 21 Am. Disabilities Cas. (BNA) 200; 14 Wage & Hour
Cas. 2d (BNA) 231; Internet: courts.gov/opinions.pdf/08a0379p-06.pdf .
FMLA: calculating absenteeism rates
Illustrative; not controlling law. Read this case for an illustration of how an employer may properly
calculate FMLA absenteeism rates.
The employer used this formula:
No. of Non-FMLA Hrs. Missed ÷ (No. of Work Hrs. Scheduled - FMLA Hrs. Missed*)
* Treated as non-scheduled hours.
However, the Eighth Circuit Court of Appellate Appeals [Note: our jurisdiction is the 10th] stated the
correct method is as follows:
No. of Non-FMLA Hrs. Missed ÷ (No. of Work Hours Scheduled, Including No. of FMLA Hrs. Taken)
Amanda Dickinson v. St. Cloud Hospital, (8th Cir., 2008); no further opinion citation information
available as of 11/20/08; but see Keasey v. Federal Express Corp., No. 03-228 slip op. (W.D. Mich.
Dec. 9, 2003), which approved a similar manner of calculation., and 29 C.F.R. § 825.220(c).
Title VII: EEOC, protected activity, evidence, illegal disclosure by claimant of unredacted confidential
medical records; retaliation, "participated in any manner", disparate treatment
Controlling law. Title VII broadly protects those who participate in claims. An employee who sent
copies of confidential medical records to the EEOC to substantiate her retaliation claim was held to
be engaged in a protected activity, despite the illegality of that act. However, her claim failed because
the appellate court found her employer's defense of valid business purpose as the basis for
terminating her employment was credible and her pretext claim failed.
Vaughn v. Epworth Villa, No. 07-6005, 537 F.3d 1147 (10th Cir., 8/19/08); 2008 U.S. App. LEXIS
17674; 104 Fair Empl. Prac. Cas. (BNA) 135; 91 Empl. Prac. Dec. (CCH) P43,305; Internet via
FindLaw: /data2/circs/10th/076005p.pdf
Bernadine Vaughn, a 40 year-old African-American female, sustained an adverse employment action

for errors in medical charts. She claimed age and rage discrimination as evidenced by disparate
treatment, i.e., younger white employee was not disciplined for charting errors. After her charge was
filed with the EEOC, she tried to demonstrate that disparate treatment with several pages of
unredacted medical records that included confidential details of medical treatment, a violation of
company policy. She was fired and claimed retaliation in violation of Title VII protection provisions.
Protected activity, "participated in any manner":
Preliminary proof of retaliation under Title VII requires that:
1) she engaged in a protected activity,
2) she suffered an adverse employment action, and
3) there was a causal connection between her protected activity and the adverse employment action.
At trial the judge ruled that disloyal or dishonest conduct in a Title VII proceeding presumptively is
illegal and unprotected unless the claimant has no other reasonable way to support her claim. It said
her more sensible choices would have been (1) to redact [black out] certain identifying parts of the
records, or (2) obtain the patient consent, or (3) submit an affidavit in the summary judgment
proceeding explaining that other employees who made charting errors weren't disciplined. Based on
this the trial judge ruled that she did not engage in protected activity and could not establish her
preliminary case of retaliation.
In disagreeing with the trial judge, the appellate court stated that Title VII is unambiguously clear that
retaliation is prohibited when an employee has "participated in any manner in an investigation
proceeding or hearing". It said that the "participation clause" provides "broad coverage" to employees.
As such, it rejected the trial court's requirement to resort only to honest and loyal conduct unless she
proves it was necessary to resort to other means.
Thus, her disclosure of confidential medical records was protected even if dishonest or disloyal.
Next, her employer cited its policies regarding protection of medical record and patient confidentiality
as a valid business reason for firing her.
Finally, she had to prove her employer's reason was a pretext. She contended her employer wasn't
required to fire her for that action and that it was having trouble managing its records. After
considering the evidence from the trial court, the appellate court found it was plausible that she could
be fired for that behavior, and it ruled against her on the pretext issue.
As to her claim of disparate treatment, proof showed the younger coworker wasn't disciplined
because the records in that incident did not contain patient medical information that would have been
a violation of federal or state law.
Retaliation:
However, despite prevailing on the protected activity portion of her claim, her retaliation claim was
dismissed because the appellate court determined her employer had a valid business reason for firing
her because she violated company policies against disclosing confidential medical information..
[Note: Concerning "participated in any manner", see the recent 10th circuit case in this collection of
Kelley v. City of Albuquerque, No. 05-2309, No. 05-2317 (10th Cir., 9/17/08); 2008 U.S. App. LEXIS
19706; Internet via FindLaw: /data2/circs/10th/052309p.pdf. That phrase and protection are gaining
attention in retaliation litigation.]
ADA: reasonable accommodation, functional capacities evaluation; collective bargaining agreement

(CBA); retaliation
Controlling law. An employee returning for a workers' compensation hernia injury was examined by
an outside clinic for his functional capacities for lifting, pushing and pulling. Though positions were
open, they were governed by the CBA, which can control which jobs can be filled. Because of the
CBA, the employer could not provide an accommodation and did not fail to provide one. The
employee's adverse employment action, termination, from another position was found to be validly
based on a number of corrective action warnings for poor performance. Roberts v. Cessna Aircraft
Co., No. 07-3133 (10th Cir. unpublished opinion, 8/10/08); 2008 U.S. APP LEXIS 17645; Internet:
/lx1/caselaw/freecaselaw?
action=OCLGetCaseDetail&format=FULL&sourceID=gdje&searchTerm=eUie.XiEa.UYeO.HbHX&search
Independent contractor: unlicensed, dangerous work, comparative negligence, duty of general

contractor, public policy
Controlling law. As a general rule, one who hires an independent contractor is not liable for physical
harm caused to another or others by the negligent acts of the independent contractor. However, this
case presented a new issue in NM: Is a general contractor liable for the injuries or death of an
unlicensed independent contractor hired to perform dangerous work for which the independent
contractor is neither licensed nor qualified? The answer is yes, and the negligence of both is to be
compared by the jury in apportioning damages to be awarded to the plaintiff or the plainiff's
survivor(s).
Lesson: Trying to cut corners and costs by attempting to circumvent licensing and safety laws can
have tragic and costly consequences.
Tafoya v. Rael, 2008-NMSC-057, 2008 N.M. LEXIS 519; Internet: /opinions/VIEW/08sc-057.html
A licensed general contractor with proper permits had completed an apartment renovation except for
the sewer line from the apartment to the city sewer line. That city line was located close to the
apartments and close to the state highway into the city. Such a connection required excavation of a
trench on the state highway right-of-way and permits from the State Transportation Department, a
traffic study before that permit could be issued, traffic control during the process, and compliance with
federal and state laws and industry safety standards. Doing the job in compliance with applicable
laws and safety requirements would have cost at least $10,000. Instead, the general contractor hired
an unlicensed independent contractor to excavate and for only $3,800. OSHA regulations were
violated: (1) failing to dig with the required slope, (2) failing to brace the dirt sides of the trench, (3)
failing to put the excavated dirt at least two feet from the trench, and (4) failing to provide traffic
control. The trench collapsed and the independent contractor suffocated when the dirt collapsed over
him.
The purpose and public policy of the NM Construction Industry Licensing Act is "to promote the
general welfare of the people of New Mexico by providing for the protection of life and property, and
further, to do so by "examination, licensing and certification of occupations and trades within the
jurisdiction . . . to encourage the highest quality performance and to require compliance with
approved codes and standards." Avoidance of licensing requirements is prohibited and punishable.
Negligence law is based on a duty of care to others, and violation of public policy and statutes set
duties of care (e.g., traffic laws, health codes, construction codes, etc.). Accordingly, avoiding the
construction licensing laws was a violation of the general contractor's duty of care to others, in this
case the unlicensed independent contractor.
Negligence law also allows comparison of fault of the parties in a lawsuit. Thus, this case is
remanded (returned) from the NM Supreme Court to the trial for court for a jury to determine the
amount of damages to award the widow and family, and then determine the percentage of fault of the
general contractor and the independent contractor to determine the amount of damages to be paid by
the general contractor. [Note: For example, if the jury set damages at $900,000 and set the
percentage of fault of the contractors at 50% each, then the general contractor would be liable for
$450,000. This would be the same if it were a motor vehicle accident, swimming pool, etc.]
ADEA: direct evidence, reduction in force (RIF) justification, pretext
Title VII: gender, age, pretext not proved
Controlling law. The ADEA claim of a 48 year-old female succeeded because she was told by her
supervisor that she was designated as surplus because of her age. However, the ADEA and Title VII
claims of that claimant and two of her coworkers failed because the employer's reasons for their RIF
layoffs were not shown to be a pretext to cover up discrimination. Recent evaluations of those
employees showed they were in the correct group of employees selected for layoff. Selection
rankings were based on performance, skills, experience and training. Also, the claimants' statistical
evidence was found not to support their claim of pretext because that evidence did not take into
account non-biased reasons for gender disparity. Sanders v. Southwestern Bell Telephone, LP, No.
06-5199 (10th Cir., 10/15/08); 2008 U.S. App. LEXIS 21568; 104 Fair Empl. Prac. Cas. (BNA) 833;
Internet, Public Library of Law: /Pages/Login.aspx?
d=HZ%2fxzDfIG075SVAD4AKPzQ%3d%3d&l=Cases. [Note: Your attention is invited to a RIF case
briefed earlier in this collection for an example of how the RIF evaluation plan was questioned
because it was at odds with the history of favorable periodic evaluations of a 40 year-old, Navajo
female employee; Platero v. Baumer, No. 03-2167, 98 Fed. Appx. 819; 2004 U.S. App. LEXIS 10473
(10th Cir., May 27, 2004).]
FLSA: overtime pay, "independent contractors" not actually independent
Illustrative; not controlling law. An independent contractor must actually be independent. This group of
group of insurance "sales leaders" was dependent on the company for which they provided services
because it controlled how much they might earn. Consequently, they were deemed to be employees
of the company who were entitled to overtime pay. Though the workers had some flexibility of hours
and daily schedule, the company controlled opportunities for compensation. The court used the
following five criteria in determining if the workers were actually independent contractors:
(1) the degree of control exercised by the company;
(2) the extent of the relative investments of the workers and the company;
(3) the degree to which the workers' opportunity for profit or loss is determined by the company; (4)
the skill and initiative required for performing the job; and
(5) the permanency of the relationship.
Deciding that the company exercised significant control, the workers were held to be employees
rather than independent contractors, and thus entitled to overtime pay. The third criterion listed above
may have been the most persuasive. Hopkins v. Cornerstone America, No. 07-10952 (5th Cir.,
10/13/08); 2008 U.S. App. LEXIS 21406; Internet: courts.gov/opinions/pub/07/07-10952-CV0.wpd.pdf.
FMLA: retaliation, Burlington standard
Illustrative; not controlling law. This case adds to our knowledge of what might amount to retaliation
under Burlington Northern & Northern Santa Fe Railroad Co. v. White, 548 U.S, 53 (2006). Under 29
U.S.C. § 2615(a)(1) entitles an employee to be restored to the same or similar duties and benefits
after returning from FMLA leave. Also such employees are protected from interference with their leave
and against discrimination or retaliation. In this case the employee returned and learned that the eBay
account had been taken from him, resulting in a loss of approximately $12,000 to $20,000 in annual
compensation. Summary judgment in favor of the employer was reversed on the grounds that a
reasonable jury could infer from the circumstances that this employee had suffered an adverse
employment action and had been discriminated against for exercising his rights under the FMLA. An
email from his supervisor indicated his supervisor was frustrated by the employee's absences
Suspicious timing of the adverse employment action was also a factor considered by the appellate
court. The employer had not taken such action with other employees who had taken FMLA leave.
Finally, Inconsistent explanation about the reasons for the adverse employment action caused the
appellate court to disbelieve the employer. McArdle v. Dell Products LP, No. 07-51159, (5th Cir.,
9/22/08); 2008 WL 4298840; Internet: courts.gov/opinions/unpub/07/07-51159.0.wpd.pdf.
ADA, ADAAA: Major life activity, coming amendments; reasonable accommodation
Controlling law, but probably not for long. Remember, at the beginning of 2009 the ADA
Amendments Act becomes effective to liberalize and broaden definitions and other important factors.
Review the notice of the ADAAA provided earlier in this collection, and then read the specific
amendments to the ADA and discuss them with your employment law legal counsel or other human
resources specialists. Here is a URL that will take you to the text of the ADAAA:
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?
dbname=110_cong_bills&docid=f:s3406pcs.txt.pdf.
At issue was whether driving is a "major life activity". Under the current version and interpretation of
the ADA, it is not. However, after the ADAAA goes into effect, things probably will change.
Kellogg v. Energy Safety Servs. Inc., No. 07-8072 (10th Cir., 10/15/08); 2008 U.S. App. LEXIS 21567;
Internet: http://ca10.washburnlaw.edu/cases/2008/10/07-8072.pdf.
Ireane Kellogg, safety technician, claimed she was discharged because her employer regarded her
as disabled after she was diagnosed as suffering from complex partial seizures. Her employer
repeatedly refused over a considerable period of time to return her to her position unless her
physician gave her a "full release" because Oilind considered it "safety sensitive".
Energy Safety Services, Inc., d/b/a Oilind Safety LLC, "is an industrial safety company that provides
safety-related services, such as training and environmental monitoring, to industrial customers. It also
rents, sells, and services safety equipment, such as gas monitors and air packs." Driving was part of
her duties. As to whether that was a "major life Activity", the appellate court stated:
But driving is, literally, a means to an end. The activities enumerated by the EEOC-"caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working"-are all
profoundly more important in and of themselves than is driving.
[Note: We can anticipate this observation by the appellate court will no longer be valid in the future.]
Because the appellate court could not determine from the trial court record if the verdict was based
on an incorrect legal theory in the jury instructions, it set aside the verdict and remanded [sent back]
the case for a new trial.
NLRA, LMRA: NLRA § 7; LMRA § 301; preemption, exception; whistleblower, defamation, intentional
infliction of emotional distress (IIED), retaliation, loss of consortium
Controlling law. Summary judgment in favor of the employer was affirmed by the NM Court of
Appeals. In the interest of certainty in national labor relations problems, the National Labor Relations
Act and the Labor Management Act preempt from state litigation most labor union disputes, which is
what happened here because the conduct complained of did not rise to a level of severity or
egregiousness to qualify for exemption from preemption by federal law.
Weise v. Washington Tru Solutions, LLC, 2008-NMCA-121, certiorari not applied for; 2008 N.M. App.
LEXIS 96; Internet: /opinions/VIEW/08ca-121.html
A husband and wife alleged conduct by the husband's employer as a basis for their claims of
discrimination and retaliation related to; whistleblower, defamation, intentional infliction of emotional
distress (IIED), retaliation, and loss of consortium. These claims failed because the facts they alleged
did not rise to the level of "outrageous" behavior necessary to be brought in state court.
{13} Marvin may have suffered distress as a result of WTS's actions, but "[e]very employee who
believes he has a legitimate grievance [has] some emotional anguish occasioned by his belief that he
has been wronged." Buscemi v. McDonnell Douglas Corp., 736 F.2d 1348, 1352 (9th Cir. 1984)
(internal quotation marks and citation omitted). Based on the allegations, Marvin was treated
differently than other employees- but different treatment does not establish extreme and outrageous
behavior.
His defamation claim also failed.
{20} The United States Supreme Court has also considered state defamation claims in the context of
labor disputes. In Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53, 55-57
(1966), the Supreme Court considered whether a manager could maintain an action for libel based on
allegedly defamatory statements published by a union and its officers during a union-organizing
campaign. The Linn Court acknowledged that debate about the federal policy encompassed in the
NLRA "'should be uninhibited, robust, and wideopen, and that it may well include vehement, caustic,
and sometimes unpleasantly sharp attacks.'" Id. at 62 (quoting New York Times Co. v. Sullivan, 376
U.S. 254, 270 (1964)). Noting that state libel suits could obstruct this federal policy by inhibiting free
debate during labor disputes, the Court adopted the actual malice standard articulated in New York
Times Co. in order to determine whether libel published in the context of a labor dispute would be
actionable. Linn, 383 U.S. at 63-65. Under this standard, a state remedy for libel in the context of a
labor dispute is limited to cases in which the plaintiff can show the following: (1) that the defamatory
statements "were circulated with malice" and (2) the statements caused harm beyond the defamation
itself such as "injury to reputation, consequent mental suffering, alienation of associates, specific
items of pecuniary loss, or whatever form of harm would be recognized by state tort law." Id. at 65.
His retaliatory discharge was rejected because that applies on to at-will employees, and he was
covered by a CBA
The LMRA claim failed because that act covers labor management relations, and no of his allegations
supported them
See Wooddell v. Int'l Bhd. of Elec. Workers, Local 71, 502 U.S. 93, 98 (1991) (stating that "a suit
properly brought under [Section] 301 must be a suit either for violation of a contract between an
employer and a labor organization representing employees in an industry affecting commerce or for
violation of a contract between such labor organizations"); cf. Crenshaw v. Allied Chemical Corp., 387
F. Supp. 594, 598 (E.D. Va. 1975) (holding that an employee can bring a suit for wrongful discharge
under Section 301 of the LMRA if the employee is claiming that the union "breached its duty of fair
representation by refusing to fairly, impartially, or honestly represent an employee's interests in a
collective bargaining agreement dispute resolution proceeding"). None of Plaintiffs' claims include
allegations that WTS breached its obligations under the CBA, nor do they claim that PACE failed to
adequately represent Marvin's interests. We have already determined that all of Plaintiffs' claims were
properly dismissed. As a result, we need not conclude that Plaintiffs' claims might also be preempted
by Section 301 of the LMRA.
Because his state law claims were held to be preempted by federal law, his wife's related claim of
loss of consortium also failed.
Employment contracts: covenant not to compete, trade secrets
Controlling law. The covenant not to compete for a period of three years stated it was to go into
effect upon termination, and the ruling of the trial judge that it was to as o the date of the judgment
was erroneous. Because the three years had elapsed since her termination, the trial judge's ruling
was no longer relevant and the appellate court made no further ruling on it. The records of her
employer that she copied from the company system to her home computer were confidential
information and trade secrets of he employer, taken in violation of NM's Uniform Trade Secrets Act,
NMSA 1978, §§ 57-3A-1 through 7 (1989), and the damages award was affirmed. Rapid Temps, Inc.
v. Lamon, 2008-NMCA-122, certiorari not applied for; 2008 N.M. App. LEXIS 92; Internet:
/opinions/VIEW/08ca-122.html.
FLSA: exemption, salary, hourly, frequent changes, summary judgment
Controlling law. Which employees are in hourly status and entitled to overtime pay under the Fair
Labor Standards Act, and which are in salaried status and not entitled to it? Salaried professional and
certain other types of highly paid executives can be exempted by their employers from the overtime
pay provision of the FLSA. However, if an employer treats an exempt employee like an hourly
employee it may lose its exemption of that employee from the FLSA and have to pay overtime pay.
Further, in certain instances it may lose its exemption for all other similarly classified employees.
However, in this case only two of the pharmacists may have been treated sufficiently like hourly
employees to be classified as hourly and entitled to overtime pay.
Archuleta v. Wal-Mart Stores, Inc., No. 07-1065 (10th Cir., 10/6/08) U.S. App. LEXIS 21014; Internet:
/verdicts/case.asp?n=07-1065&s=&d=37509; and also see the previously decided case of Archuleta
v. Wal-Mart Stores, Inc., No. Nos. 03-1432 and 03-1473, and 03-1434 (10th Cir., 2008); 395 F.3d
1177; 2005 U.S. App. LEXIS 1567; 150 Lab. Cas. (CCH) P34,949; 10 Wage & Hour Cas. 2d (BNA)
481; Internet: http://ca10.washburnlaw.edu/cases/2005/02/03-1432.htm
Judge Ebel succinctly and aptly summarized the case as follows:
Although the Fair Labor Standards Act ("FLSA") generally requires an employer to pay its employees
at a rate of one and one-half times their regular rate of pay for any time worked in excess of forty
hours in a given workweek, it exempts from this requirement "executive, administrative or
professional" employees. At issue here is whether full-time pharmacists working for Wal-Mart Stores,
Inc. from 1993 through 1998 fell within this exemption. In arguing that they did not, Plaintiffs contend
that, although Wal-Mart purported to pay its pharmacists as salaried professionals, it actually changed
their salaries * * * so frequently that it treated them, in effect, as hourly non-exempt employees.
Because Plaintiffs have presented sufficient evidence to establish a genuinely disputed issue of
material fact as to two pharmacists, we REVERSE the district court's decision to grant Wal-Mart
summary judgment on those two claims and REMAND to the district court for further proceedings. In
all other respects, we AFFIRM
Title VII: consensual sex, retaliation, opposition to action prohibited by Title VII
Illustrative; not controlling law. Title VII's prohibition of retaliation against a person seeking protection
of the act. The Seventh Circuit [our jurisdiction is the 10th Circuit] held that the complainant could not
support a claim of retaliation because he did not have a "reasonable belief" that he had been sexually
harassed by his supervisor - with whom he had been having consensual sex. Tate v. Executive
Management Services, Inc., No. 07-2575 (7th Cir., 10/1008); 2008 U.S. App. LEXIS 21193.
FMLA: leave may extend probationary period
Illustrative; not controlling law. The contract of an employee off of work on FMLA leave was not
renewed because he failed to timely complete his performance improvement plan. The federal trial
judge dismissed his case for the reason that he should not have been granted the FMLA leave
because "no reasonable jury could find that he * * * stood in loco parentis in this situation." [Note:
"loco parentis" means like a parent.] The appellate court reinstated his case because it believed that a
jury might find him to have fit that capacity. Further, it analyzed his FMLA interference and retaliation
claims and found issues of fact that precluded dismissal and required the case to be heard by a jury.
Martin v. Brevard County Public Schools, No. 07-11196 (11th Cir., 9/30/08); 2008 U.S. App. LEXIS
20580; Internet: courts.gov/opinions/ops/200711196.pdf.
Union: duty of fair representation, Albuquerque Police Department (APD), NM Public Employees
Bargaining Act (NMPEBA), prohibited practice complaint (PPC), collective bargaining agreement
(CBA)
Controlling law, but essentially limited to the specific facts of this APD case. However, it is important
to remember that a union has a legal duty of fair representation of its members, though that duty is
breached only if it acts arbitrarily, fraudulently of in bad faith as to its members. Careful attention by
an employer is important because if employees with a greivance are excluded from a union
settlement, that could be found to be a basis for invalidating that agreement and reopening the entire
dispute. Employers need to ensure that all possible aggrieving employees are accounted for and
considered before entering into a such settlement.
Granberry v. Albuquerque Police Officers' Assn., 2008-NMCA-094, Internet:

http://209.85.173.104/search?q=cache:20C3znGcOH5J:/cgi-bin/dnloadit.cgi/opinions/08ca-
094.wpd+2008-NMCA-094&hl=en&ct=clnk&cd=1&gl=us
Promotions of two sergeants to lieutenant were disputed by the union on allegations that the city had
reinterpreted rules and regulation governing the promotion process. The union filed a PPC under the
NMPEBA claiming that the CBA had been violated because two "ineligible" sergeants had been
allowed to participate in the promotion process. Before the PPC hearing, the union and city settled
the dispute involving four Anglo male sergeants. Granberry (African-American male over age 40) and
Sanchez (Hispanic female) were for some reason excluded from the settlement.
At this point, the issue was whether excluding that exclusion was (1) "arbitrary" or (2) "without a
rational basis or explanation".
- Arbitrary: The appellate court found that the issue of arbitrariness was inapplicable because the
PPC in question was more like a complaint about promotion that needed to be pursued through the
chain of command, which the two sergeants did.
- Rational explanation: That left for jury trial the factual issue of whether the union had a rational
explanation for the exclusion.
FCRA: Fair Credit Reporting Act, what is a consumer report?
Controlling law, but discuss this close decision with counsel before relying on it. In these cases
involving distinctions only a lawyer could love, be very cautious. Communication of information from a
former employer based solely on its firsthand experience with a former employee who is an applicant
with another employer won't be considered a "consumer report" covered by FCRA, even if that
"firsthand" experience involves third parties [Did we all follow that?].
Practical consideration: Check with legal counsel before proceeding so that y0u will have a clear
understanding of what can and cannot be done.
Owner-Operator Indep. Drivers Ass'n. v. USIS Commercial Servs., No. 06-1430 (10th Cir., 8/19/08);
537 F.3d 1184; 2008 U.S. App. LEXIS 17635; 28 I.E.R. Cas. (BNA) 1; Internet, The Public Library of
Law: /Pages/Login.aspx?d=aRgOc0Kx0%2fTJu9TWj5%2bAGA%3d%3d&l=Cases
To refresh our recollections, a "consumer report" is defined by FCRA as any communication bearing
on a consumer's character, general reputation, personal characteristics, or mode of living used that
would be used to establish eligibility for employment. Excluded by the act are "any report containing
information solely as to transactions or experiences between the consumer and the person making
the report", i.e., first-hand experiences.
In this case, a trucking company's experience with a driver which might involve third parties did not
mean they were not first-had experiences of the company, and thus not "consumer reports" covered
by FCRA.
Title VII; Civil Rights Act of 1866; Section 1981: racial discrimination, retaliation, proof required
Controlling law. However, this case illustrates the error of a plaintiff's attorney proceeding under the
wrong law and the employee loosing the case for lack of proof. Had the Plaintiff sued only under Title
VII, she might have prevailed. Plaintiff's attorneys, curious defense attorneys and curious human
resources practitioners may want to read the case, but no brief accompanies this note. Carney v. City
& County of Denver, No. 1490, 543 F.3d 1269 (10th Cir., 7/2/408); Internet, The Public Library of Law,
/Pages/Login.aspx?d=Uyd0YMM8glLR5V2TUQlbaw%3d%3d&l=Cases.
ADA, ADEA: disability leave, discrimination, retaliation; summary judgment for employer affirmed
Controlling law. The appellate court found no evidence that could reasonably link discriminatory
conduct by past supervisors to the decision by recent supervisors to terminate the employee low
ranking in current performance evaluations. Too much time had passed and supervisors had
changed. There was no proof past that negative acts and attitudes of previous supervisors were
known by the current supervisors, and the reason given by the current supervisors for termination in
the reduction in force (RIF) was legitimate rather than a pretext. Goldstein v. Sprint Mgmt. Co., No.
06-3379 (10th Cir., 7/30/08); 2008 U.S. App. LEXIS 16271; 103 Fair Empl. Prac. Cas. (BNA) 1699; 20
Am. Disabilities Cas. (BNA) 1623; Internet: http://209.85.173.104/search?
q=cache:QLzJ1z71MjgJ:ca10.washburnlaw.edu/cases/2008/07/06-
3379.pdf+Goldstein+v.+Sprint+Mgmt.+Co.,+No.+06-3379&hl=en&ct=clnk&cd=1&gl=us.
FMLA: 1250 hours, strictly enforced, importance of accurate documentation
Illustrative; not controlling law. The statutory number of1250 hours was held to be absolute. A USPS
employee with numerous attendance policy violations and "terminations" was denied FMLA eligibility
because she had worked only 1248.8 hours in the preceding 12 months. The district court dismissed
her claim, which was upheld on appeal. This was a close call because she had been ordered to clock
out two hours early for alleged insubordination. She clocked out as ordered, but complained to the
USPS Dispute Resolution Specialist that she had been wrongly accused. Though informed of her
rights to file a formal grievance, she failed to do so within the required time. Because of accurate
documentation by USPS of the times worked, the appellate court upheld her ineligibility for FMLA
leave, small as the shortfall of hours worked turned out to be. Pirant v. U.S. Postal Service, No. 07-
1055 (7th Cir., 9/4/08); 2008 U.S. App. LEXIS 18912; Internet, MoreLaw: /verdicts/case.asp?n=07-
1055&s=IL&d=37125.
FMLA: computing 12 weeks; eligible period - "calendar year", "rolling year", "fiscal year", "carry over"
Illustrative; not controlling law. How the 12 weeks is to be calculated and applied makes for difficult
administrative decisions. Be sure to check with local New Mexico legal counsel about this case before
acting upon it.
Three major considerations for eligibility are "calendar year" "rolling year" or "fiscal year". Candace
Davis's employer used the calendar year. [As usual, the full text of this appellate opinion can be
retrieved through the citations or URL listed below.] Suffering from the serious medical condition of
depression, that condition spanned calendar years, and the issue was whether her continuing
condition carried over to the next year or if she had to accumulate another 1250 hours within a 12
month period before she could again qualify for FMLA leave. Her FMLA leave request was denied by
her employer until she had accumulated another 1250 hours within a 12 month period, i.e., it
contended it did not allow carry over. The Michigan federal trial court agreed with the employer, and
the federal appellate court affirmed the ruling of the trial court. ]Read the explanation starting toward
the bottom of page 4 of the PDF document.] Davis v. Michigan Bell Telephone Co., No. 07-1512 (6th
Cir., 9/29/08); 2008 U.S. App. LEXIS 20438; 2008 FED App. 0353P (6th Cir.); Internet:
/data2/circs/6th/071512p.pdf.
ADA: ADA Amendments Act of 2008 (ADAAA), lower standard of disability proof, broader and more
liberal interpretation
Controlling law effective at the beginning of 2009. For years many of us have been hoping that the
problems with the FMLA and the FLSA would be solved by Congress, but instead the Congress has
amended the ADA. Here is a URL for the text of the bill: http://frwebgate.access.gpo.gov/cgi-
bin/getdoc.cgi?dbname=110_cong_bills&docid=f:s3406pcs.txt.pdf
The ADAAA overrules two United States Supreme Court cases and also liberalizes the interpretation
of the ADA:
- Sutton v. United Air Lines, Inc., (1999), held that A determination of disability could consider
mitigating measures, such as medication, glasses, etc., generally used by much of the population.
That case is legislatively overruled by the ADAAA, which states that determination of whether a
condition substantially limits an individual's major life activities must be made without regard to the
effects of mitigating measures. However, the ADAAA specifically excludes eyeglasses and contact
lenses from the list of mitigating measures that should not be considered.
- Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, (2002), interpreted the term "substantially
limits" to impose too high of a standard, and current EEOC regulations defined the term "substantially
limits" as "significantly restricted". Legislatively overruling Toyota and the EEOC, the ADAAA states
that determining whether an individual's impairment is a disability under the ADA "should not demand
extensive analysis."
- Interpretation is liberalized by stating that the definition of disability "shall be construed in favor of
broad coverage of individuals."
Title VII, NMHRA, Class Action: protected activity, assisting in a discrimination claim; constitutional
law, equal protection; discrimination, disparate treatment, similarly situated; retaliation; summary
judgment
Controlling law. This 10th Circuit Court of Appeals case applies in our jurisdiction. Though it deals
primarily with legal procedural matters primarily of interest to attorneys, an important portion of this
case for human resources professionals is the discussion of protected activity when an employee
participates to assist another employee in making a discrimination claim.
Kelley v. City of Albuquerque, No. 05-2309, No. 05-2317 (10th Cir., 9/17/08); 2008 U.S. App. LEXIS
19706; Internet via FindLaw: /data2/circs/10th/052309p.pdf
Concerning protected activity for an employee assisting a fellow employee in making a discrimination
claim, the issue was whether this extended to protecting an attorney providing that assistance. It
does. The appellate court dealt first with Title VII protection and then with protection under the NM
Human Rights Act.
Title VII: The court stated:
Under Title VII it is "an unlawful employment practice for an employer to discriminate against any of
his employees or applicants for employment . . . because he has made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42
U.S.C. § 2000e-3(a) (emphasis added). The "explicit language" of Title VII's "participation clause is
expansive and seemingly contains no limitations." Deravin v. Kerik, 335 F.3d 195, 203 (2d Cir. 2003).
***
We conclude that the plain language of § 2000e-3(a) provides anti-retaliation protection for a defense
attorney who represents an alleged violator of discrimination laws in an EEOC mediation. A defense
attorney who later alleges retaliation by her employer is "any . . . employee." 42 U.S.C. § 2000e-3(a)
(emphasis added). Additionally, the phrase "participated in any manner in . . . [a] proceeding," id.
(emphasis added), covers the act of representing a client in an EEOC proceeding. The term "any"
carries an expansive meaning when, as here, it is used without limitation. United States v. Gonzales,
520 U.S. 1, 5 (1997). When the term is given its natural effect in this statutory context it relates to all
types of participation. See Merritt, 120 F.3d at 1186 ("Congress did not add any language limiting the
breadth of that word, so 'any' means all." (some internal quotation marks omitted)). By representing
the City in the 2000 EEOC mediation, therefore, Ms. Kelley "participated" in a proceeding under Title
VII.
NMHRA: As for state law, the appellate court stated that:
* * * "In interpreting [the New Mexico] Human Rights Act, [the New Mexico Supreme Court has]
previously indicated that it is appropriate to rely upon federal civil rights adjudication for guidance . . .
." Gonzales v. N.M. Dep't of Health, 11 P.3d 550, 557 (N.M. 2000). Similar to Title VII, the NMHRA
covers "participat[ion] in any proceeding" under the NMHRA. N.M. STAT. ANN. § 28-1-7(I)(2)
(emphasis added). n13 Like § 2000e(f) of Title VII, the plain language of § 28-1-7 is broad enough to
provide protection to a defense attorney participating in a mediation. For the same reasons offered in
our analysis of Title VII, therefore, we conclude that NMHRA's retaliation provisions extend to Ms.
Kelley under the facts of this case.
FMLA: amount of information necessary for leave
Illustrative; not controlling law. Merely calling in sick, but not providing additional necessary
information, is insufficient notice of a "serious health condition" under the FMLA. De la Rama v. Illinois
Dept. of Human Services, No. 07-1156 (7th Cir., 9/2/08); 2008 U.S. App. LEXIS 18756; Internet,
Public Library of Law: /verdicts/case.asp?n=07-1156&s=IL&d=37132.
Title VII, ADEA, Section 1981: race, sex, age; retaliation, protected activity, adverse employment
action, causal connection; hostile work environment, evidence, neither severe nor pervasive;
discriminatory termination, no pretext; summary judgment for employer
Controlling law. Our 10th Circuit requires substantial evidence of each essential element of proof of a
legal theory in order for such an issue to be presented to a jury. Employers will not be held liable for
isolated or sporadic comments of behavior by coworkers, even if they are blatantly inappropriate in
the workplace. Essentially, this confirms numerous decisions stating that the discrimination laws are
not intended to regulate civility in the workplace.
Denetclaw v. Thoutt Brothers Concrete Contractors, Inc., No. 07-1468 (10th Cir., 6/24/08); 2008 U.S.
App. LEXIS 13443; 103 Fair Empl. Prac. Cas. (BNA) 1859;
Internet: http://ca10.washburnlaw.edu/cases/2008/06/07-1468.pdf .
Two EEOC claims were involved, the first having been dismissed because Denetclaw failed to pursue
his legal remedies.
Hostile work environment: Incidents were neither severe nor pervasive. "Injun" remarks and frequent
requests by coworkers during hot summer months for "rain dances" were considered by Denetclaw to
be joking or kidding and not serious enough to be listed in his first EEOC charge (allegation of unfair
disciplining for allegedly sexually harassing a younger female coworker, and favoring younger female
coworkers rather than him). Other incidents involved being called queer because he wore hair braids,
plus crotch and buttocks grabbing.
Retaliation: This claim failed for lack of proof of a causal connection because there was no evidence
that the supervisor who fired him had any knowledge that he had filed an EEOC charge, and
Denetclaw only speculated that he "could have known".
Discriminatory termination: The employer's reasons for terminating him were insubordination, safety
violations, timecard falsifications, tardiness, and policy violations. He failed to prove they were a
pretext for sex, race, and/or age discrimination. Though he claimed he was not given reasons for his
termination, he later admitted during his unemployment compensation proceeding that he was told he
was being fired for tardiness and working in unsafe conditions. Importantly, he could not prove that
each one of the employer's reasons were a pretext. Finally, it was found that he failed to rebut the
employer's contention that he was fired "due to cumulative dissatisfaction with his job performance
based on multiple incidents of misconduct that occurred during [a] short period of time."
ADA: purpose of act, employee not regarded as disabled, firing decision based on professional
recommendation of treatment, employee's refusal to comply
Illustrative; not controlling law. The purpose of the ADA is to protect employees or prospective
employees from basing their employment decisions on stereotypes or misconceptions. In this case
the adverse employment action was based on the recommendation of a qualified medical
professional rather than a stereotype or misconception about an employee who failed to take his
prescribed medication and reverted to abusing alcohol. While so impaired he shot a number of family
farm animals and the family dog and later threatened to harm his wife. He was arrested by the county
sheriff and the county agreed he should be psychologically evaluated for substance abuse. The
employee refused to undergo the professional recommendation of inpatient treatment. When he
refused to comply within the ten days set by the county, he was fired. The Eight Circuit Court of
Appeals upheld termination of his employment because the employer acted on professional
recommendation of treatment, not stereotype, misconception or myth of on the part of the employer.
Kozisek v. County of Seward, Nebraska, 8th Cir., No. 07-3682, (8th Cit., 8/27/08); 2008 U.S. App.
LEXIS 18339; Internet: courts.gov/opndir/08/08/073682P.pdf.
FMLA: failure to provide adequate medical substantiation of need for reduced work schedule, no
leave interference, no retaliation
Illustrative; not controlling law. Though the employer did not initially provide sufficient necessary
FMLA paperwork, it ultimately did and the employee was validly terminated after ignoring several
requests to comply with the FMLA and the company's attendance and leave policy. Under these
circumstances, termination of her employment was neither interference with her FMLA leave rights
nor retaliation for exercising her FMLA rights. Her doctor provided a brief note as certification of her
need, but the employee failed to provide additional information from her doctor about the anticipated
duration of a reduced work schedule. Ridings v. Riverside Medical Center, No. 06-4328, (7th Cir.,
8/11/08); 2008 U.S. App. LEXIS 17112; 13 Wage & Hour Cas. 2d (BNA) 1703; The Public Library of
Law: /Pages/Login.aspx?d=rBQEZJx4JhwcTQPxBkrvYA%3d%3d&l=Cases.
Independent contractor: material elements [for now]
This New Mexico Court of Appeals case is subject to further review by the New Mexico Supreme
Court. However, until there is a final decision, this criminal case involving the major issue of whether
the victims of battery upon a school employee provides us with a review of whether an individual is an
independent contractor or an employee.
State of New Mexico v. Derrick Johnson, 2008-NMCA-106, Certiorari Granted, No. 31,215, August 6,
2008; 2008 N.M. App. LEXIS 81; Internet: /opinions/VIEW/08ca-106.html
The opinion set forth these material elements in analyzing that status [line spacing reformatted to
more clearly identify the factors]:
{9} Our analysis is informed by the undisputed relationship between the school board and the school
security guards.
"In determining whether an employer-employee relationship exists, . . . the primary test is whether the
employer has the right to control the details of the work to be performed." Savinsky v. Bromley Group,
Ltd., 106 N.M. 175, 176, 740 P.2d 1159, 1160 (Ct. App. 1987).
We also look to evidence of the right to control employees in the performance of their duties and how
the employees are compensated, how equipment is furnished, and which party has the right to end
the relationship. Id.; Blea v. Fields, 2005-NMSC-029, 12, 138 N.M. 348, 120 P.3d 430.
Our Supreme Court broadened this list to include:
(1) the type of occupation involved and whether it is generally performed without supervision;
(2) the skill required for the job;
(3) whether the employer furnishes the tools or instrumentalities for the job;
(4) how long the individual has been employed;
(5) whether the work is part of the employer's regular business; and
(6) whether the employer is engaged in business activities.
Blea, 2005-NMSC-029
FLSA: joint employment, temporary agency contract worker; attorney fee award, extent of success
Illustrative, not controlling law - but a good case to pay attention to because the Second Circuit Court
of Appeals is one of the leading circuits for well considered opinions that other jurisdictions look to for
persuasive reasoning. As always though, be sure to check with an experienced NM employment law
attorney for the latest developments in NM law on joint employment issues. Finally, note that the
ruling on attorney fees in this case is typical of the considerations in many other kinds of cases.
Barfield v. N.Y. City Health & Hosp. Corp., Nos. 06-4137-cv (L), 06-4310-cv (xap) (2nd Cir., 8/808);
2008 U.S. App. LEXIS 16731
Joint employment: The Second Circuit Court of Appeals used the "economic realities test" in a
Department of Labor opinion letter that outlined the "functional control" factors for determining joint
employment [partially edited for ease of reading]:
(1) whether [defendants'] premises and equipment were used for the plaintiffs' work;
(2) whether the [referral agencies] had a business that could or did shift as a unit from one putative
joint employer to another;
(3) the extent to which plaintiffs performed a discrete line-job that was integral to [defendants']
process of production;
(4) whether responsibility under the contracts could pass from one subcontractor to another without
material changes;
(5) the degree to which the [defendants] or their agents supervised plaintiffs' work; and
(6) whether plaintiffs worked exclusively or predominantly for the [defendants]."
***
Further, to the extent [the trial court] advised further consideration of "any other factors" that a court
"deems relevant to its assessment of the economic realities" of a given employment situation, * * * the
district court found it undisputed that Bellevue [hospital] "exercise[d] at least some control over which
agency nurses are permitted to work for the hospital" because it regularly evaluated the performance
of agency employees and could prohibit particular employees from working further at Bellevue and
receive overtime either because it determined that the individual had violated a hospital rule or
because it was generally dissatisfied with the individual's performance. * * * Accordingly, the district
court concluded that the "circumstances of the whole activity viewed in light of economic reality
demonstrate that Bellevue exercised functional control over plaintiff and was her joint employer."
Attorney fee award: The appellate court said that "the quantity and quality of relief obtained"
compared to what the plaintiff sought to achieve in the complaint are important factors for determining
the degree of success achieved for the plaintiff. In this case, the primary effort was to certify a
"collective action" allowed under the FLSA. The appellate court ruled that it was reasonable to link the
attorney's fees award directly to her ability to maintain the case as an FLSA collective action.
Reduction of the attorney fee award was appropriate to make attorneys be realistic about bringing
and the extent of proceeding with these kinds of cases.
USERRA: returning veteran, "promptly reemployed", employer's "fitness for duty" requirements
Illustrative; not controlling law. This case has more issues to be decided, but the interesting factor at
this point is the ruling that the returning service person was entitled to be "promptly reemployed",
despite the employer's standing policy requiring a check of "fitness for duty". This service person was
a member of the Army National Guard involved in questionable behavior while on active duty, but was
ultimately discharged "under honorable conditions (general)". USSERA Act specifically states that a
returning veteran must be "promptly reemployed" after an honorable discharge from military service
and requires that, in most cases, reinstatement is made to the position which the individual would
have held had he or she not left for military leave. The police department had a required return-to-
work process that was applied to all officers returning from an extended leave, regardless of the
reason for that absence. Because of Petty's misbehavior, the reason for his discharge was
investigated before than returning him to employment, and Petty continued employment at a position
different from the one he held prior to activation. The appellate decision upholding the USERRA
requirement of speedy reemployment was based on the length of time the police department took to
reinstate him, which means the courts ruled that USERRA supersedes the employer's policies. [Note:
Employers who may find themselves in this kind of need to confer with legal counsel as soon as
possible to determine how to proceed.] Petty v. Metropolitan Govt. of Nashville-Davidson County, 6th
Cir., No. 07-5649 (8/18/08); 2008 U.S. App. LEXIS 17549; 2008 FED App. 0302P (6th Cir.); Internet:
courts.gov/opinions.pdf/08a0302p-06.pdf.
USERRA: arbitrations agreement enforced in written employment contract
Illustrative; not controlling law. Generally, the U.S. Supreme Court has held that employment claims
brought pursuant to federal statutes are subject to valid written arbitration agreements, This 6th
Circuit Court of Appeals case held that USERRA claims are also subject to written arbitration
agreements. Landis v. Pinnacle Eye Care, LLC, No. 07-6204 (6th Cir., 8/11/08); 2008 U.S. App.
LEXIS 17055; 2008 FED App. 0285P (6th Cir.); Internet: courts.gov/opinions.pdf/08a0285p-06.pdf.
Title VII: loss of security clearance, termination, no discrimination, mixed motive
Illustrative; not controlling law. "Mixed motive" means that there may have been more than one
motive for an adverse employment action. The evidentiary test has two steps:
1) The employee must demonstrate that a protected characteristic of the employee such as race, sex,
national origin, etc., was a substantial factor in the employer's adverse action.
2) If that is established, the employer then has the burden of proving that the decision would have
been made regardless of the employee's protected characteristic. For example, if a person in a
protected class had to have a commercial driver's license in order to qualify for a position, but was
ineligible for the CDL because of a medical condition, then the reason for an adverse employment
action would likely be based on that ineligibility rather than any discriminatory behavior,[if there had
been any].
In this national-origin case the employee had worked for the FAA as an aviation security researcher
for over 15 years, he was the only Muslim and was of Arab descent. On the day the U.S. invaded
Iraq, 3/19/03, he was placed on paid administrative leave and told to leave work, but without any
explanation. In 2005 his request to renew his security clearance was denied. Without that he was not
eligible for continued employment, a factor absolutely required to perform that job with the FAA, and
the courts found that no further consideration of other factors in the case was warranted. As might be
inferred from the circumstances and the name of the primary defendants, the Department of
Homeland Security and its legislation was a major factor. Makky v. Chertoff, No. 07-3271 (3rd Cir.,
8/7/08); 2008 U.S. App. LEXIS 16687; The Public Library of Law: /Pages/Login.aspx?
d=zuYUMcmOEzcXYAj7SyFltg%3d%3d&l=Cases.
Title VII: complaining about racial profiling of customers, reprisal
Illustrative; not controlling law. An employee's complaints about racial profiling of customers was
dismissed. Title VII covers employment situations and how employers and coworkers are treated and
treat each other in the workplace. This employee's complaint was about how he and other assets
managers were affected by this practice, and thus it was not a situation where he as a member of a
protected class was affected by the policy differently from other similarly situated employees. Thus, "it
was not objectively reasonable for [him] to believe that he was complaining about activity protected
under Title VII." Perhaps this was a matter for a civil rights action by the customers, and if he had
been involved in that action and discriminated against for his participation, then this might have been
a different matter. Denham v. Saks, Inc., No. 1:2007cv00694 (U.S.D.C.Ill., 7/30/08).
FMLA: checking on child, not "caring for" family member, not protected
Illustrative; not controlling law. FMLA leave was held not to cover an employee who wanted to check
in on the 11-year-old son of his girlfriend while she underwent surgery. His contention that he was
acting "in loco parentis" [i.e., acting in the place of a parent], and was in effect his "son", was rejected.
Other factors defeating his claim:
- the employee did not establish that the child suffered from a serious health condition,
- he could not establish that he was absent to "care for" the son on that day,
- undisputed facts showed:
- the employee accompanied his girlfriend to the hospital,
- the child stayed with his aunt all day, and
- the employee left the hospital a few times to go check on the child.
Brehmer v. Xcel Energy, Inc., (., 8/4/08).
FMLA: joint employment, nature and extent of control over working conditions
Illustrative; not controlling law. "Joint employment" may arise when an employee works for more than
one organization, business, or government agency. Involved here were a municipality, a county, and
an independent, non-profit emergency communications entity. An employee asserted FMLA rights,
but lost because he was not employed by the employer required to provide FMLA coverage. In order
for there to be joint employment, "each alleged employer must exercise control over the working
conditions of the employee", which his evidence failed to establish. However, note that the appellate
court warned that "we will not tolerate an organization dividing itself into smaller entities with fewer
than the statutory minimum number of employees for the express purpose of avoiding FMLA
obligations." Moldenhauer v. Tazewell-Pekin Consolidated Communications Ctr., No. 07-1118 (7the
Cir., 7/3108); 2008 U.S. App. LEXIS 16230; The Public Library of Law: /Pages/Login.aspx?
d=cyDENHLEJsrIscJ80V%2fa4g%3d%3d&l=Cases.
Retaliation, reprisal: hostile work environment, racial slurs, epithets, single occasion untimely
complaint; employer's summary judgment affirmed
Illustrative; not controlling law. Discrimination applies to the workplace and closely related matters, a
hostile work environment requires severe and pervasive behavior, plus behavior permeating the
workplace and a serious alteration of working conditions. Facts insufficient to meet the "objective
reasonableness requirement" support the discrimination claim:
- motor vehicle accident on a lunch break,
- away from work,
- a coworker twice using a racial slur (epithet) twice a few minutes apart,
- not within the hearing of a supervisor,
- complaining employee admitted she didn't think the epithets were directed at her,
- did not contend that the incident created a hostile work environment, and
- conceded during cross-examination that the incident did not affect her ability to do her job.
Thus, the appellate court agreed with the trial court and found "It is objectively unreasonable to
believe that the use of racially discriminatory language on one occasion by one coworker away from
the workplace is enough to permeate the workplace with 'discriminatory intimidation, ridicule, and
insult' and to 'alter the conditions of the victim's employment and create an abusive working
environment.'" Butler v. Alabama Dep't. of Transp., No. 07-13358 (11th Cir., 7/30/08); 2008 U.S. App.
LEXIS 16113; Internet: courts.gov/opinions/ops/200713358.pdf.
Union: duty to fairly represent, hybrid action, factual questions, limitation of actions
Controlling law. However, this case involves unique facts, so practitioners are advised to read the
actual opinion to check for similar factual situations, applicable law, etc. Basically, a school employee
changed status after many years in another position, became a union member, questioned denial of
her past years of service in calculating the correct salary step after her change of status, and
essentially appears to have been given inadequate attention by both the school district and the union.
This well considered opinion covers the rights and responsibilities of the employee, school district and
union.
Howse v. Roswell Independent School District and Communication Workers of America, AFL-CIO,
No. 27,171 (NMCA, 4/21/08), 2008 NMCA 95; 2008 N.M. App. LEXIS 65; Internet:
/opinions/VIEW/08ca-095.html; Certiorari Denied, No. 31,111, June 12, 2008.
Summary judgment was granted to the school district and the union, which meant her claims were
dismissed without trial. On appeal to the NM Court of Appeals, that court found there were questions
of material fact (i.e., legally important) that should be decided by a jury:
- Did she receive adequate representation by her union in order to know if she actually had a valid
claim?
- If so, did she take timely action on her claims?
- What time limits apply in a hybrid action (i.e., mixed rights and duties)? Against the employee?
Against the employer? Against the union?
Retaliation: recommendation of subordinate to superior, theories, "subordinate bias", "cat's paw";

independent investigation or judgment; attendance violations; evidence, McDonnell Douglas test
Illustrative; not controlling law. A retaliation claim in a discrimination case might be based on a liability
theory referred to as either "subordinate basis" or "cat's paw", whereby the claimant claims an
adverse employment action by a high-level company decision-maker was based on a biased
recommendation of a lower-level supervisor or manager.
In this case the employee failed to show that the ultimate decision-maker had been influenced by the
subordinate supervisor, or had given perfunctory approval for the adverse employment action
explicitly recommended by the subordinate.
This case is of interest in our jurisdiction because the United States Supreme Court denied review of
the "cat's paw" 10th Circuit case of EEOC v. BCI Coca-Cola Bottling Company of Los Angeles, No.
04-2220, 450 F.3d 476 (10th Cir., 6/7/06); 2006 U.S. App. LEXIS 13968 [briefed earlier in this
database].
Furline v. Howard University, Nos. 04-cv-1029 and 04-cv-1114 (D.C. Cir., 7/24/08)
After an HR hearing, and with a history of prior corrective actions, a 46-year-old female patient
registrar at Howard University was suspended without pay for five days because she had been
absent from work without justification or authorized leave. She filed a claim alleging age
discrimination contending that the suspension was instigated by her supervisor against whom she
had made an internal complaint of age discrimination. The trial judge granted summary judgment in
favor of the supervisor and hospital on her age discrimination and hostile work environment claims,
but allowed trial on her retaliation claim.
The D.C. Circuit Court of Appeals reversed the trial judge's denial of summary judgment on the
retaliation claim, so the employee lost on that:
- though her supervisor recommended suspension,
- subsequent multiple independent investigation and reviews and approval by upper-level

management and HR demonstrated a valid business reason for the suspension rather than the
alleged retaliation.
Using the McDonnell Douglas test [previously described many times in this database], the employer
was found to have presented a legitimate business reason for the adverse employment action, and
the employee was unable to show it was a pretext.
Defamation: Health Care Quality Improvement Act (HCQIA), immunity, peer review process protected,
investigation, no bad faith
Illustrative; not controlling law. A cardiologist whose catheter lab privileges were suspended during
allegation of substandard care sued for defamation, His "extraordinary judgment" of $22.5 million was
set aside. Evidence showed that after the investigation he was suspended for five months. The
appellate court found the temporary abeyance was imposed "in the reasonable belief that the action
was in furtherance of quality health care." Poliner v. Texas Health Systems, No. 06-11235 (5th Cir.,
7/28/08); 2008 U.S. App. LEXIS 15580; Internet: courts.gov/opinions/pub/06/06-11235-CV0.wpd.pdf;
Healthcare Quality Improvement Act of 1986 (HCQIA); United States Code Title 42, Sections 11101 -
11152)
Retaliation, Title VII: inappropriate response to later reprisal complaint, punitive damages affirmed
Illustrative; not controlling law. Initial handling of the employee's Title VII claim was defeated by its
subsequent mishandling of a reprisal complaint he later made. A period of half a year between events
was overcome by sufficient evidence of a pattern of adverse actions taken against him. The
mishandling involved subsequent failure to adequately take prompt remedial action in response to
reprisals against the employee. Company officials and executives, who had human resources training
and/or experience and should have known better, botched the matter by letting things go bad. Thus
the jury's award of punitive damages was upheld. Heaton v. The Weitz Co., Inc., Nos. 07-2851/07-
3030 (7/24/08); 2008 U.S. App. LEXIS 15577.
Section 1981: race, hostile work environment, serious verbal attack, repeated demeaning work
requests
Illustrative; not controlling law. An African-American physician, also a homosexual alleged he was
subjected to a hostile work environment. The standard of proof is whether the incident or incidents
were severe and pervasive. Discriminatory behavior came in a serious verbal attack from a fellow
physician, and repeated demeaning requests from a nurse that he remove trash from the operating
room. Finally, evidence also consisted of allegations that members of the residency selection
committee indicated they would not favorably consider him because of his rave and homosexuality.
The motion to dismiss his case failed and will now head to trial. Johnson v. Riverside Healthcare Sys.
LP, No. 06-55280 (9th Cir., 7/28/08); 2008 U.S. App. LEXIS 15994
FLSA: pay discrimination, grouping common cases, commonality
Illustrative; not controlling law. The FLSA allows claimants with claims similar in law and facts to group
them into one action to be tried that way. This case describes the standards for such grouping. Parra
v Bashas', Inc., (9th Cir., 7/29/08); 2008 U.S. App. LEXIS 15985; Internet:
courts.gov/ca9/newopinions.nsf/6E90DF303D4F7F54882574950000CD4C/$file/0616038.pdf?
openelement.
Title VII: retaliation claims, close relative, protected activity of parent
U.S.D.C.N.M. Because it is not a ruling by the Tenth Circuit Court of Appeals, it is thus not controlling
law in other cases, and thus it is limited to being possible persuasive authority in other similar cases
in our federal district.
Two adult children claiming retaliation was the reason they were denied employment. They alleged
that happened because of their mother's protected while working for the company. The 10th Circuit
Court of Appeals has not answered this question of whether a person suffering an adverse
employment action under Title VII can claim retaliation for a close relative's protected activity. Some
other appellate circuits have ruled on the question, holding that a retaliation claim is available only to
the employee, not to relatives, i.e., no riding on coattails. The N.M.U.S.D.C. refused to defer to EEOC
regulations interpreting Title VII, stating "The clear wording of the provision limits causes of action to
persons who engage in opposition or who participate in some way, even if minimally, in the protected
activity." EEOC v. Wal-Mart Stores, Inc., No. 07-CV-0300 JAP/LFG (U.S.D.C.N.M., 7/08); Internet:
/Drs-Web/view-file?full-path-file-
name=%2Fdata%2Fdrs%2Fdm%2Fdocuments%2Fndd%2F2008%2F07%2F17%2F0001724241-
0000000000-07cv00300.pdf.
Title VII: race, timecard fraud; evidence, McDonnell Douglas, summary judgment for employer
Controlling law. The McDonnell Douglas test used in cases of indirect discrimination evidence
requires a prima facie (minimally sufficient) showing of discrimination, then a showing by the
employer of a legitimate nondiscriminatory reason for an adverse employment action, and if that is
sufficient the employee must prove that was a pretext for the action. The employee's explanations
and evidence of unaccounted time failed, plus the employer presented overwhelming evidence of
fraud. No evidence of disparate treatment was presented by the employee. Once again, an appellate
court said it would not second-guess an employer. Kameisha Hamilton v. Boise Cascade Express,
No. 06-6308 (10th Cir., 6/2/08); 2008 U.S. App. LEXIS 11744; 103 Fair Empl. Prac.Cas. (BNA) 935.
Public Sector, Whistleblower First Amendment: retaliation, matters of public concern, adverse
employment action, motivating factor
U.S.D.C.N.M., so important as possible persuasive authority in other similar cases in our federal
district. Public sector employees have a right of free speech under proper circumstance [described
below]. A LANL auditor alleged pressure from higher up not to disclose billing improprieties; threats of
firing were made; management stopped assignments to his unit and ignored its fiscal plans; he was
not considered for promotion, and he alleged an "ergonomically unsafe work station".
Hook v. Regents of the University of California, No. 05-356 (D.N.M., 6/12/08)
Matters of public concern: His exercise of free speech as a public sector was upheld because under
the First Amendment it "revealed an attempt to cover up an alleged concern". Further . . . ,
Speech is a mater of public concern if it is motivated by a desire to expose a public employer's

malfeasance . . .
and,
. . . The fact that his speech took the form of sworn testimony in court or in a legislative proceeding
also lends it additional protection.
Adverse employment action: In order to prevail the employee had to show that his protected speech
was a substantial or motivating factor resulting in an adverse employment action, and the court ruled
the question of reducing work for his unit could be considered by a jury. However the court rejected
his claim of negative performance evaluation because the employer gave him a "glowing description
his work" and a resulting score of 7.5 on a scale of 10, which indicated his performance was better
than "solid". His claim of an ergonomically unsafe work station was rejected.
Motivating factor: Because there was a long time gap between his exercise of his right to free speech
and an adverse employment action, described by the court as a "significant temporal disconnect", his
claim failed.
ERISA: suing administrator
Illustrative; not controlling law. An update on LaRue [USSC - previously briefed in this database] with
a case from the 4th Circuit Court of appeals. In Re: Mutual Funds Investment Litigation, No. 06-2003,
No. 06-2176, No. 06-2177, 529 F.3d 207 (4th Cir. 6/16/2008); 2008 U.S. App. LEXIS 12690; 43
Employee Benefits Cas. (BNA) 2945; The Public Library of Law: /Pages/Login.aspx?
d=eSbUWPS%2b2oFHpeBA%2bxuxsg%3d%3d&l=Cases.
Title VII, PDA: in vitro fertilization (IVF), gender specific test
Illustrative; not controlling law. IVF is gender-specific, as opposed to infertility, which is not.
''Employees who are discharged for taking time off to undergo IVF- just like those terminated for
taking time off to give birth or receive other pregnancy-related care-will always be women. . . Thus,
contrary to the district court's conclusion, [the secretary] was terminated not for the gender-neutral
condition of infertility, but rather for the gender-specific quality of childbearing capacity.'' Of further
importance to the appellate court was the suspicious timing of her termination. Hall v. Nalco Co., No.
06-3684 (7th Cir., 7/16/08); 2008 U.S. App. LEXIS 15106; MoreLaw Lexapedia: /verdicts/case.asp?
n=06-3684&s=IL&d=36533.
ADEA: lowest performer, reduction in force (RIF), termination; no pretext
Illustrative; not controlling law. This 50-year-old manager was the lowest performer in the group of a
dozen that included ten who were under-performers. That was persuasive to the appellate court that
including her in the group of employees laid off in the RIF was not discriminatory. Also important to
the appellate court was the fact that two older supervisors were deemed adequate and were not laid
off. Her pretext claim was also rejected on appeal, and in it should be noted that the employer's
decision process was thought to be wise. Additional evidence further convinced the appellate court to
uphold summary judgment in favor of the employer. Faas v. Sears, Roebuck & Co., No. 07-2656 (7TH
Cir., 7/10/08); 2008 U.S. App. LEXIS 14577; The Public Library of Law: /Pages/Login.aspx?
d=DJBRkK1zqKdDxR4lthj8mQ%3d%3d&l=Cases.
ADA: reasonable accommodations provided, unable to perform essential functions
Illustrative; not controlling law. Despite reasonable accommodations have been provided (though
perhaps late and after difficulty for the employee), she was still unable to perform the essential
functions of her position after briefly doing so, but then unsuccessfully. Mobley v. Allstate Insurance
Co., No. 06-3834 (7th Cir., 7/8/08); 2008 U.S. App. LEXIS 14485; The Public Library of Law:
/Pages/Login.aspx?d=wtcksij8zkiOKJ57fFQ0KA%3d%3d&l=Cases.
FMLA: Non-essential functions
Illustrative; not controlling law. An employee returning to work after FMLA leave is not entitled under
the Act to be reinstated to the same or equivalent position if he or she is unable to perform the
essential functions of the job at the time they seek to return to work. However, the inability to perform
a non-essential function cannot be a basis for denying reinstatement. Carstetter v. Adams County
Transit Auth., No. 1:06-CV-1993 (M.D.Pa., 7/8/08); 2008 U.S. Dist. LEXIS 51874.
Privacy: electronic eavesdropping, hidden baby monitor, federal wiretap statute
Illustrative; not controlling law [Note: (1) this is a trial court decision in our 10th Circuit jurisdiction (2)
in which a federal statue is involved]. Smith v. NWM-Oklahoma, LLC, Inc., d/b/a LA Weight Loss
Centers, (W.D.Okla., 7/8/08); [Note: No additional citation information was available as of 7/24/08].
Concerning wiretaps, check
http://www.law.cornell.edu/uscode/18/usc_sup_01_18_10_I_20_119.html.
FMLA, Promissory Estoppel: employee not eligible, but handbook and letter language may entitle
employee to similar benefits
Illustrative and interesting, but not controlling law. Ooops! HR professionals and company HR staff
may be wise to discuss this case with their human resources and employment law attorneys. Though
the employee was not eligible for FMLA leave [his branch location had fewer than 50 employees with
a 75 mile radius], the company handbook and a letter to the employee might be found at trial to have
promised him leave, rights and benefits similar to that of the FMLA.
Peters v. Gilead Sciences, Inc., No. 06-4290 (7th Cir., 7/14/08); 2008 U.S. App. LEXIS 14894;
Internet: courts.gov/tmp/FA113V7W.pdf.
The appellate court's statement of the case gives you the best insight into what occurred and what
may happen at trial [partially edited]:
SYKES, Circuit Judge. Steven Peters suffered a shoulder injury while he was employed by Gilead
Sciences, Inc. He took a relatively short medical leave to have corrective surgery, and when his
condition did not improve after returning to work, he took another leave. During his second absence,
Gilead filled his position with another employee, and when Peters returned to work, Gilead offered
him a different position. He declined and Gilead terminated his employment.
Peters filed suit against Gilead, alleging (as relevant here) a violation of the Family and Medical
Leave Act ("FMLA"), 29 U.S.C. §§ 2601 et seq., and a claim for promissory estoppel under Indiana
law. Gilead moved for summary judgment on the FMLA claim, arguing that Peters was ineligible for
FMLA leave based on a provision in the Act that excludes employees at worksites at which less that
50 employees are employed "if the total number of employees employed by that employer within 75 *
* * miles of that worksite is less than 50." 29 U.S.C. § 2611(2)(B)(ii). It was undisputed that Gilead
employed less than 50 employees within 75 miles of Peters' worksite, making him statutorily ineligible
for FMLA leave. It was also undisputed that if Peters was eligible for FMLA leave, Gilead had
miscalculated the 12-week duration of his leave and replaced him before it expired.
Relying on language in Dormeyer v. Comerica Bank-Illinois, 223 F.3d 579, 582 (7th Cir. 2000), Peters
argued that Gilead was equitably estopped from asserting the FMLA's 50/75 exclusion based on
representations made in Gilead's employee handbook and in letters it sent to Peters regarding his
entitlement to 12 weeks of medical leave. The district court concluded Peters had not established the
elements of equitable estoppel and granted summary judgment for Gilead.
We reverse. While Dormeyer suggested that FMLA eligibility might, "in an appropriate case," arise by
estoppel, the issue need not have been addressed in this case. Peters alleged a state-law claim for
promissory estoppel--an equitable contract remedy that permits enforcement of a promise that
induces actual and reasonable reliance on the part of the plaintiff, * * * at least to the extent of the
plaintiff's reliance damages. The doctrine is available when a promise lacks the elements of contract;
a threshold question is whether the promise created an enforceable contract.
The medical-leave representations contained in Gilead's employee handbook (repeated in its letters
to Peters) may have created an enforceable contract under Indiana law, giving Peters a contractual
right to the equivalent of FMLA leave (that is, 12 weeks) regardless of his statutory ineligibility. If the
representations in the handbook are not contractually enforceable, Indiana's promissory-estoppel
cause of action allows enforcement of Gilead's promises to the extent of the reliance harm Peters
suffered. Accordingly, we need not decide whether this is an "appropriate case" to apply FMLA
eligibility-by-estoppel, a possibility assumed but not decided in Dormeyer.
FLSA: backpay calculation, "fluctuating workweek method", "time-and-a-half" method, "clear and
mutual understanding"
Controlling law. Read the full text of this complex case for a detailed explanation of how to calculate
back pay for unpaid overtime. Clements v. Serco, Inc., No. 06-4316 (10th Cir., 7/1/08);
2008 U.S. App. LEXIS 13806 Internet article: /Pages/Login.aspx?

d=19pZDZ2aTL4lTWkJ4vouRw%3d%3d&l=Cases.
PDA: Pregnancy Discrimination Act, disparate treatment
Controlling law. As you will recall, the PDA requires substantially equal treatment of pregnant
employees compared with other employees, i.e., no better and no worse.
Orr v. City of Albuquerque, No. 07-2105 (10th Cir., 7/8/08); 2008 U.S. App. LEXIS 14505; Internet:
/verdicts/case.asp?n=07-2105&s=NM&d=36519.
Important facts:
- The city of Albuquerque Police Department required two of its pregnant officers to exhaust their
accrued sick leave before taking maternity leave under the FMLA, and they were not allowed use
their accrued compensatory time for their leave.
- However, evidence showed that other officers who took time off for reasons unrelated to pregnancy
(but still protected by the FMLA) were allowed to use their compensatory time before dipping into their
sick leave.
That was sufficient for the appellate court to determine that summary judgment was inappropriate
because there was a genuine issue of material fact as to whether the explanations offered by the city
were a pretext for intentional discrimination.
As to the issue of pretext, these facts will be important to the jury:
- The city claimed that it was simply following departmental policy, though the trial record showed the
policy itself had only been in draft form when the officers took maternity leave, i.e., not yet in effect.
- Also, the appellate court found that a reasonable jury could find the personnel director did not make
"a good faith mistake" about the policy because evidence showed she had previously singled out the
FMLA leave requests of eight pregnant women by requiring them to use sick time for maternity leave
and did so despite knowing a departmental review of such actions was in progress.
ADEA: EEOC Privacy Act § 83.1 for ADEA cases, Freedom of Information Act (FoIA), objection to
disclosure
Illustrative; not controlling law. This DC Circuit case held that the EEOC could not release confidential
information pursuant the EEOC Privacy Act § 83.1 for ADEA cases when the employer objected to the
EEOC subpoena for documents. The employer has a right to petition for review of the matter and
request an injunction against disclosure if that would be appropriate. Protection of certain confidential
information, trade secrets, medical maters, and other information is a part of civil litigation procedural
rules and case law, which the trial judges applies in reviewing such information to determine whether
or not disclosure ought to be made. Venetian Casino Resort, LLC v. EEOC, No. 06-5361 (DC Cir.,
6/27/08); 2008 U.S. App. LEXIS 13534.
Pregnancy Act: summary judgment, factual dispute
Illustrative; not controlling law. Summary judgments are appropriate where there is no genuine factual
dispute and a party is entitled to judgment as a matter of law, which avoids a trial. In this case there
were factual questions about the employer's possible discriminatory behavior and motivations that a
jury needed to examine and decide, so summary judgment in favor of the employer was reversed by
the appellate court:
- sigh by supervisor when employee advised him of her pregnancy and then asking her if she would
keep the baby, and
- credibility of employer's explanation of reason for dismissal: tardiness initially was excused, but later
documentation stated it had not been excused. Roberts v. Park Nicollet Health Serv., No. 07-1738
(8th Cir., 6/24/08); 2008 U.S. App. LEXIS 13291; Internet article: /Pages/Login.aspx?
d=Ej0I0osxqmWLrYu2TXDmDg%3d%3d&l=Cases.
FMLA: Damages for missed work days, not intentional infliction of emotional distress
Illustrative; not controlling law. The employer appealed from an award of damages for work days
missed because of stress suffered from denial of the FMLA claim, and the appellate court upheld that
award, pointing out that the damages were for days of work missed, not for the tort of intentional
infliction of emotional distress. Farrell v. Tri-county Metropolitan Transportation District of Oregon, No.
06-35484 (9th Cir., 6/29/08); 2008 U.S. App. LEXIS 13574; Internet:
courts.gov/ca9/newopinions.nsf/4DB783F3B774B72D882574750000B8E8/$file/0635484.pdf?
openelement.
Immigration Nursing Relief Act: DoL action sufficient
Illustrative; not controlling law. $1,041,824 ordered by the Department of Labor for back pay was
upheld , the appellate court holding that because the DoL had received notice of the INRA violation,
and once proceedings start, the backpay may be awarded as long as the employer continues to pay
less than the law allows. Alden Management Services, Inc. v. Chao, No. 07-3828 (7th Cir., 6/25/08);
2008 U.S. App. LEXIS 13356; Internet article: /Pages/Login.aspx?
d=j8aYlHJZ34x0AQYUJEvIqw%3d%3d&l=Cases.
ADA: obvious disability, no accommodation request, failure to accommodate, adverse employment

action
Illustrative; not controlling law. Involuntary transfer from pharmacy assistant to collecting shopping
carts and garbage, though not affecting pay or benefits, resulted in a "less distinguished title" and
"significantly diminished material responsibilities". Brady v. Wal-Mart Stores, Inc., July 2, 2008);
Docket No. 06-5486-cv (2nd Cir., 7/2/08); 2008 U.S. App. LEXIS 13850.
Disclosure: work product privilege, civil trial procedure rules
Illustrative; not controlling law. Protection of an attorney's trial preparation work keeps the opposing
attorney from benefiting from the work of another, i.e., no free ride. Federal Rule of Civil Procedure
26(b)(3) [and similar state rules] provides this protection unless the opposing party "shows that it has
substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their
substantial equivalent by other means." The opposing party failed to meet that requirement, and
disclosure to the EEOC of a private investigator's report detailing the harassment of an employee with
a disability in anticipation of litigation against a county parks department did not waive the work
product privilege, even though it had been made to a "third party" because that is not an automatic
waiver of the work product protection. Costabile v. County of Westchester, (SDNY, 6/18/08).
Insurance: untimely claim, coverage denied
Illustrative; not controlling law. Don't lose the insurance coverage you have paid for by not promptly
filing a claim with the insurance company. Though this is a California case, it is typical of almost
every, if not every, insurance policy because the insurer has a vital interest in becoming involved as
soon as possible in the case to gather important information, make informed decisions, direct the
defense, etc. The insured waited nine months to report the claim, a violation of the mandatory 30 day
period, and so coverage was validly denied by the insurer. Westrec Marina Management, Inc. v.
Arrowood Indemnity Co., B195047 (CA.Ct.App., 6/16/08); 2008 Cal. App. LEXIS 914; Internet:
http://www.courtinfo.ca.gov/opinions/documents/B195047.DOC.
Malpractice: attorney misrepresentations to plaintiff, damages against attorney
Illustrative; not controlling law. An employee's sexual discrimination claim failed because her attorney
failed to adequately pursue the claim. However, the jury awarded damages against the attorney for
malpractice. [As you may will recall, the question of malpractice was raised in this database a few
cases back in Niswander v. Cincinnati Insurance Co. in which the attorney may have not adequately
protected the client in disclosure of confidential company documents in that pay discrimination claim.]
Black v. Shultz, No. 07-3108 (8th Cir., 6/24/08); 2008 U.S. App. LEXIS 13303; Internet article:
/Pages/Login.aspx?
ReturnUrl=%2fPages%2fSecure%2fDocument.aspx%3fd%3dFYb0BZlg60OXtG%252bQi4MFRQ%253d
ADEA: reduction in force (RIF), evidence, reasonable factors other than age (RFOA), employer's
burden of establishing reasonableness of an employment practice, disparate impact
Controlling law; major change. When deciding to reorganize or reduce the workforce, under this
decision construing the ADEA employers now must establish the reasonableness of their explanation
for a suspect employment practice. Employers should discuss the specific details of this case with
their employment attorneys if a reduction in force is contemplated.
Meacham v. Knolls Atomic Power Laboratory, No. 06-1505, 554 U.S. ____ (6/19/08); 2008 U.S.
LEXIS 5029; CCH 91 EPD 43,231; Internet: premecourtus.gov/opinions/07pdf/06-1505.pdf.
The Supreme Court rejected the previous ADEA test of "business necessity" in disparate impact
cases, holding that it was inappropriate in this type of litigation because it would be confusing to apply
both a business necessity test and the RFOA test. Now, the employee must establish that an
employer's specific business practice had a disparate impact on older workers, and the employer
must then prove that any disparate impact was based on reasonable factors other than age.
Benefits: employee benefit plan administrator, "dual role" of both evaluating and paying claims,
conflict of interest
Our 10th Circuit Court of Appeals already had taken the position (along with the 3rd, 4th, 5th, 9th, and
11th circuits) that when a benefits administrator is required to evaluate a disability benefits claim and
also to pay the claim if determined to be valid, such conflict of interest must be taken into account on
judicial review of a benefits determination.
MetLife v. Glenn, No. 06-923, 554U.S. ____ (2/18/08); 128 S. Ct. 1117; 169 L. Ed. 2d 845; 2008 U.S.
LEXIS 1101; 76 U.S.L.W. 3391; Internet: premecourtus.gov/opinions/07pdf/06-923.pdf.
The Supreme Court held that there is a clear conflict of interest in such a situation because:
- every dollar provided in benefits is spent by the employer, and every dollar saved belongs to the
employer, and
- even if there is an insurance company providing coverage, that may affect the employer's decision
in choosing a company that predominantly denies claims.
When courts review benefit denial cases, the conflict of interest should be a factor to weigh in
determining if there has been an abuse of discretion by the administrator ( as is the test in trust law
and administrative law cases).
ADEA, Public Sector: state disability plans - age basis or disability basis
Controlling law. The ADEA allows pension eligibility to depend on age. The Supreme court ruled that if
a pension plan includes age as a factor, and then treats employees differently based on pension
status, then the employee must provide evidence that such a difference of treatment was "actually
motivated" by age rather than pension status. In this case, benefits were also offered for disability
benefits for employees in all hazardous occupations if they became disabled before retirement age
and, it assumes that they would have worked until a time at which they would have been eligible for
pension benefits. In this case, the employee was already covered. Essentially then, the Kentucky
state benefits plan does not provide a "safety net" to an employee who does not need one. Kentucky
Retirement Systems v. EEOC, No. 06-1037, 554 U.S. ____, (6/19/08); 2008 U.S. LEXIS 5032; CCH
at 91 EPD 43,230; Internet: premecourtus.gov/opinions/07pdf/06-1037.pdf .
Statute of Limitations: 300 days, express written term-by-term employment contract
Controlling law. Litigation expenses might well have been avoided in this case if the employer (i.e.,
HR) had followed up with a clear written termination letter specifying the termination date, had
requesting immediate return of school keys and other items, had immediately removed him from
mailing lists, and had responded to his claim for unemployment insurance. Nonetheless, both the trial
and appellate courts ruled that this part-time adjunct professor had sufficient information to
understand that his services were no longer needed and that his employment was at an end:
- After an altercation with a student his division chair informed him he was relieved of his duties for
the remainder of the term.
- His employment agreement was limited to each term and expressly stated that he had "no
expectation of continued adjunct employment at the college beyond the term governed by this
contract."
The courts rejected the employee's contentions that:
- His department chair told him he would have a job in the fall.
- He never received a written termination notice.
- The school didn't respond to his unemployment insurance application in which he said he quit
voluntarily.
- The school continued to send him memos about teaching opportunities.
- The school did not request him to return his keys until after he complained to the department chair's
supervisor.
Al-Ali v. Salt Lake Community College, No. 07-4056 (10th Cir., 4/18/08); 2008 U.S. App. LEXIS 5737;
Internet: http://ca10.washburnlaw.edu/cases/2008/03/07-4056.pdf .
Retaliation: reprisal; disclosure of confidential company information, disparate pay class action;
participation protection, opposition protection
Illustrative law; not controlling. Disclosure of confidential company information, some involving privacy
of insured customers, by an employee violated the employer's policies, and the employee was fired.
This case discusses the extent of protection the may apply to actions of employees, the difference
between participation protection and opposition protection, and provides six points of consideration
when determining whether disclosure of company information by an employee was reasonable, and
thus activity protected from retaliation or reprisal by an employer.
Niswander v. Cincinnati Insurance Co., No. 07-3738 (6th Cir., 6/24/08); 2008 U.S. App. LEXIS 13284;
2008 FED App. 0221P (6th Cir.); Internet: courts.gov/opinions.pdf/08a0221p-06.pdf.
The employee had opted into pay discrimination class action litigation. Her attorney encouraged the
employee to turn over company information, which the employee did, and apparently there was a
failure by her attorney to specify the kinds of materials to disclosure and to review and screen what
documents would be produced in the litigation [i.e., was information disclosed essential to the
employee's pay discrimination claim?]
Based on the analysis applied by the courts in the cases discussed above, we believe that the
following factors are relevant in determining whether Niswander's delivery of the confidential
documents in question was reasonable: (1) how the documents were obtained, (2) to whom the
documents were produced, (3) the content of the documents, both in terms of the need to keep the
information confidential and its relevance to the employee's claim of unlawful conduct, (4) why the
documents were produced, including whether the production was in direct response to a discovery
request, (5) the scope of the employer's privacy policy, and (6) the ability of the employee to preserve
the evidence in a manner that does not violate the employer's privacy policy. These factors are
designed to take into account the employer's "legitimate and substantial interest in keeping its
personnel records and agency documents confidential" and yet protect the employee's alleged "need
for surreptitious copying and dissemination of the documents."
[Note: Might the employee have a malpractice claim against her attorney for not properly handling the
confidential company items not related to the pay claim?].
ADEA: reduction in force (RIF), evidence, reasonable factors other than age (RFOA), employer's
burden of establishing reasonableness of an employment practice, disparate impact
Controlling law; major change. When deciding to reorganize or reduce the workforce, under this
decision construing the ADEA employers now must establish the reasonableness of their explanation
for a suspect employment practice. Employers should discuss the specific details of this case with
their employment attorneys if a reduction in force is contemplated.
Meacham v. Knolls Atomic Power Laboratory, No. 06-1505, 554 U.S. ____ (6/19/08); 2008 U.S.
LEXIS 5029; CCH 91 EPD 43,231; Internet: premecourtus.gov/opinions/07pdf/06-1505.pdf.
The Supreme Court rejected the previous ADEA test of "business necessity" in disparate impact
cases, holding that it was inappropriate in this type of litigation because it would be confusing to apply
both a business necessity test and the RFOA test. Now, the employee must establish that an
employer's specific business practice had a disparate impact on older workers, and the employer
must then prove that any disparate impact was based on reasonable factors other than age.
Benefits: employee benefit plan administrator, "dual role" of both evaluating and paying claims,
conflict of interest
Our 10th Circuit Court of Appeals already had taken the position (along with the 3rd, 4th, 5th, 9th, and
11th circuits) that when a benefits administrator is required to evaluate a disability benefits claim and
also to pay the claim if determined to be valid, such conflict of interest must be taken into account on
judicial review of a benefits determination.
MetLife v. Glenn, No. 06-923, 554U.S. ____ (2/18/08); 128 S. Ct. 1117; 169 L. Ed. 2d 845; 2008 U.S.
LEXIS 1101; 76 U.S.L.W. 3391; Internet: premecourtus.gov/opinions/07pdf/06-923.pdf.
The Supreme Court held that there is a clear conflict of interest in such a situation because:
- every dollar provided in benefits is spent by the employer, and every dollar saved belongs to the
employer, and
- even if there is an insurance company providing coverage, that may affect the employer's decision
in choosing a company that predominantly denies claims.
When courts review benefit denial cases, the conflict of interest should be a factor to weigh in
determining if there has been an abuse of discretion by the administrator ( as is the test in trust law
and administrative law cases).
ADEA, Public Sector: state disability plans - age basis or disability basis
Controlling law. The ADEA allows pension eligibility to depend on age. The Supreme court ruled that if
a pension plan includes age as a factor, and then treats employees differently based on pension
status, then the employee must provide evidence that such a difference of treatment was "actually
motivated" by age rather than pension status. In this case, benefits were also offered for disability
benefits for employees in all hazardous occupations if they became disabled before retirement age
and, it assumes that they would have worked until a time at which they would have been eligible for
pension benefits. In this case, the employee was already covered. Essentially then, the Kentucky
state benefits plan does not provide a "safety net" to an employee who does not need one. Kentucky
Retirement Systems v. EEOC, No. 06-1037, 554 U.S. ____, (6/19/08); 2008 U.S. LEXIS 5032; CCH
at 91 EPD 43,230; Internet: premecourtus.gov/opinions/07pdf/06-1037.pdf .
ADA: regarded, vertigo, safety hazard
Controlling law. Trial will be held on a number of issues. The main issue was whether an electrician
was discriminated against when he was demoted because his employer was concerned that after his
stroke he experienced vertigo and balance problems and thus might be a danger to himself and
others. However, the employer claimed that he was not restricted from performing either a "class of
jobs" or a "broad range of jobs," which is an ADA requirement under the concept of "major life activity
of working". Disagreeing, the 10th Court of Appeals denied the employer's motion for summary
judgment on the ground that this situation presented a triable issue. Medical records of the employee
did not support the employers concerns. Also remaining at issue is whether this employee presented
a "direct threat" to safety of others in the plant. Justice v. Crown Cork And Seal Company, Inc., No.
07-8036 (10th Cir., 6/3/08); 2008 U.S. App. LEXIS 11769.
ADEA: layoff, employment policy, rehire, statistical analyses, disparate impact, prima facie case
Illustrative law, not controlling. Allstate's policy of denying rehiring for at least one year after layoff is
an "employment policy" under the ADEA rather than a "hiring policy". This allowed challenge by a
"disparate impact" legal theory. EEOC statistical analyses showed that Allstate's rehire policy had
significantly greater adverse effects on older workers, which established a prima facie (legally
sufficient basic legal evidentiary) case of disparate impact of the policy on older workers. EEOC v.
Allstate Ins. Co., No. 07-1559 (8th Cir., 6/10/08); 2008 U.S. App. LEXIS 12337; Internet:
Title VII: retroactive pay raise defense failed
Illustrative; not controlling law. The employer's attempt to avoid a discrimination charge by deciding to
reverse its adverse employment action and grant the merit raise failed. The 11th Circuit followed the
reasoning of the 7th Circuit, stating that a retroactive raise "could not alter the fact that she had been
denied the increase or erase all injury associated with it, specifically the lost value and use of the
funds during the time she was not receiving them". Crawford v. Carroll, No. 07-11603 (11th Cir.,
6/308); 2008 U.S. App. LEXIS 11830; 21 Fla. L. Weekly Fed. C 758; Internet:
ADEA, OWBPA: reduction in force (RIF), group termination releases, disproportionately laying off
older workers, "knowing and voluntary" waiver, deficient description
Illustrative, not controlling law. The Older Workers Benefit Protection Act has been construed by the
United States Supreme Court to be strictly construed when applying it to releases from liability of
employers in layoffs. Because the legal requirements are specific and particular, employers should
review the full text of this opinion and fully discuss it with human resources professionals and legal
counsel. Peterson, et al. v. Seagate U.S. LLC, No. 0:2007cv02502 (, 5/28/08); U.S. Dist. LEXIS
42179; Internet reference: /docket/court-mndce/case_no-0:2007cv02502/case_id-91710/ .
Whistleblower: FLSA disclosures by employees, protection
Illustrative, not controlling law. Following a DOL FLSA investigation the employer moved to compel
disclosure by the DOL of statements by current former employees. DOL produced those statements
and depositions, but the federal district court trial judge ruled that such information from employees
who did not testify were protected by the whistleblower "informer privilege". Chao v. Raceway
Petroleum, Inc., No. 2:2006cv03363 (D.N.J. May 14, 2008); 2008 WL 2064354; Internet reference:
/docket/court-njdce/case_no-2:2006cv03363/case_id-191730/.
Title VII, PDA: medically recommended abortion, deformed fetus; indirect evidence, McDonnell
Douglas, pretext
Illustrative, not controlling law. Citing to both Title VII and the Pregnancy discrimination Act, the
gender discrimination claim of a female employee will proceed to trial. Her pregnancy was
complicated, medical examinations and tests indicated her fetus would be born with severe
deformities, and professional advice was to terminate the pregnancy which she ultimately did.
Because of these pregnancy complications, surgery and the funeral service, she missed a significant
amount of work. The employer was aware of the problem and as she was leaving for the funeral she
observed her work station being packed to move and learned her employment was being terminated.
The employer's defense was unexcused absence, but evidence showed that the adverse employment
action apparently was based on her supervisor's consideration that she "didn't want to take
responsibility". The appellate court found that (1) the supervisor was aware of and approved of her
absences, (2) that sufficient evidence indicated he knew of the abortion, and (3) that there was
sufficient evidence for a trier of fact to infer that it was more likely than not that his knowledge was the
determinative cause motivating termination of her employment. Further, evidence from other
witnesses indicated other employees were treated differently when calling to be excused from work
for illnesses. Doe v. C.A.R.S. Protection Plus, Inc., Nos. 06-3625, 06-4508 (3d Cir., 5/3008); 2008
U.S. App. LEXIS 11519; Internet: courts.gov/opinarch/063625p.pdf.
USERRA: harassment, hostile work environment, military status
Illustrative, but not controlling law. As we have noted in the past few years, courts now often compare
various discrimination laws and borrow legal theories and remedies to consistently and predictably
analyze facts, fashion remedies and resolve claims. The intent of Uniformed Services Employment
and Reemployment Act is to encourage military service, and an Alabama federal district trial court
judge thus ruled it should be construed to allow a harassment/hostile work environment to proceed to
full trial. Otherwise, said the judge, the act would be meaningless if an employer made working
conditions so intolerable the employee would "feel forced to quit" and but would left without a remedy
for discrimination and harassment. Dees v. Hyundai Motor Mfg. Ala. LLC, (M.D. Ala., No. 07-306,
5/21/08); McGuireWoods LLC article: /news-resources/item.asp?item=3330.
Arbitration: review limited to contract issue, statutory claim triable in court
Illustrative law; not controlling. "While the expertise of arbitrators lies in the application of facts to the
terms of an employee's contract or collective bargaining agreement, the expertise of federal courts
lies in the application of facts to anti-discrimination cases". Thus, the employee could proceed with
her ADA claim because it was of a 'distinctly separate nature' from 'independent statutory rights
accorded by Congress." Nance v. The Goodyear Tire & Rubber Co., No. 06-6563 (6th Cir., 5/23/08);
2008 U.S. App. LEXIS 11076; 2008 FED App. 0195P (6th Cir.).
ADEA: reassignment, adverse employment action; evidence, prima facie case
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: /Pages/Login.aspx?
d=TiBiplRMgsASnfM8GyRI6A%3d%3d&l=Cases.
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
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
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.
Unconscionable?
A contract to be enforceable under NM law must not be "unconscionable", which could mean:
- 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 appellate court decided there was no absence of meaningful choice, and that the terms were not
"such as no man in his senses and not under delusion would make on the one hand, and no honest
man would accept on the other.
Consideration?
Contractual consideration may consist of:
- 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.
Generally, reciprocal agreements have been held to constitute sufficient contractual consideration if
the employer does not retain a unilateral right on its part to terminate or modify the arbitration
agreement after an employee's claim accrued. [Note: Refer to NM cases on this point briefed
previously in this database.]
The appellate court rejected Pennington's contention of unfavorability because she did not
substantiate her claim with any legal authority that an arbitration agreement lacks consideration when
one party may be more likely to use it than another.
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;
Internet Findlaw article: /scripts/getcase.pl?court=US&vol=000&invol=06-1431
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
Controlling law in this jurisdiction. "Associational discrimination" is a theory gaining more application.
It means that an employee was discriminated against because he or she was associated with a
disabled person. In this case the parents were fired a couple of weeks after their son relapsed into a
terminal cancerous condition, and the employer found their medical expenses to be too high. All three
were on the company health plan.
Trujillo v. Pacificorp, No. 06-8074 (10th Cir., 5/7/08); 2008 U.S. App. LEXIS 9807; Internet article with
case text: /verdicts/case.asp?n=06-8074&s=WY%20%20%20%20%20%20%20%20&d=36188
Evidence at trial and on appeal showed:
- 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
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. Exxon Mobil Corp., (N.D.Tex, 4/28/08), Internet article: /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.
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:
/Pages/Login.aspx?d=w6u5%2fM05BeITI04HHij0Sg%3d%3d&l=Cases.
Benefits, Arbitration: severance pay denied
Illustrative, not controlling law. An executive who declined a comparable job and higher salary was not
entitled to severance pay. Williams v. The Interpublic Severance Pay Plan, No. 07-3146 (7th Cir.,
4/29/08); 2008 U.S. App. LEXIS 9231; Internet: /Pages/Login.aspx?
d=YqARcqX%2fVKSZ8W0GMlLMfA%3d%3d&l=Cases.
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.; 2008 WL 907474 (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); /scripts/getcase.pl?
court=US&vol=489&invol=101].
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. ____ (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. Reg. (P & F) 567; Internet:
premecourtus.gov/opinions/06pdf/05-1126.pdf.
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. Hinds v. Sprint/United Mgmt
Co., No. 07-3027 (10th Cir., 4/22/08); 2008 U.S. App. LEXIS 8714; Internet, More Law article:
/verdicts/case.asp?n=07%2D3027&s=KS%20%20%20%20%20%20%20%20&d=36068.
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
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:
courts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA2LTQ5MzAtY3Zfb3BuLnBkZg==/06-4930-
cv_opn.pdf.
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:
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
The facts are important in this case, so you should print it and study it for full understanding of how
the court decided the matter. Briefly, however, the employee failed twice to provide details of the
medical certification so that the employer could adequately evaluate the validity of the FMLA claim.
In order to succeed, the employee had to prove the employer willfully violated the Act, and because
the FMLA does not define willful behavior, the Tenth Circuit Court of Appeals adopted the definition for
willfulness used by courts in Fair Labor Standards Act (FLSA) cases. [Note: Fortunately, federal
courts frequently strive for continuity and uniformity in discrimination cases and our state courts tend
to do the same, which make interpretation easier in human resources and employment law.]. The
FLSA standard is: "a plaintiff must show that 'the employer either knew or showed reckless disregard
for the matter of whether its conduct was prohibited by the statute.'" Finding that the evidence showed
that the employer did not willfully violate the FMLA, the employee's claim was appropriately denied.
ERISA: benefits, human resources benefits misstatement
Illustrative, not controlling law. An HR employee misstated to an employee a larger pension benefit
than the actual entitlement. That was not a breach of a fiduciary duty because the HR employee was
not acting in the capacity of a plan fiduciary. "Nothing in ERISA secures him a windfall when a
ministerial employee makes a mistake in an estimate, a mistake of which the beneficiary is or should
be aware of because of the company's clear and accurate ERISA disclosures." An estimate is just
that - an estimate. Livick v. The Gillette Co., No. 07-2108 (1st Cir., 4/17/08); 2008 U.S. App. LEXIS
8261; Internet: courts.gov/cgi-bin/getopn.pl?OPINION=07-2108.01A.
FMLA: discrimination, termination motive, unfavorable comments
Illustrative, not controlling law. A school bookkeeper was fired for missing too much work,
unfortunately based on:
- caring for terminally ill parents and
- the effects of deaths of five other family members or close friends within the year.
She missed 72 of 242 work days. Stating that it determined she missed too much work to meet the
essential functions of her position, the school board terminated her employment, and later they stated
it was not her absences, but rather because her performance was unsatisfactory [Note: Changing
reasons is often fatal]. Evidence showed a discriminatory motive because the board was "fully
cognizant of their obligations . . . under the FMLA", built a case to fire her on grounds of
incompetence, and stated at a board meeting that FMLA requirements were "just ludicrous" and "a
fiasco" [Note: Oh, oops! Also, perhaps the district and/or board ought to have realized this employee
needed FMLA leave.]. Lewis v. School Dist. #70, No. 06-4435 (7th Cir., 4/17/08); 2008 U.S. App.
LEXIS 8248; Internet More Law article: /verdicts/case.asp?n=06-
4435&s=IL%20%20%20%20%20%20%20%20&d=36049.
Title VII: gender, age, retaliation, comment, "Not young and hip enough"; FMLA, anxiety
Controlling law. You'd think that a comment like "Not young and hip enough" would be a sufficient
basis for a gender claim, but it wasn't because the comment was made by employees of a partner
company, not the employer. Essentially:
- A biased comment isn't direct evidence of discrimination unless it can be attributed to a

decisionmaker.
- A discrimination complaint must allege unlawful discrimination if it is to be considered protected

activity under a claim of retaliation.
- Petty slights and trivial occurrences of personality conflicts won't support discrimination and
retaliation claims.
Read the details of this case because it is complex.
Steele v. Kroenke Sport Enterprises, LLC, No. 06-1377 (10th Cir., 2/11/08); 2008 U.S. App. LEXIS
3091; 102 Fair Empl. Prac. Cas. (BNA) 1291; Internet article with a full text of the opinion:
/verdicts/case.asp?n=06-1377&s=CO%20%20%20%20%20%20%20%20&d=35346
Deborah Steele stated in 1999 as a sales representative for Ascent Entertainment, which operated
Denver's Pepsi Center arena. In 2000 Kroenke Sports Enterprises (KSE) acquired the arena and
became her employer. Later, Clear Channel (CC) and KSE became 50/50 partners with Universal
Lending Pavilion (ULP). Around late September 2003 ULP had a position open for selling ULP
sponsorships, and Steele's superiors thought she'd be right for it. CC had approval rights over that
position. Three CC employees involved in the hiring process did not want steels because they
claimed she had a history of poor communications with CC, and allegedly one of the CC employee's
had said Steele was "not hip enough and young enough for the job." Ultimately, a younger male
employee was hired for the position.
A few days later Steele was informed that her base salary would be reduced from $50k to $30k
(because membership sales were declining), but her commission percentages would be raised as an
incentive to obtain more sales.
Nitpicking allegedly began, along with anxiety problems, increased detail was required for reports,
etc.
Amidst all of this there was an incident involving Steele and a couple of other employees for violating
company policy prohibiting sales of tickets to brokers, which Steele admitted and for which she her
employment was terminated.
Litigation involved Steele's claims of (1) age and sex discrimination and (2) retaliation for claiming
discrimination.
Age and sex discrimination:
This requires her to show that:
1) she was in a protected group,
2) her work performance was satisfactory,
3) an adverse employment action was taken against her, and
4) the adverse action was taken under circumstances from which discrimination could be inferred.
Her employer conceded she had established all elements except the third one.
As to being denied the ULP position, the Tenth Circuit Court of Appeals noted that Title VII anti-
discrimination provisions are limited to "adverse actions that affect employment or alter conditions of
the workplace." Steele's affidavit alleging that the ULP position would have afforded her an
opportunity to earn increased commissions. Unfortunately for her, she conceded in a deposition taken
earlier that she had not discussed salary or commission terms for that position and was reluctant to
take the position because it was a "tough sale". Because of that contradictory testimony, the appellate
court disregarded it, and there was no evidence otherwise to support a discrimination claim.
Steele's contention that the comment being neither young nor hip was rejected because the person
who allegedly made it was not identified and was not shown to have been made by a KSE employee.
In fact, KSE employees had advocated on her behalf for the ULP position.
Thus, her age and sex discrimination claims were dismissed.
Retaliation:
This claim was also rejected because events were minimal and other employees similarly situated
had been treated the same. Personality conflict and petty slights are not actionable, and retaliation
claims must be based on actions that "must be harmful to the point that they would dissuade a
reasonable worker from making or supporting a charge of discrimination."
Public Sector: constitutional property right claims, blacklisting
Controlling law, but it is specific to Colorado statutes. Teigen v. Renfrow, 511 F.3d 1072 (12/27/07);
Internet: /data2/circs/10th/061283p.pdf.
Arbitration: disability benefits, subsequent separate plan
Illustrative, not controlling law. For some 40 years benefits had been part of union bargaining and
arbitration. However, the disability plan in question was separate from and independent of the
bargaining agreement governed an independent administrative committee vested with "sole
discretion" to interpret the plan, claims procedures and appeals. Steelworkers v. Rohm and Haas Co.,
No. 06-4346 (3rd Cir., 4/14/08); 2008 U.S. App. LEXIS 8361; Internet:
Retaliation: litigation, decisionmaker, knowledge, inference
Illustrative, not controlling law. Knowledge by the interviewer that the applicant had filed a state claim
for age discrimination was sufficient evidence of retaliation as the reason for not hiring him.
Knowledge need not be of the exact nature of the state claim. Cline v. BWXT Y-12, LLC, No. 07-5639
(6th Cir., 4/1/08); 2008 U.S. App. LEXIS 6829; 2008 FED App. 0133P (6th Cir.); Internet article with
text of decision: /verdicts/case.asp?n=07-5639&s=TN%20%20%20%20%20%20%20%20&d=35921.
Whistleblower: cheating, public policy, retaliation, constructive discharge, adverse employment action;
severance plan, triable ERISA claim; emotional distress claim denied
Illustrative, not controlling law. An employee in a high level of a real estate company learned that his
supervisor had cheated on a computer online test by having his secretary take the test instead of him.
After notifying the company's general counsel of this dishonesty, the employee's supervisor told him
he could no longer work for him and then attempted to force the employee out of the company.
Cheating under those circumstances is a violation of public policy and the reporting employee is
protected from retaliation and reprisals. Sutton v. Brandywine Realty Trust, (NDCal, 4/l 4/08); Internet
Pacer docket access: /docket/court-candce/case_no-3:2007cv01109/case_id-189512/ [NOTE: No
other citation information was available as of 4/24/08].
Title VII: race, hostile work environment, failure to take prompt remedial action
Controlling law. Complaints of, and actual evidence of, pervasive and prolonged racial harassment
were not promptly and effectively dealt with.
Tademy v. Union Pac. Corp., No. 06-4073 (10th Cir., 4/1/08); 2008 U.S. App. LEXIS 6916.
Ranee Tademy, an African-American switchman, was subjected to a prolonged and pervasively

racially hostile work environment that began in 1995 including, among other things:
- racist graffiti on his locker and on restroom walls and no action being taken after complaining about
it other than removing it,
- racist cartoons posted on company billboards and no action being taken after complaining about it
other than removing it,
- overhearing another employee refer to an African-American manager as "F***ing Kunta Kinte",
- being called "boy" in the presence of at least two other employees,
- finding a life-size noose "prominently suspended from a large industrial clock" in 2003 without any
investigation or any other action being taken after he reported it.
The appellate court said he did not have to be subjected daily to this offensive behavior in order to be
able to present his case to a jury.
[Note: Check this similar case: Bailey v. USF Holland, Inc., No. 07-5304 (6th Cir., 5/16/08); 2008 U.S.
App. LEXIS 10518; 2008 FED App. 0184P; Internet: courts.gov/opinions.pdf/08a0184p-06.pdf.]
Title VII, ADA: gender, sex, pregnancy, high risk, complications, unpaid leave, ADA, temporary
disability major life activity, broad class of jobs, working, discrimination, email comment, direct
evidence
Illustrative case, but not controlling law. Employers need to choose their words carefully. The focus
needs to be on essential functions of the position and standards of performance, not the employee's
actual or perceived condition. The employee's pregnancy complications limited her to working from
home, but the essential functions of her commercial account representative position required travel
and direct personal contact with customers. In this case the employer sent an email to the employee
with one correct phrase and with one troublesome phrase concerning her termination:
- "because of your inability to work", and then unfortunately added
- "due to complications from" . . . pregnancy".
Thus, her discrimination claim was allowed to be considered by a jury to determine if the second
phrase was direct evidence of gender and pregnancy discrimination. Her ADA claims were dismissed
on summary judgment because (1) she was not restricted from a broad range of jobs, and (2) the two
month period of temporary restriction would not qualify under the ADA requirement of a long term or
permanent limitation. Kucharski v. Cort Furniture Rental, No. 3:2006cv00358, Connecticut District
Court, New Haven Office, Civil Rights - Employment
Cause: 42:2000 Job Discrimination (Sex), filed March 9, 2006.
FMLA: employer, checking validity of physicians' letters, employee's opportunity to rectify, termination
justified, daughter, granddaughter
This Sixth circuit case is not controlling law because our jurisdiction is the tenth Circuit. However, it
provides guidance (1) when checking the validity of health care provider letters and (2) when
checking claims based on problems of family members. For a number of reasons the employee did
not qualify for FMLA leave, her employer proceeded to promptly and properly investigate her
suspicious claims, and her termination did not violate any of her FMLA rights.
Read this opinion for details, but, as always, do not proceed without expert legal advice.
Practical note: When dealing with a problem employee claiming personal and/or family problems,
reviewing the FMLA early on with the employee will advise him or her that the act covers only:
- the employee's own serious health condition that would prevent him or her from working,
- the birth of a son or daughter,
- the adoption or foster care of a son or daughter, and/or
- caring for the employee's son or daughter, spouse or parent having a serious health condition.
Novak v. MetroHealth Medical Center, No. 06-3036, 503 F.3d 572 (Sixth Cir., 9/28/07); 2007 U.S.
App. LEXIS 22884; 2007 FED App. 0398P (6th Cir.); 155 Lab. Cas. (CCH) P35,345; 12 Wage & Hour
Cas. 2d (BNA) 1612; 2007 WL 2807004; Internet: courts.gov/opinions.pdf/07a0398p-06.pdf
Essentially:
- The employee had run out of regular leave [red flag!].
- Health care information about her back problems seemed suspicious, contradictory and sketchy,
and it turned out that her regular physician had not examined the employee but rather had relied on
the opinion of another physician.
- She was provided an opportunity by her employer to rectify the situation.
- A pre-termination meeting was scheduled by the employer to give the employee a fair opportunity to
present her case.
- The employer protected itself by requesting a form authorizing release of medical information so it
could contact the physician who provided the questionable FMLA letter.
She was terminated and filed a discrimination claim under the FMLA based on the following
contentions:
- She was entitled to FMLA leave because of her alleged back problems, arguing that under federal
regulations, a medical certification form is presumed to be valid and that the company had no right to
question and ultimately reject the forms she submitted for her back problems, and that if the company
didn't agree with the doctor's opinion about her alleged back complaints, its only option was to
schedule a second opinion.
- She claimed entitlement to FMLA leave to care for her daughter alleged to be suffering from post
partum depression and assist with the care of her newborn grandchild.
Concerning her own health problems, the appellate court acknowledged that employers have a
responsibility under the regulations to give employees an opportunity to correct deficiencies in their
medical certification forms. Importantly, her employer met that obligation by giving her sufficient
opportunities to submit the form for her back and other forms supporting her leave request. That
having been done, the court also held (1) that her employer wasn't required to seek a second opinion
and (2) not doing so under these suspicious circumstances didn't preclude it from contesting the
validity of the employee's serious health condition. As always, said the appellate court, employees
have the burden to show that they're suffering from a serious health condition.
Concerning claims relating to her daughter's postpartum depression and to her ill grandchild, the
appellate court emphatically stated that the FMLA doesn't provide time off to care for grandchildren
under these circumstances. Further, FMLA doesn't doesn't provide time off to care for adult children
unless they're unable to care for themselves because of a mental or physical disability. This appellate
court agreed with rulings from other appellate circuits holding that an employee requesting such leave
must show the adult child suffers from a type of impairment that would qualify as a disability under the
Americans with Disabilities Act (ADA). ADA disabilities must be permanent, and postpartum
depression by definition is temporary. Having failed to show that she was entitled to FMLA leave, her
employer was justified in firing her, and that didn't interfere with her FMLA rights.
ADA: regarded, rejected
Illustrative and helpful, though not controlling law. The employee's restrictions meant she was
incapable of performing the essential functions of the job, and her employer's recognition of her
employee's limitations is not an "erroneous perception" of disability, rather, it is recognition of fact.
Ruiz Rivera v. Pfizer Pharmaceuticals, No. 07-1595 (1st Cir., 3/2708); 2008 U.S. App. LEXIS 6354;
Internet: /www/content/10/12455/12487/14395/14406/ruizcase.pdf.
NLRA: letter writing, terms and conditions of employment
A school bus driver wrote letters to the school board, not the general public, at the direction of his
union expressing concerns terms and conditions of employment and whether the new contractor
would honor the union recognition. The First Circuit Court of Appeals ruled this to be protected by the
National Labor relations act. Our jurisdiction is the Tenth Circuit, so this is illustrative rather than
controlling law. Five Star Transportation, Inc. v. NLRB, No. 07-1316 (1stCir., 3/31/08); 2008 U.S. App.
LEXIS 6788.
Title VII: adverse employment actions based on interracial associations, mixed motive
Illustrative, but not controlling law. An employer discharged a white basketball coach married to an
African-American woman along with an African-American coach, but retained a white coach who was
not married to an African-American woman. "[W]here an employee is subjected to [an] adverse action
because an employer disapproves of interracial association, the employee suffers discrimination
because of the employee's own race." Holcomb v. Iona College, No. 06-3815-cv (2nd Cir., 4/1/08);
2008 U.S. App. LEXIS 6897; Internet:
courts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA2LTM4MTUtY3Zfb3BuLnBkZg==/06-3815-
cv_opn.pdf.
Title VII: associational retaliation claims upheld
Illustrative, but not controlling law. An employee's claim alleging that he was discharged by his
employer in retaliation for an EEOC charge filed by his then-fiancée who also worked for the
company will proceed to trial. A divided Sixth Circuit went beyond a text of Title VII's anti-retaliation
provision and held the statute protects related or associated third parties from retaliation where it is
clear the third party's protected activity motivated the employer's action. This is in line with rulings
from other circuits, the EEOC's Compliance Manual, and the Supreme Court's reasoning in Burlington
N. & Santa Fe Railway Co. v. White. Thompson v. North Am. Stainless, LP, No. 07-5040 (6th Cir.,
3/31/08); 2008 WL 834005; 2008 U.S. App. LEXIS 6776; 2008 FED App. 0129P.
Title VII: religion, harassment, hostile work environment
Illustrative, but not controlling law. "If Americans were forced to practice their faith under the
conditions to which [the plaintiff] was subject, the Free Exercise Clause and the embodiment of its
values in the Title VII protections against workplace religious prejudice would ring quite hollow." The
employer contended there were no physical threats and asserted a "sticks and stones" defense
based on assertions that the workplace was "inherently coarse". "Title VII contains no such `crude
environment' exception. The EEOC provided sufficient evidence that the employee "persistently
suffered from religious harassment of the most demeaning, degrading, and damaging sort." EEOC v.
Sunbelt Rentals, (4th Cir., 3/31/08) [No additional citation information available as of 4/10/08].
ADEA: differing benefits, coordination with Medicare, no discrimination, EEOC exemption
Controlling law. This retirement benefits case deals with a specific facts and a specific EEOC
regulation, so benefits practitioners need to read the Third Circuit Court of Appeals case that the
United States Supreme Court rejected for further review on a Petition for a Writ of Certiorari. Denial of
a Petition for a Writ of Certiorari means that the United States Supreme Court did not deem the ruling
of an appellate court erroneous, and the legal effect is that the lower appellate court ruling is as a
practical matter controlling law [Note: NM appellate procedure works the same way].
AARP v. EEOC, No. 07-662, ____ U.S. ____, (3/24/08); 2008 U.S. LEXIS 2762; denied certiorari in
AARP v. EEOC, No. 05-4594, 489 F.3d 558 (3d Cir. Pa., 2007), 2007 U.S. App. LEXIS 12869;
Internet: courts.gov/opinarch/054594p.pdf.
Coordinating retiree benefits with Medicare benefits (or comparable state benefits) is important to
some employers in designing retiree benefit programs. Recognizing that, in December of 2007 the
EEOC promulgated a final rule to exempt from ADEA coverage employers who coordinate retiree
benefits in that way. Because this exemption would allow benefits for those of age 65 and older to
differ from younger retirees, the AARP sued to prevent implementation of that rule. The Third Circuit
Court of Appeals reviewed the issue and ruled that the exemption was proper. As a practical matter,
denial of certiorari by the United States Supreme Court now effectively allows the EEOC exemption.
The order of the United States Supreme Court, No. 07-662, is brief and states no reason, which is
why benefits practitioners need to read the ruling and reasoning in the appellate court decision, No.
05-4594 cited above.
Arbitration: judicial review limited to issues arbitrated
Controlling law. Because there is "a national policy favoring arbitration with just the limited review
needed to maintain arbitration's essential virtue of resolving disputes straightaway", parties may not
agree to expand judicial review of arbitration awards beyond what is specified in the Federal
Arbitration Act. Though this was not an employment law case, that reasoning would apply to such
cases. Hall Street Assoc. LLC v. Mattel, No. 06-989 (USSC, 3/25/08); 2008 U.S. LEXIS 2911;
Internet: http://www.law.cornell.edu/supct/cert/06-989.html.
Title VII: race, discrimination; disparate treatment, pretext; disparate impact not proved
Not controlling law, but a good illustration of faulty interviewing. The employer denied a position to an
African-American applicant with twenty years of experience and boilermaker training through the
TVA's own training program. What the employer did wrong that resulted in affirmation of an award
based on liability for disparate treatment:
- the hiring committee had changed its selection matrix in order to weigh the (inherently subjective)
interview as more than 70 percent of an applicant's final score, and technical expertise as only 30
percent,
- interview scoring varied widely, even on apparently objective questions, e.g., the plaintiff's answer to
a question about attendance received a 3.7 score; white applicants with virtually the same responses
were given scores of 4.2 and 5.5, and
- some interview score sheets were changed as many as 70 times for no apparent reason.
Thus, the trial court's finding a pretext for rejecting the applicant was proper. However, there was
insufficient statistical evidence to support a finding of disparate impact, so that finding was rejected.
Dunlap v. Tennessee Valley Authority, No. 07-5381 (6th Cir., 3/21/08); 2008 U.S. App. LEXIS 5898;
2008 FED App. 0121P (6th Cir.); Internet: courts.gov/opinions.pdf/08a0121p-06.pdf.
FMLA, Workers' Compensation: concurrent leave; no FMLA retaliation for exceeding maximum FMLA
allowed leave
Not controlling law, but a good case to review with expert specialists and attorneys for situations
involving both workers' compensation leave and FMLA leave; the full text of the case describes the
essential factors necessary to allow such a result. The employer had a written policy of termination for
exceeding twelve weeks of FMLA leave. The employee exceeded the 12 weeks and was discharged.
To review, DOL regulations, 29 CFR 825.702(d)(2), specifically permit FMLA leave to run concurrently
with workers' compensation when the employee's work injury also is serious health covered by the
FMLA and the employer has properly notified the employee that the leave times will run concurrently.
The employer had fully complied with that regulation. Concerning the employee's argument that one
cannot be forced to take FMLA leave, the appellate court rejected it. Dotson v. BRP US Inc., No. 07-
1375, (7th Cir., 3/21/08);2008 U.S. App. LEXIS 5897.
Section 1981: broad interpretation of race and reprisal claims
Not controlling law, but a good illustration of a court exercising common sense. An Iranian Muslim
woman representing herself filled in a discrimination claim by checking only the court form's boxes for
"national origin" and "religion". No explanation was provided on the form to distinguish those terms
and "race" or "color", and she did not check off those boxes. On the one hand, pleadings should give
reasonable notice of the nature of a claim, but court rules also allow for amendments to clarify such
situations. The trial court dismissed her claims, but the appellate court revived them, noting when
Section 1981 was passed, "it was routine to refer to nationalities or ethnic groups as races" (i.e., the
"German" race). And if the employee meant to allege that she was discriminated against based on
her Iranian "race," what she checked on her complaint form was within coverage of Section 1981, and
her case was "ambiguous because her national origin and 'race' coincide-Iranian". Abdullahi v. Prada
USA Corp., No. 07-2489 (7th Cir., 3/21/08); 2008 U.S. App. LEXIS 5881
Title VII: discrimination, evidence
Not controlling law, but an illustration of what might be evidence of a discriminatory or harassing
attitude and behavior. The screensaver (or "wallpaper") on the computer of a senior pharmacist
consisted of a slave master standing over three black males, which offended an African-American
pharmacist who had recently been hired. Her complaints to the director of the pharmacy department
were ignored. In a subsequent reduction in force (RIF) several months later resulted in her
termination. The employer moved for summary judgment, which the trial judge denied because her
complaints about the screen saver protected activity under Title VII and the judge that held the new
pharmacist had made a prima facie showing of retaliation. Also, inconsistent testimony about the
basis for the layoff decision was enough to raise an inference of pretext. However, the defect in her
case was failure to plead a hostile work environment, and so she lost [Note: Nonetheless, the screen
saver matter should not be disregarded]. Odom v. Mobile Infirmary, (SDAla., 3/17/08) [Note: No
additional citation information is available as of 4/3/08.].
Title VII: gender discrimination, reprisal, retaliation, mixed motive

Illustrative; not controlling law. Cynthia DeCaire, a Deputy U.S. Marshal, sued on allegations that the
District Marshall retaliated against her after she filed complaints with the Equal Employment
Opportunity office. Concerning the mixed motives issue of disloyalty and of discrimination:
- the government's attempted defense of disloyalty failed because the District Marshall testified the
neither he nor anyone else had such a perception, and
- there was sufficient evidence of discrimination that should have resulted in a finding of liability.
As to reprisal or retaliation, there was sufficient evidence that also should have resulted in a finding of
liability. DeCaire v. Mukasey, No. 07-1539 (1st Cir., 3/11/08); 2008 U.S. App. LEXIS 5174.
Title VII: gender discrimination, pretext, proof from outside of 300 day limit
Illustrative; not controlling law. A fast-tract plan in place for two selected males was found to be the
basis for a female employee not being promoted. Because of that the trial court erred in apparently
requiring the woman to prove that her credentials were superior to the man who was selected in order
to show pretext. Fischer v Avanade, Inc., No. 07-1800 (7th Cir., 3/14/08);
2008 U.S. App. LEXIS 5488.
Public Sector: drug testing, Fourth Amendment, search
Illustrative; not controlling law. Remember, government employees have constitutional rights in
searches by their employers (private sector employees do not have such rights. An applicant for a
part-time position as a library page reused to take a drug test (i.e., a form of personal search) and
was not hired. The appellate court ruled that such a requirement was not valid because:
- she would be working as needed with staff at a youth services desk for limited periods of time when
needed,
- there was no evidence that pages continuously supervised or interacted with or were responsible for
unaccompanied children's safety and security, and
- further, library pages are not safety-sensitive positions in the sense of teaching positions or positions
involving work that pose a danger to the public.
Also, the court noted that the city's general concern about drug abuse as a societal issue, the adverse
impact of drug abuse on job performance, and the need to protect children from either drug abusers
or individuals who might influence children to use drugs did not amount to a special need to justify an
exception to requirements of the Fourth Amendment of individualized suspicion. Lanier v. City of
Woodburn, No. 06-35262 (9th Cir., 3/13/08); 2008 U.S. App. LEXIS 5353; Internet:
http://209.85.173.104/search?
q=cache:qM3pP7LDKc0J:courts.gov/ca9/newopinions.nsf/5E2248D8908215C98825740B000347DE/%2
FMLA: days, counting, holidays
Illustrative; not controlling law. Do holidays included when computing FMLA leave? Yes according to
this case, which you should read and understand. Though it is not from our jurisdiction, it is the first
case to decide this issue, and human resources and employment law practitioners ought to discuss it
before making such decisions.
Mellen v. Trustees of Boston University, et al., No. 07-1151, 504 F.3d 21 (1st Cir., 9/21/07); 2007 U.S.
App. LEXIS 22518; 154 Lab. Cas. (CCH) P35,339; 90 Empl. Prac. Dec. (CCH) P42,965; 12 Wage &
Hour Cas. 2d (BNA) 1838;2007 WL 2745105; Internet: courts.gov/pdf.opinions/07-1151-01A.pdf.
Linda Mellen took two separate blocks of FMLA leave to care for her mother. November 17th was a
holiday in one of those blocks, and she contended it should not be included in calculating her FMLA
leave. The appellate court said:
LYNCH, Circuit Judge. Linda Mellen challenges the district court's grant of summary judgment in
favor of Boston University and an individual, Frances Drolette, on her claims that BU interfered with
her substantive rights under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., and
the Massachusetts Small Necessities Leave Act (SNLA), Mass. Gen. Laws ch. 149, § 52D. Mellen
argues that BU miscalculated the period of leave to which she was entitled under both the FMLA and
the SNLA, and also used her leave as a negative factor in an employment decision when it treated
her failure to return to work as a voluntary resignation.
We affirm the decision that BU properly calculated and provided Mellen with the requisite amount of
leave. Her appeal as to the negative factor claim is precluded by her voluntary dismissal [*2] with
prejudice of her retaliation claims against BU. Accordingly, we affirm the district court's judgment. This
case provides the first occasion for judicial interpretation of the intersection of certain FMLA
regulations, 29 C.F.R. § 825.200(f) and 29 C.F.R. § 825.205(a), pertaining to proper allocation of
intermittent leave. We also address again, as we did in Colburn v. Parker Hannifin/Nichols Portland
Div., 429 F.3d 325 (1st Cir. 2005), the distinction between substantive and retaliatory claims under the
FMLA.
Confidentiality: attorney-client, waiver, employer's computer system
Illustrative; not controlling law. A ruling similar to this New York County trial court order might well be
expected here in our jurisdiction. When fashioning email policies and training employees, this
example might help them understand that privacy cannot be expected on the company system.
Confidential communications between a client and attorney can be waived if the client in some
manner discloses the contents of them to others. Dr. Norman W. Scott made the mistake of
communicating with his attorney on the hospital's computer system. His attempt to obtain a protective
order to prohibit the employer from access to those communications failed because the trial judge
ruled he had waived his privilege. Scott v. Beth Israel Med. Ctr., Inc., No. 602736/04 (NYCtyTrl,
10/17/07); Internet: /resource/getfile.php?id=8977. [Note: Employers could create that the same
problem if they communicate via the Internet about legal matters. Strong encryption software is a
possible solution. As always, clients and attorneys should confer about this in advance and follow up
with a letter of understanding.]
Title VII, § 1981: right-to-sue letter, work-sharing state, jurisdiction, precondition, exhaust
administrative remedies, court waiver
Illustrative; not controlling law. This case is valuable in our jurisdiction because the NM Human Rights
Department and the EEOC have worksharing agreement, which means a discrimination claimant may
file at either or both agencies to review and decide: (1) there is probable cause that a law was
violated, or (2) was not violated, or (3) no determination could be made. Part of the statutory structure
is administrative review before a case can proceed to court, a sort of a gate keeping device to make
sure only apparently valid cases reach the formal litigation stage. Under option (1), a right-to-sue
letter would be issued. In this case the claimant filed with the state agency, which is deemed under
the law to be the same as having filed with the federal agency. The requirement of a right-to-sue letter
is a condition precedent [i.e., a threshold requirement or ticket of admission). However, not having
such a letter is not a jurisdictional bar because in appropriate circumstances a court can waive that
requirement. Having right-to-sue letter from the state agency was found to be sufficient. Surrell v.
California Water Serv. Co., No. 06-15400 (9th Cir., 3/11/08); 2008 U.S. App. LEXIS 5146.
Title VII: sexual harassment, reasonable fear of retaliation, small town, anonymous plaintiffs,
supervisor, registered sex offender; motion to intervene
Illustrative, not controlling law. In this unusual case the trial judge allowed intervening plaintiffs to
remain anonymous because it found their fear of retaliation to be reasonable. Evidence offered
showed that:
- the community is small,
- the supervisor is a registered sex convicted of rape and had committed violent crimes against the
women, and
- as supervisor he could get at them in the workplace.
Finding that the need for anonymity and safety outweighed potential prejudice to the employer by
impeding its ability to meaningfully investigate and prepare its defense, the trial judge granted
anonymity for at least the early portion of the case. EEOC v. ABM Industries, (EDCal, 3/4/08); [Note:
No other citation information available as of 3/20/08.]
ADA: Association discrimination, expense analysis
Illustrative; not controlling. Though infrequently claimed, the ADA has a prohibition against
discriminating against person associated a person with disability. Plaintiff's claim survived summary
judgment and will go to trial on the following evidence: the employer encouraged "creative" solutions
to hold down medical expenses in an attempt to diminish its financial losses, and that coincided with
terminating an employee because her husband's prostate cancer treatments were considered too
expensive. Dewitt v. Proctor Hosp., No. 07-1957 (7th Cir., 2/27/08); 2008 U.S. App. LEXIS 4157;
Internet: /v1/cases/1144929
ADEA: temporary restrictions, no accommodation requested, able to perform, inaccurate job

description
Illustrative; not controlling Accurate job descriptions are essential. Barry K. Duncan, age 51, had brief
temporary physical restrictions after a back injury. After the restrictions were lifted the employer
required him to submit to a functional capacities evaluation - which was based on an invalid job
description not matching actual job functions, and that was not shown to had ever been used for any
other employee. Plus, he had successfully performed the job. The employer tried to pass off the error
onto the consultant who had drafted the job description. Duncan v. Fleetwood Motor Homes of
Indiana, Inc., No. 07-1284 (7th Cir., 2/29/08); 2008 U.S. App. LEXIS 4389; Internet:
courts.gov/tmp/BI14QXN4.pdf
Title VII: race, comments
Illustrative; not controlling. "White people teach black kids better . . . than someone from their own
race" along with "I can run this school any way I want to" and similar statements, though not direct
evidence of discrimination would be allowed into evidence as directly demonstrating the supervisor's
alleged discriminatory attitude. King v. Hardesty, No. 06-4163 (8th Cir. 2/29/08); 2008 U.S. App.
LEXIS 4384; Internet: courts.gov/opndir/08/02/064163P.pdf
FRCA: investigation, insufficient procedures
Illustrative; not controlling. The Fair Credit Reporting Act requires reasonable investigative
procedures. An applicant's job offer was withdrawn because a background report included pending
criminal charges pending. Investigation by the applicant took ten minutes compared with thirty-six
days for the employer. The company's motion for summary judgment failed and the applicant will
have his day in court. Wilson v. CARCO Group, Inc., No. 07-7053 (DCCir., 2/29/08); 2008 U.S. App.
LEXIS 4379; Internet: /v1/cases/1145010.
ADEA: formal charge, filing, intake form
Controlling law. As long as a written submission "taken as a whole" could reasonably be construed as
a request for the agency to act, that will be sufficient to satisfy ADEA regulatory requirements. Patricia
Kennedy submitted her claim of age discrimination on an Intake Questionnaire form with six pages of
affidavit attached, rather than on a Charge of Discrimination (Form 5). The United States Supreme
court ruled that her submission was sufficient. In discussing how this ruling might apply to other types
of claims, Justice Kennedy cautioned that "employees…must be careful not to apply rules applicable
under one statute to a different statute without careful and critical examination." However, because
Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act have EEOC filing
requirements similar to the ADEA's, her filing was sufficient. Federal Express Corp. v. Holowecki, No.
06-1322 (2/27/08), 552 U.S. ____; 2008 U.S. LEXIS 2196; Internet:
http://www.law.cornell.edu/supct/html/06-1322.ZS.html; http://www.law.cornell.edu/supct/pdf/06-
1322P.ZO.
ADEA: formal charge, missing page
Illustrative; not controlling law. As in the Holowecki case, strict formality was an invalid basis for
dismissal by the trial judge merely because a page of information was missing. The basis of her claim
was obvious from the charge itself and a simple amendment of her submission to include the missing
page was allowed by the appellate court. Ximines v. George Wingate High School, No. 06-3627-cv
(2nd Cir., 2/20/08); 2008 U.S. App. LEXIS 3494; Internet: /data2/circs/2nd/063627p.pdf .
Fraudulent Inducement: detrimental reliance on false information
Illustrative; not controlling law. In plain talk: a lie, a sucker punch. DuPont employees alleged that the
company fraudulently induced them to accept its offer to terminate their employment with DuPont and
accept employment with a DuPont subsidiary. DuPont subsequently sold the subsidiary, thus leaving
the employees with nothing. In response to the employees' state court suit, DuPont claimed the state
court action was preempted by the NLRA or ERISA. The federal appellate court rejected that defense.
DuPont v. Sawyer, No. 06-20865 Cons. w/ No. 07-40574 (5th Cir., 2/15/08); 2008 U.S. App. LEXIS
3323; Internet: /data2/circs/5th/0740574cv0p.pdf.
Title VII, EPA: equal pay, pay disparity, "gender-neutral" rationale, not similarly situated, deficient
skills, relevance of college degree, valid business reason
Illustrative; not controlling law. Both of Betty Warren's claims were dismissed before trial on summary
judgment.
- EPA: She complained of being paid less than a male counterpart despite her longer tenure. Her
deficient computer skills and high school education contrasted with his proficient computer skills,
bachelor's degree and two master's degrees, which amounted to a valid business reason for the
employer's actions.
- Title VII: She was found not similarly situated to her counterpart because "employers are permitted
to compensate employees differently based on skills that are not specifically required in a given job
description so long as the employer considers those skills when making the compensation decision".
Warren v Solo Cup Co., No. 06-3504 (7th Cir., 2/20/08); 2008 U.S. App. LEXIS 3500; Internet:
/data/CDIL/2:04-cv-02270-40-CDIL.pdf.
Title VII: racial harassment, retaliation, pretext, insufficient proof, attendance, tardiness,
documentation
Weaks v. Roadway Express, Inc., No. 05-1426 (10th Cir., 12/11/07); 2007 U.S.App. LEXIS 28666
Clifford M. Weaks loaded and unloaded trucks. His numerous documented incidents of tardiness,
leaving work early, and unexcused absences were found to be the basis for terminating his
employment, not racial discrimination. The appellate court noted that though he made disturbing
allegations indicating that the employer's shipping docks were "enveloped in a toxic miasma of racial
bias", his proof was insufficient.
Title VII: racial discrimination, hostile work environment, insufficiently severe or pervasive, retaliation,
Burlington Northern & Santa Fe Railway Co.
Egos were not sufficiently bruised to qualify for Title VII protection and relief. [An old academic bit of
humor: "Why are faculty disputes so vicious? Because the stakes are so small."]. What is import here
is the application of the peculiar retaliation case of Burlington Northern & Santa Fe Railway Co. In
order to develop a reasonable working sense of what that case means, we need to study how the trial
and appellate courts are interpreting and applying it. Proof of a retaliation claim requires an employee
to show:
1. they engaged in protected opposition to discrimination;
2. they suffered an adverse employment action after or simultaneously with the protected activity; and
3. there was a causal connection between the protected activity and the adverse employment action.
BN&SF broadened the nature and extent of actions that could be considered adverse, which
essentially is adverse action that would dissuade a reasonable employee from either making or
supporting a charge of discrimination.
Somoza v. University of Denver, No. 06-1488 (10th Cir., 12/21/07); 2007 U.S.App. LEXIS 29746;
2008 U.S. App. LEXIS 1170
Oscar Somoza and Miriam Borstein-Gomez were professors in the Spanish department. Snubbing,
eye rolling, and alleged harassment from an untenured junior colleague seemed to be the major
complaints. However, the appellate court reminded us that the case seemed to be one of bruised
egos, and that lack of good manners isn't enough for a discrimination claim to survive. Title VII and
other discrimination laws are not codes of civility. In this case the actions complained of were neither
severe nor pervasive. The standard of proof is one of objective factors rather than subjective feelings.
Borstein-Gomez also complained that she was not compensated for additional duties in coordinating
instructional sessions, but she lost on that because there was no proof that other coordinators were
compensated for similar duties.
Claims by both plaintiffs that the totality of all of the circumstances added up to be material and
adverse were also rejected.
Public Sector: EEOC settlement agreement, enforcement of
Controlling law in this jurisdiction. Though private sector employees may enforce EEOC settlement
agreements, public sector employees cannot; they are limited to specific governmental administrative
processes. Lindstrom v. United States, No. 06-8059 (10th Cir., 12/14/07); 2007 U.S.App. LEXIS
29172; 2007 WL 4358287.
Title VII: sexual harassment, serial harasser, hostile work environment, "knew or should have known",
inappropriate response; summary judgment
Illustrative; not controlling law. The employer's inadequate response "manifests indifference or
unreasonableness in light of the facts the employer knew or should have known." Several female
employees raised hostile work environment and retaliation claims. As in the February 2008 NMCA
case of Littell v. Allstate, similar acts of harassment of which a plaintiff becomes aware during her
employment can be introduced as evidence of a hostile work environment, even if the other acts were
directed at others and occurred outside of the plaintiff's presence. Hawkins v. Anheuser-Busch, Inc.,
Nos. 81-1153, 81-1993, 697 F.2d 810 (6th Cir., (2/19/08); 30 Fair Empl.Prac.Cas. 1170; 30 Empl.
Prac. Dec. P 33,281; Internet: /v1/cases/475853
Title VII: religion, Wiccan necklace, disparate treatment, remarks
Illustrative; not controlling law. A female employee's manager made pervasive disparaging remarks
about her Wiccan necklace. Hedum v. Starbucks Corp., No. 3:2007cv00024 (DOr, 2/7/08).
Discrimination Evidence: "me too", Sprint/United Management Co. v. Mendelsohn
Controlling law.
"Me too" evidence is a concept that relates to evidence of discrimination by other company
supervisors completely unrelated to a plaintiff's age discrimination lawsuit. Over the years a theory or
concept applied to one kind of discrimination often appears in other types of discrimination cases, so
though this U.S. Supreme Court decision dealt with the ADEA, consider it as possibly applicable to
evidence in other types of discrimination claims. Each case will handle decisions of such evidence in
accordance with the unique facts of that case, i.e., a case-by-case basis.
Sprint/United Management Co. v. Mendelsohn, No. 06-1221 , ____ U.S. ____, (2/26/08); 2008 U.S.
LEXIS 2195
This case holds that no per se rule categorically permits or bars evidence of discrimination by other
company supervisors completely unrelated to a plaintiff's age discrimination lawsuit. Relevance is the
determinative factor under Federal Rules of Evidence 401, 402 and 403. Rule 403 gives trial judges
discretion to exclude evidence that is relevant but which might pose a substantial risk of unfair
prejudice.
NMHRA: hostile work environment, severe, pervasive, permeated atmosphere, numerous complaints,
ineffective response; intentional infliction of emotional distress, prima facie tort; retaliatory
constructive discharge; sufficiency of evidence; compensatory damages; punitive damages; attorney
fees
This NM Court of Appeals case is controlling law in this jurisdiction, and it is not proceeding to the NM
Supreme Court.
Littell v. Allstate Insurance Companies, 2008-NMCA-012; 2007 N.M. App. LEXIS 154; Internet:
/opinions/VIEW/08ca-012.html
State courts seldom adopt federal law outright. Rather, they cite reasoning in federal cases that they
find persuasive in deciding an issue or issues under state law. Thus, in this case a great deal of
federal precedent has been found persuasive and is now part of the body of state law interpreting our
NM Human Rights Act.
Filed on November 21, 2007, this case was not officially published until it appeared in the State Bar of
New Mexico weekly State Bar Bulletin transmitted electronically on 2/14/08. It will not be reviewed by
the NM Supreme Court because no party to the case filed a petition to certify it to that court for
review.
Court's outline:
BACKGROUND
DISCUSSION
I. The District Court Did Not Abuse Its Discretion in Admitting Evidence.
A. Incidents of Which the Plaintiff Was Purportedly Not Aware.
B. Evidence of Matters Post dating Plaintiff's Employment with Allstate.
II. There Was Substantial Evidence to Support Plaintiff's Claims of Hostile Work Environment and
Retaliatory Constructive Discharge, and to Support the Jury's Award of Compensatory Damages.
A. Hostile Work Environment
B. Retaliatory Constructive Discharge
1. Constructive Discharge
2. Retaliation for an Act Public Policy Has Authorized or Encouraged
C. Compensatory Damage for Alleged Emotional Injuries
III. The District court Properly Allowed the Jury to Consider Punitive Damages
IV. The Punitive Damages Award Did not Violate Due Process
V. Plaintiff's Request for Attorney Fees
As stated by the court:
BACKGROUND
{2} Plaintiff began work as a paralegal in Allstate's Albuquerque Staff Counsel Office in 1996. In
October 1998, Todd Aakhus joined the office as lead counsel. At this point, according to Plaintiff,
conditions at the office changed. Aakhus regularly made sexual innuendoes and told dirty jokes that
were demeaning to women. Aakhus allegedly engaged in sexual discussions and flirted with female
employees, inappropriately touched female employees, commented about other employees' sexual
preferences, and tolerated similar conduct by other office employees. When Plaintiff reported these
occurrences anonymously to Allstate's hotline for employment disputes, Allstate investigated, but
Plaintiff did not feel that Allstate did anything to resolve the situation. Also according to Plaintiff,
Aakhus began treating her differently after she complained to the Allstate hotline. He became more
aggressive, disciplined Plaintiff for pretextual reasons, and berated and belittled her publicly.
Ultimately, when Aakhus refused to give Plaintiff a leave of absence so that she could deal with a
"family crisis," Plaintiff resigned.
{3} Plaintiff sued Allstate and asserted claims for violations of the New Mexico Human Rights Act,
intentional infliction of emotional distress, prima facie tort, retaliatory discharge, and punitive
damages. The district court entered summary judgment in favor of Allstate on Plaintiff's claim for
intentional infliction of emotional distress and on her claim under the Human Rights Act to the extent it
was predicated on retaliation. The case went to trial before a jury, and at the close of Plaintiff's
evidence, the district court granted judgment as a matter of law in favor of Allstate on Plaintiff's claim
for prima facie tort. After deliberating, the jury returned a verdict in favor of Plaintiff on her claims of
hostile work environment sexual harassment and retaliatory discharge. The jury awarded Plaintiff
$360,000 in compensatory damages and $1 million in punitive damages. The district court denied
Allstate's subsequent motion for judgment notwithstanding the verdict or, in the alternative, for
remittitur or a new trial. This appeal followed. We provide additional facts in our discussion.
[Note: Detailed discussion by the court follows for seven and a half pages. Though much of the law is
familiar federal authority, it is important to note how much of it has become state law.]
ERISA: FAA; 401(k), defined contribution plan, fiduciary duty, breach of duty, failure to follow
instructions, losses; Massachusetts Mutual Life Ins. Co. v. Russell, overruled
This landmark United State Supreme Court case is controlling law in our jurisdiction. It allows a
401(k) participant to personally sue for breach of fiduciary duties resulting in losses to plan
participants. A fiduciary duty is one of trust and requires loyalty, care, prudence, promptness,
attention, etc., when handing the property of others. Of interest to attorneys, this case overrules the
earlier USSC case of Massachusetts Mutual Life Ins. Co. v. Russell that denied plan participants the
right to sue.
Lesson: The implication of this decision is that ERISA plan managers need to pay close attention to
their customers' instructions and investments.
LaRue v. DeWolff, No. 06-856, ____ U.S. ____, (2/20/08); 2008 U.S. LEXIS 2014 (2/20/08); Internet:
/uploadfiles/laruesupremes.pdf
James Larue sued Dewolff, Boberg & Associates, Inc., alleging brief of fiduciary duty by failing to
carry out his trading instructions and allegedly causing a loss of $150,000 to his 401(k) defined
contribution plan.
ERISA § 502(a)(2) provides for suits to enforce the provisions of § 409, which created fiduciary
duties:
Any person who is a fiduciary with respect to a plan who breaches any of the responsibilities,
obligations, or duties imposed upon fiduciaries by this title shall be personally liable to make good to
such plan any losses to the plan resulting from each such breach, and to restore to such plan any
profits of such fiduciary which have been made through use of assets of the plan by the fiduciary, and
shall be subject to such other equitable or remedial relief as the court may deem appropriate,
including removal of such fiduciary. A fiduciary may also be removed for a violation of section 411 of
this Act." 88 Stat. 886, 29 U.S.C. § 1109(a).
Why did the law change? Massachusetts Mutual Life Ins. Co. v. Russell, decided by the USSC in
1985 had denied claims for losses under such plans. The reason expressed by the USSC in 2008 for
now deciding otherwise is that defined benefits plans were prevalent back then and benefits amounts
were secure, whereas the defined contribution plans prevalent now have no protections for the
amount of benefits that an employee might obtain. LaRue alleged he lost $150,000 because DB&A
failed to carry out his trading instructions, thus adversely affecting the amount of his benefits.
Arbitration: arbitration, federal preemption of state law, Federal Arbitration Act, FAA
This landmark United State Supreme Court case is controlling law in our jurisdiction. The decision
hold that: "When parties agree to arbitrate all questions arising under a contract, state laws lodging
primary jurisdiction in another forum, whether judicial or administrative, are superseded by the FAA."
Preston v. Ferrer, No. 06-1463, ____ U.S. ____, (2/20/08); 2008 U.S. LEXIS 2011; Internet:
http://www.law.cornell.edu/supct/html/06-1463.ZS.html
FMLA: Notice, sufficiency
"The critical test for substantively- sufficient notice is whether the information conveyed to the
employer was reasonably adequate to apprise the employer of the employer's request to take leave
for a serious health condition that rendered him unable to perform the job." Sarnowski v. Air Brooke
Limousine, Inc., No. 2144, 510 F.3d 398 (3rd Cir., 12/1/07); 2007 U.S. App. LEXIS 28668; 155 Lab.
Cas. (CCH) P35,373; 20 Am. Disabilities Cas. (BNA) 100; 13 Wage & Hour Cas. 2d (BNA) 73;
Intrernet: http://vls.law.villanova.edu/locator/3d/December2007/062144p.pdf.
Title VII: religion, reasonable accommodation
Illustrative, not controlling. Under Title VII an employer is not required to completely eliminate a
conflict between work and religious beliefs. If a reasonable accommodation is offered, that should be
sufficient. In this case the employee's request involved an extraordinary amount of hours. It is
appropriate to consider the impact on both the employee and the employer. EEOC v. Firestone Fibers
& Textiles Co., (4th Cir., 2/11/08); Internet: courts.gov/opinion.pdf/062203.P.pdf. [Note: As always, it
will be important for an employer to have a valid reason adequately substantiated by documentary
evidence showing valid consideration of the request and a genuine hardship for the business.]
Professional Rescuers: firefighters, “firefighter rule” compared and contrasted with police, emergency
response teams, and other rescuers; bystander recovery; intentional infliction of emotional distress;
intentional torts; reckless misconduct; strict liability; dangerous premises or locations, preventive
measures
This New Mexico Supreme Court case is controlling law in our state jurisdiction, and the New Mexico
Court of Appeals case that our Supreme Court reversed can provide informative background reading
on the nature and extent of the situation.
Any employer either providing services of emergency rescuers or possibly being a recipient of such
services should thoroughly discuss this case with legal counsel.
- Employers typically providing such services would be governmental agencies, though volunteer
agencies and private contracting agencies may also be subject to this decision.
- Employers requiring emergency services on their premises or locations that might involve gruesome
injuries should also read these two cases to consider possible safety measure to prevent injuries
and/or death and prevent liability.
As for briefing, I recommend going to the JEC [Rozier E. Sanchez Judicial Education Center of New
Mexico] website for an excellent summary overview of the two decisions to help you better
understand the ultimate NMSC decision: http://jec.unm.edu/resources/cases/civil/civil_12.htm.
Full versions of these decisions can be obtained from:
- Baldonado v. El Paso Natural Gas Company, 2008-NMSC-005; Internet: /opinions/VIEW/08sc-

005.html
- Baldonado v. El Paso Natural Gas Company, 2008-NMCA-010; Internet: /opinions/VIEW/08ca-

010.html
Title VII: discrimination sex, gender, familial status; summary judgment
Controlling law in our jurisdiction. Though “familial status” is a recognized legal theory in housing
discrimination claims and has some value in some jurisdictions for some other discrimination claims,
our 10th Circuit Court of Appeal rejected it in a sexual discrimination claim involving a father
discharged for hiring his wife and daughter in violation of the discretionary anti-nepotism policy of the
non-profit organization’s handbook. Adamson v. Multi Community Diversified Services, Inc., No. 05-
3478 (10th Cir., 2/1/08); 2008 U.S. App. LEXIS 2418; Internet:
http://ca10.washburnlaw.edu/cases/2008/02/05-3478.pdf.
Smoking, ERISA: privacy
Illustrative, creative approach, but not controlling law in our jurisdiction. An individual either not yet an
employee or actually a new employee failed the company’s nicotine test, which violated the
employer’s prohibition against smoking, even when not at work. One issue was employment status
sufficient to qualify for ERISA protection. Asserting invasion of privacy in violation of ERISA
prohibitions, the employee had a low standard to remain in court: a likely, credible interest that
outweighs the employer’s interest and activities outside of work convinced the trial judge to let the
case proceed past dismissal on the pleading for failing to state a claim upon which relief could be
granted. Now, whether termination was an interference with an intent to interfere with ERISA
employment rights is yet to be determined. §510 relates to discriminatory conduct directed against
individual, not the plan in general. Rodrigues v.The Scotts Co., LLC (DMass, 1/30/08); Internet:
courts.gov/dc/cgi-bin/recentops.pl?
filename=otoole/pdf/rodrigues%20v%20scotts%20co%20mot%20to%20dismiss%20order.pdf.
FMLA: proposed rules changes
Check this informative summary from Buchanan Ingersoll & Rooney, Proposed Rule on the Family
Medical and Leave Act, February 12, 2008, by David L. Hackett, Ronald L. Platt, Mark W. Lenker and
Ibie Adeyeye at /news.php?NewsID=2589.
ADA: failure to accommodate
Illustrative; not controlling law. Punitive damages award of $100,000 on an $8000 compensatory
damage was affirmed. FedEx failed to reasonably accommodate a package handler who qualified as
legally deaf under the ADA by not providing an American Sign Language interpreter. The punitive
damages ratio of 12.5:1 was also affirmed [Note: there has been some opinion that perhaps
exceeding 10:1 was an outer limit.] EEOC v. Fed Ex Corp., 4th Cir., 1/23/08), Internet:
http://www.eeoc.gov/press/12-22-04.html [Note: no additional citation available as of 2/7/08].
NLRB: interrupting organizer during presentation
Illustrative; not controlling law. HR staff twice interrupted a union organizers discussion with views of
the employer on card signing. Those interruptions were found to be of short duration, not out of the
ordinary, and not coercive. Check this case for a new three-factor test of how much intrusion might be
deemed coercive. Local Joint Exec. Bd. of Las Vegas, Culinary Workers Local #226 and Bartenders
Local 165 v. NLRB (9th Cir., 1/28/08) [Note: no additional citation available as of 2/7/08].
FMLA: temporarily expanded for military
Controlling law for federal Fiscal Year 2008. Section 585 of the National Defense Authorization Act for
Fiscal Year 2008 ("NDAA") (H.R. 4986) amends the federal Family and Medical Leave Act of 1993
("FMLA") to provide two new types of FMLA leave to employees with family members serving in the
military.
1. The NDAA amends Section 102 of the FMLA to expand the maximum amount of time from 12
weeks to 26 weeks that an employee would otherwise be entitled to take off work to care for a family
member with a serious health condition when the health condition is incurred by a member of the
military while in the line of duty on active duty.
2. Employees eligible for this leave now include "next of Kin" in addition to the spouse, children and
parents of the injured service member.
This leave is available only during a single 12-month period and it is also combined with all other
FMLA leaves, limiting FMLA leave for all purposes to no more than a total of 26 weeks of leave during
a 12-month period. Internet: /articles.cfm?action=view&publication_id=2006.
Title VII: intentional infliction of emotional distress, retaliation
Illustrative, but not controlling law.
An African-American employee had a pending EEOC charge, and his employer fired him for refusing
to sign a compulsory arbitration agreement that included his pending charge. His attempt to amend
the agreement to exclude that charge was rejected. In the past other employees were fired under
similar circumstances. Another worker who had refused that kind of offer had been asked to
reconsider, but this worked had not been given that option. A causal relationship was found to exist
between the pending EEOC and his discharge, and his favorable jury verdict and $500,000 punitive
damages award was upheld on appeal. Goldsmith v. Bagby Elevator Co., Inc., No. 06-14440 (11th
Cir., 1/17/08); 2008 U.S. App. LEXIS 979; Internet: /v1/cases/685847
Whistleblower: wrongful discharge, intentional infliction of emotional distress claim
Illustrative, but not controlling law.
A nuclear medical technologist alleged he had observed and reported numerous violations of Nuclear
Regulatory Commission (NRC) regulations during his tenure at the hospital, the hospital's
administration allegedly ignored his reports and discouraged him from bringing violations to attention.
After firing his it knowingly filed a false charge against him with the NRC to avoid NRC regulatory
action against the hospital. This conduct was found to be sufficiently outrageous to state a claim for
emotional distress and was allowed to proceed to jury trial. Dismissal of his wrongful discharge claim
was affirmed. Kassem v. Washington Hosp. Ctr., No. 06-7161 (DC Cir., 1/22/08); 2008 U.S. App.
LEXIS 1174: Internet: /v1/cases/685948
FMLA, Pregnancy Discrimination Act: eligibility, computing hours, intermittent leave; pregnancy,
termination, no pretext; termination, performance, dependability; discrimination, retaliation
Valuable detailed illustration of a complex case, well worth read entire decision for helpful guidance,
but not controlling law in our jurisdiction. As usual, the Internet URL below will provide you with the full
text of this instructive opinion.
Accurately counting the 1250 hours in a 12 month period required for FMLA leave is important. This
employee claimed 2,300 but did not have sufficiently detailed records. On the other hand her
employer's detailed records showed she had worked 1,127 hours (and 41 minutes) in the 12 months
prior to her request for intermittent leave. Detailed records and a detailed written explanation of the
basis for her termination were sufficient for summary judgment dismissal of her claim, and the
employer avoided trial.
Staunch v. Continental Airlines, 07-3315 (6th Cir., 1/808); 2008 U.S. App. LEXIS 196; 2008 FED App.
0004P; Internet: courts.gov/opinions.pdf/08a0004p-06.pdf
Holly L. Staunch sued for denial of her alleged FMLA rights, for violation of the Pregnancy
Discrimination Act, and for retaliation.
Intertwined with these claims were issues of poor performance and undependability. Accurate and
detailed documentation warning, counseling and documenting provided a solid basis for ruling in
favor of the employer.
The evidence of Continental Airlines clearly showed she had worked less than the 1250 hours in the
12 months before her leave, she could not successfully refute that evidence, and the court found she
was not an employee eligible for FMLA leave.
Her allegations of Pregnancy Discrimination Act failed because she did to prove that her employer's
evidence of a valid business reason for her termination was a pretext.
And finally, her retaliation claim failed for lack of sufficient evidence.
ADA: regarded as, jury instruction refused
Illustrative; not controlling law in our jurisdiction.
Because the employer's understanding of the employee's work restrictions were based on here
treating physician's written work restrictions, abiding by them did not amount to the employer
stereotypically regarding the employee as disabled in violation the ADA. Gruener v. Ohio Cas. Ins.
Co., No. 05-4220 (6th Cir., 1/3/08); 2008 U.S. App. LEXIS 30; 2008 FED App. 0001P (6th Cir.);
Internet: courts.gov/opinions.pdf/08a0001p-06.pdf .
NLRB: illegal workers, NLRA rights
Be aware of this federal appellate court decision from outside of our federal jurisdiction holding that
illegal undocumented alien workers will be considered as employees protected under the National
Labor Relations Act, even for voting. This DC Circuit case is but one of many decisions making
similar rulings, so it is an import one to bear in mind. Agri Processor Co. v. National Labor Relations
Board, No. 06-1329 consolidated with 06-1349 (DC Cir., 1/4/08); 2008 U.S. App. LEXIS 101; Internet:
http://www.ll.georgetown.edu/federal/judicial/dc/opinions/06opinions/06-1329a.pdf .
NLRB: email policy, no union solicitation, use of company email limited to non-work matters
Controlling law [for now, at least, because NLRB decisions can change more readily than judicial
decisions].
The Register-Guard newspaper of Eugene, Oregon, written policy prohibited use of email to "non-job
related solicitations", though in practice it allowed some non-work-related emails. No evidence was
presented that it permitted emails soliciting support for groups or organizations. When the president
of the newspaper's Newspaper Guild organization sent union email messages the company sent her
two written warnings to stop using the company system for such communication. Relying on prior
reasoning of the 7th Circuit Court of appeals distinguishing between personal non-work-related
matters and work-related matters, the National Labor Relations Board ruled in favor of the employer.
The Guard Publishing Company d/b/a The Register-Guard and Eugene Newspaper Guild, CWA Local
37194, Nos. 36-CA-8743-1, 36-CA-8849-1, 36-CA-8789-1, and 36-CA-8842-1 (NLRB, 12/16/07);
Internet: http://www.nlrb.gov/shared_files/Board%20Decisions/351/V35170.pdf. [Note: Check at
/pdf/RSRe-mailArticle.PDF for a news article that the NLRB has issued new regulations consistent
with the ruling in this case.]
Title VII: Transsexual; gender stereotyping; McDonnell Douglas test, pretext
The employee was transitioning from male to female, and as is often the case, the dispute was which
toilet facilities could be used. Transsexuals are not expressly protected by federal law, so the
employer's motion for summary judgment (dismissal without trial) was granted. Another approach
might have been for the employee to have alleged gender stereotyping, which refers to discrimination
based on a person being perceived as not behaving like a typical man or woman might, i.e., either a
man acting too feminine or a woman acting too masculine. Though gender stereotyping would not
have succeeded in this particular case, it is important to note that this decision indicates our 10th
Circuit Court of Appeals seems willing to decide an appropriate case of gender stereotyping in the
future.
Had this case involved a similar set of facts in New Mexico, it might have succeeded if a violation of
the NM Human rights had been alleged. NM has not decided the toilet issue, but Minnesota has
under its essentially similar law involving the Moines case: after the genital operation, the change in
toilet use can be made.
This Etsitty case is controlling law in our jurisdiction.
Etsitty v. Utah Transit Authority, No. 05-4193, 502 F.3d 1215 (10th Cir., 9/20/07); 2007 U.S. App.
LEXIS 22989; 101 Fair Empl. Prac. Cas. (BNA) 1357; Internet: courts.gov/opinions/05/05-4193.pdf
The federal courts decided against Krystal Etsitty on the grounds that federal law does not expressly
protect transsexuals, and the transit authority had a valid concern over potential litigation from the
public concerned over which toilet facilities Etsitty was using.
Proof of indirect discrimination is handled by the McDonnell Douglas test:
1. An employee must first present a prima facie case [basically legally sufficient] of discrimination.
2. If the employee does so, the burden then shifts to the employer to produce a legitimate,
nondiscriminatory justification for taking the disputed employment action.
3. If the employer satisfies this burden, the employee then must provide evidence that the employer's
proffered reasons are merely a pretext for discrimination.
Though the requirement to present evidence shifts back and forth, the employee always has the
burden of proving illegal discrimination.
The first two elements were not at issue, but the employee failed on the pretext issue because the
employer had a valid, non-discriminatory reason for firing the employee.
ADEA: rudeness; McDonnell Douglas test, no pretext; no disparate treatment; summary judgment in
favor of employer
Cranky behavior is not limited to any particular age group.
Controlling law in our jurisdiction.
Riggs v. Airtran Airways, Inc., No. 06-3250, 497 F.3d 1108 (10th Cir., 8/8/07); 2007 U.S. App. LEXIS
18769; Internet: http://ca10.washburnlaw.edu/cases/2007/08/06-3250.htm
The employee's rudeness to customers was a valid, non-discriminatory reason for firing her.
ADA, FMLA: termination, discipline, attendance, valid business reason
Illustrative, but not controlling law in our jurisdiction.
Holding that "[R]egular and reliable attendance is a necessary element of most jobs," the court found
no reason to decide against the employer. The employee neither notified her employer that her
absences were because of a serious medical condition, i.e., depression, as required by the FLSA, nor
did she request a reasonable accommodation under the ADA. Rask v. Fresenius Med. Care. N. Am.,
No. 06-3923 (8th Cir., 12/6/07); 2007 U.S. App. LEXIS 28198
ADEA: reduction in force, RIF, prima facie requirements, similarly situated job, comments not
sufficiently related to layoff decision, Reeves v. Sanderson Plumbing Prods., Inc.
Illustrative, but not controlling law in our jurisdiction.
Elimination of a job in a RIF does not automatically provide a basis for an age discrimination claim.
Factors to be considered include:
- The case of Reeves v Sanderson Plumbing Prods, Inc., did not address prima facie requirements in
the RIF context,
- assumption of the employee's duties by a younger worker does not in and of itself create an
inference that the employment decision was based on unlawful criterion,
- evidence by the 53 year-old employee that 71 percent of the eliminated jobs were held by workers
over age 50 was meaningless by itself [i.e., needs other evidence of discrimination],
- evidence that a younger worker was promoted to a similarly-titled job two years after the RIF did not
create an inference of bias,
- nor were remark from a supervisor or manager in another department that a worker's job was going
to someone younger, or a plant manager's comment that all positions (not employees) considered
were eliminated sufficient to prove age discrimination. Ward v. Int'l. Paper. Co., No. 06-2256 (8th Cir.,
12/5/07); 2007 U.S. App. LEXIS 28006; 102 Fair Empl. Prac. Cas. (BNA) 167; 90 EPD 43,041 CCH
Title VII: gender, hostile work environment, retaliation
Though not controlling law, this case presents a perspective to be aware of. A professor's secretary
had neither the professor watching pornographic videos nor seen them herself. However, as his
secretary, she had to handle them while processing his mail and she saw on her office computer
pornographic websites visited by him. In retaliation for her complaints her duties were drastically
reduced, among other reprisals. The appellate court stated that the mere presence of pornography
can demean the status of women, and that a reasonable jury could find that much of the professor's
conduct was offensive to women and was intended to provoke the secretary's reaction as a woman.
Patane v. Clark, No. 06-3446-cv (2nd Cir., 11/28/07); 2007 U.S. App. LEXIS 27391
ADA: nurse, chemical dependency, narcotics, prior drug theft, unable to reasonably accommodate;
major life activity not substantially limited
This case is not controlling law, but it illustrates that her conduct of being previously fired for Vicodin
theft, not her drug dependency, was the cause for her dismissal. No reasonable accommodation
could be found for her in the ward in which narcotics were administered to children an essential
function of her job. Further, her successful employment as a nurse at other types of facilities defeated
her claim of being disabled from a broad range of employment. Dovenmuehler v. St. Cloud Hospital,
No. 07-1096 (8th Cir., 12/4/07); 2007 U.S. App. LEXIS 27953; Internet:
courts.gov/opndir/07/12/071096P.pdf
Title VII: "cultural authenticity", essential function
Not controlling law in this jurisdiction, but illustrative of the need for adequate performance. Disney's
Epcot Center runs a restaurant with a Norwegian theme, had a business need for "cultural
representatives" to interact with guests to share the culture, tradition, language and history of the
country they represent. Gupta, an Asian employee, had very limited knowledge of the Norwegian
culture and had only visited the country for a couple of days. He was discharged for deficient
qualifications, as was another similarly deficient employee, and thus there was no disparate treatment
of Gupta. Summary judgment in favor of the employer was affirmed. Gupta v Walt Disney World Co.,
No. 07-11409 (11th Cir., unpublished, 11/27/07); 2007 U.S. App. LEXIS 27503; Internet:
/vid/32458595.
Title VII: gender, transsexual, stereotypes
Not controlling, but illustrative. Schroer was in the process of changing gender from male to female.
Transsexuality was not a bar to this gender discrimination claim. One need not conform to an
employer's stereotypical notions of gender appearance and behavior. Schroer v. Billington (DDC,
11/2807)
Title VII: sexual harassment, spoken and physical assault, confusing and ineffective policies;
retaliation
Strong illustration, though not controlling law in our jurisdiction. Going to jury trial is this case in which
a manager allegedly commented inappropriately to a 16 year old female and also physically
propositioned her. The employer lost on two points:
1. Harassment because the employer's harassment prohibition and prevention policies were
confusing and ineffective.
2. Retaliation against the young woman by the adverse employment action of firing her after her
mother complained to the employer. EEOC v. V&J Foods, Inc., No. 07-1009, (7th Cir., 11/ 7/07): 2007
U.S. App. LEXIS 25856; 101 Fair Empl. Prac. Cas. (BNA) 1676; Internet: /v1/cases/194530
FLSA: exempt, independent judgment, managerial duties
Not controlling law in our jurisdiction, but this is persuasive reasoning and a valuable example of
judicial interpretation of the new overtime exemption regulations. Often courts must examine the
actual circumstances to decide not necessarily covered in agency regulations because not everything
can be anticipated and the courts often have to consider the intent of the law.
Cash v. Cycle Craft Co., Inc., No. 07-1768 (1st Cir., 11/20/07); 2007 U.S. App. LEXIS 26808; Internet:
courts.gov/pdf.opinions/07-1768-01A.pdf
Cycle's "customer relations manager" created his own proposed job description, though as a practical
matter he did not perform all of the duties described in it. Nonetheless, the appellate court found he
met the requirements for the administrative exemption and was thus not entitled to overtime pay:
- his $60,000 salary was equal to or greater than that of other managers,
- he usually attended at least the first part of management meetings to report on status of motorcycles
on order (and then was told to leave), but
- he did not supervise or manage other employees.
The appellate court reasoned that:
- he was paid a salary,
- his primary duty was related to management, and
- he "did not simply produce a product; he exercised independent judgment as he engaged in the
company's business operations."
Title VII: religion, performance, personal religious beliefs

Not controlling law in our jurisdiction, but a good example of how focusing on performance rather than
belief avoided a discrimination judgment against the employer.
Grossman v. South Shore Public Sch. Dist., No. 06-4294 (7th Cir., 11/15/07) 2007 U.S. App. LEXIS
26479; Internet: /CM/Custom/881AL4YQ.pdf
Denied tenure and her guidance counselor employment contract being not renewed, the employee
claimed religious discrimination. Her claim failed because there is a fine distinction between religious
beliefs held and conduct motivated simply by one's religion:
- she discarded the school's instructional materials on how to use condoms,
- ordered literature on abstinence, and
- prayed with students in her office.
The appellate court pointed out that even in a small, rural Christian school district such as this one, "
[t]eachers and other public school employees have no right to make the promotion of their religion a
part of their job description and by doing so precipitate a possible violation of the First Amendment's
establishment clause.
Title VII: effective anti-harassment policy, failure to follow; adverse employment action, resignation, no
constructive discharge
Not controlling law in our jurisdiction, but a good example of how an employee trained by the
company about its anti-harassment policy lost her claim because she failed to follow the policy.
Essentially, a complaining employee must allow the employer to take prompt, appropriate remedial
action because one of the purposes of the anti-harassment laws is to provide a workplace for all
employees that is free of such discriminatory behavior. The employee defeated her claim by resigning
before the employer could attempt to remedy the problem.
Brenneman v. Famous Dave's of Am., Inc., No. 06-1851 (8th Cir., 11/16/07) 2007 U.S. App. LEXIS
26558; Internet: /v1/cases/218600
This employer had an effective anti- harassment policy established and had properly trained its
employees about it, which is reasonable care taken to prevent harassment. After the alleged
harassment incident it continued to investigate, proposed solutions and asked the victim to return to
work after she had resigned. That resignation was not deemed to be an adverse employment action
of constructive discharge (i.e., the employee was not essentially forced out). The appellate court
found that she unreasonably failed to take advantage of the assistance offered by her employer, even
though she claimed she feared adverse repercussions. Importantly, she needed to cooperate with her
employer to improve her working conditions.
Title VII: decisionmaker, adverse information, relevance
Remember, if the decisionmaker in an adverse employment action does not have unfavorable
discriminatory information or does not have the discriminatory mindset of others, a discrimination
claim may fail. This case is not controlling law in our jurisdiction, but it illustrates that relevance is
important:
- some employee had written "sexually tinged" poems received by a female coworker,
- the decisionmaker's information was that expert handwriting analysis determined that the employee
in question had likely written those poems, and
- there was no evidence that the decisionmaker shared the sentiments age bias of two other
managers.
Critical in these cases is what the decisionmaker believed at the time of taking the adverse
employment action. Bennett v. Saint-Gobain Corp., No. 07-1219 (1st Cir., 11/2/07); 2007 U.S. App.
LEXIS 25586; Internet: courts.gov/pdf.opinions/07-1219-01A.pdf
Arbitration: FMLA, company policy, binding effect, no signature, Federal Arbitration Act, no signature
Though not controlling law in this jurisdiction, this case enforced a policy to arbitrate pursuant to the
Federal Arbitration Act even though the employee did not expressly assent to be bound by the policy,
which stated that "continuing employment with [the company] means that you agree" to its terms, and
the employee had continued working with the company after being informed of the policy. Seawright v
American Gen. Fin. Serv., No. 07-5091 (6th Cir., 11/1307); 2007 U.S. App. LEXIS 26328; 2007 FED
App. 0451P (6th Cir.); Internet: courts.gov/pdf.opinions/07-1219-01A.pdf
Title VII: gender harassment, negligent response, insufficient follow-up
Here is another good illustration from a case that demonstrates a valid point even though it is not
controlling law in our jurisdiction. Disciplined twice for harassing two female employees and having
been warned in writing of immediate termination if it occurred again, the employee allegedly
continued, as did complaints from the women. Not only did the employer not terminate the offender, it
decreased rather than increased its threatened sanctions. The targets contended such insufficient
response by the employer likely emboldened that offender to continue his harassment, and the
appellate court noted that a reasonable jury could find the employer was liable for negligent response.
Engel v. Rapid City Sch. Dist., 8thCir, November 9, 2007); 90 EPD 43,011); Internet:
Title VII: religion, reasonable accommodation, flex-time, interactive process, employee failure to
respond
This case is not controlling law in our jurisdiction, but it illustrates the importance of reasonable
accommodation and the need for both employer and employee to engage in an interactive
accommodation process. An employee of the Seventh Day Adventist faith working as a unit secretary
in a medical center requested accommodation to not work Friday or Saturday shifts from 3 p.m. to 11
p.m. Her employer did not terminate her, but several times offered her via telephone and letter
alternative flex time positions. The employer's shift rotation system was neutral, the employer allowed
her to swap shifts, it did not discipline her for missing some scheduled shifts, and it encouraged her to
transfer to another position. She failed to respond to those reasonable offers and her religious
discrimination claim was dismissed. Morrissette-Brown v. Mobile Infirmary Med. Ctr., (11th Cir.,
11//7/07), 90 EPD 43,001; Internet: courts.gov/opinions/ops/200614082.pdf
Title VII: gender discrimination, disparate treatment, similarly situated employee, union; beach of duty
to represent fairly
Less aggressive union representation of a female members compared with similarly situated male
members was a breach of the union's duty to pursue a grievance. This case is not controlling law in
our jurisdiction, but it illustrates a good point. Beck v United Food and Commercial Workers Union,
Local 99, No. 05-16414 (9thCir, 11/1/07); 2007 U.S. App. LEXIS 25505; Internet:
courts.gov/ca9/newopinions.nsf/04485f8dcbd4e1ea882569520074e698/dd65ba6bbd0cc48b88256a4f00
Title VII: adverse employment action
This case failed because the employee's allegations of interference with his managerial prerogatives
because they did not (1) tend to materially impair either his job performance or (2) advancement
prospects and thus were not adverse employment actions. Neither was his transfer an adverse
employment action because it was made in response to his previous request. This case is not
controlling law in our jurisdiction, but it illustrates a good point. Patterson v Johnson, No. 05-5415
(DCCir., 10/3007); 2007 U.S. App. LEXIS 25353; , 90 EPD 42,997; Internet:
courts.gov/docs/common/opinions/200710/05-5415a.pdf
EPLI: Employment Practice Liability Insurance
Failure to timely notify the insurance carrier of a claim, in this case an EEOC charge, defeated the
employer's demand for coverage after it had defended and settled a claim. This case is not controlling
law in this jurisdiction, but it illustrates a critically important point. American Center for Int'l Labor
Solidarity v. Federal Insurance Co., No. 04-01523 (CKK) (DDCir., 10/15/07); Internet: courts.gov/cgi-
bin/show_public_doc?2004cv1523-27
FLSA: exempt status, overtime pay, non-managerial tasks
This case is not controlling law in our jurisdiction, but it shows an interesting interpretation of
managerial status.
Thomas v. Speedway Superamerica, LLC, No. 06-3768 (6th Cir., 10/30/07); 2007 U.S. App. LEXIS
25355; 2007 FED App. 0436P (6th Cir.)
Mabel Kay Thomas spent about sixty percent of her day at work performing non-managerial tasks,
but management was her primary duty as manager of a branch of a retail chain. Because she was
manager she was a bona fide executive employee under the FLSA and was not entitled to overtime
pay, and regular visits and phone calls from the district manager, her direct superior, did not alter her
executive status.
Illegal alien workers: criminal convictions
Here is a warning to heed from a case that is outside of our jurisdiction. Though it is not controlling
law here, it raises the stakes for those too close to the line for an immigration law violation.
U.S. v Khanani, (11th Cir., 10/2/07) [Note: no additional citation information found]
Criminal convictions of a Florida retail store owner and his accountant were upheld for violations of
the Immigration Reform and Control Act (IRCA). The criminal charge was for "harboring, encouraging
or inducing aliens to enter or reside illegally in the US". The defendants contended that "merely"
employing illegal aliens did not support felony convictions. They had requested that the trial judge
instruct the jury that mere employment was insufficient to support criminal convictions. The trial judge
refused that request, and the appellate court affirmed that ruling.
Title VII: gender discrimination, severe, pervasive, pattern and practice; class action, punitive
damages, bifurcated trial
This case will mainly be of interest to trial attorneys, and it is not controlling law in this jurisdiction.
EEOC v International Profit Associates, Inc., (NDIll, 10/23/07) [Note: no additional citation information
found]
Punitive damages are at issue in this gender discrimination class action case brought by the EEOC in
the U.S. District Court, Northern District of Illinois. The trial judge has ruled that the EEOC will not be
able to prove punitive damages on a class-wide basis in this pattern or practice case. Instead, the trial
will be bifurcated [split into two parts], liability and then damages. Liability will be determined in the
class action part of the trial, and if the defendant is found liable, then the EEOC would be granted
injunctive relief [but not damages at that point]. If the jury finds the defendant liable, then the second
phase of the trial will deal with damages, compensatory and punitive. Further, the trial judge ruled that
the EEOC must prove in both phases of the trial that the harassment was sufficiently severe or
pervasive to be sufficient to prove liability, and this is a change from an earlier ruling in that district
that would have allowed a "rebuttable presumption of individual liability to all women in the
workplace." [Note: Now those of you who are not lawyers will see why only lawyers will primarily be
interested in this case.]
ADA: failure to accommodate, tardiness, handicapped, parking space, wheelchair obstacles,

interactive process
$100,000 is a costly price for failing to engage in an interactive process to see if there is a reasonable
accommodation. Modification of a work schedule is recognized as a possible one under the ADA.
This case is not controlling law in our jurisdiction, but it is an excellent illustration of what to do and
not to do.
EEOC v. Convergys Customer Management Group, Inc., No. 06-2874 (8th cir., 7/6/07); 2007 WL
1948467; Internet: courts.gov/opndir/07/07/062874P.pdf
Ahmet Yigit Demirelli was frequently tardy for a number of reasons:
- only two spaces were reserved for handicapped employees,
- cubicles in the call center were not assigned,
- aisles were narrow and difficult to navigate in a wheelchair,
- a number of workstations were inoperable and searches for an unoccupied operable one was
difficult, and
- his request for a reserved operable station was initially granted but later revoked.
Demirelli's efforts to be on time were:
- arriving at work an hour early,
- parking at a movie theater parking lot (though the ten minute trip proved too difficult),
- requesting a reserved work station,
- requesting a different shift, and
- requesting a modified work schedule
An employee has an obligation to make known to the employer the need for accommodation, and
once the employer is notified the employer and employee need to engage in an interactive process to
try to find a reasonable appropriate accommodation.
The appellate court found that the employer failed to do that and that the employee had made a
number of reasonable efforts to solve the tardiness problem. Convergys argued that punctuality was
an essential function of the job, but failed to produce substantiating evidence. A modified work
schedule is one of the accommodations recognized by the ADA.
The $100,000 jury verdict was affirmed.
Title VII: religion, sabbath; accommodation, Pyro Mining test; discrimination, McDonnell Douglas test,
Burlington Northern test; summary judgment
Religious discrimination is a sensitive and difficult topic because strong beliefs and emotions often
are involved.
This case is not controlling law in our jurisdiction, but it illustrates the legal laws, precedents and
considerations involved.
Tepper v. Potter, No. 06-4182 (6th Cir., 10/15/07); 2007 U.S. App. LEXIS 24090; 2007 FED App.;
Internet: /opinions/us_appeals/2007/101507/37349.pdf
Martin Tepper . . .
. . . is a Full-Time Regular Letter Carrier for Chagrin Falls USPS. He began his employment on May
3, 1980, and became a Messianic Jew during the 1980s. Messianic Jews hold Sabbath each
Saturday and observe Jewish holidays. In 1992, Tepper requested an accommodation from Chagrin
Falls USPS that would allow him to not work on Saturdays. This accommodation was granted and
from April 1992 until January 2003, Tepper was not required to work on Saturdays or other significant
Jewish holidays.
Over the years staffing requirements at the postal station decreased, Tepper did not attend a union
meeting held to discuss staffing and scheduling matters, and the unanimous vote recommended
cutting his accommodation.
Over the many years of his USPS employment there had been some grumbling about Tepper's
accommodation, and a few jibes at this religious status. Accommodating Tepper put hardships on
other carriers. Overtime accommodation costs in the year 2000 were $8,769.60 and $7,015.68 in
2001. Management encouraged Tepper to reserve some of his vacation time for Saturday absences
and allowed annual leave without pay and exchanges of days off with other carriers.
Tepper sued under Title VII for (1) failure to accommodate his religion and (2) religious discrimination
because use of annual leave and leave without pay reduced his annual pay and future retirement
benefits. Summary judgment was granted on the employer's motion, and the appellate court affirmed
that judgment.
Here is the applicable law:
Accommodation:
Tepper sets forth a religious accommodation claim under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq. Title VII states in part:
It shall be an unlawful employment practice for an employer - -
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of employment, because
of such individual's . . . religion . . . or
(2) to limit, segregate, or classify his employees . . . in any way which would deprive or tend to
deprive any individual of employment opportunities or otherwise adversely affect his status as an
employee, because of such individual's [*9] . . . religion . . . .42 U.S.C. § 2000e-2(a). Religion is
defined to include "all aspects of religious observance and practice, as well as belief, unless an
employer demonstrates that he is unable to reasonably accommodate to an employee's . . . religious
observance or practice without undue hardship on the conduct of the employer's business." 42 U.S.C.
§ 2000e(j).
"The analysis of any religious accommodation case begins with the question of whether the employee
has established a prima facie case of religious discrimination." Smith v. Pyro Mining Co., 827 F.2d
1081, 1085 (6th Cir. 1987). To establish a prima facie case, Tepper must show that "(1) he holds a
sincere religious belief that conflicts with an employment requirement; (2) he has informed the
employer about the conflicts; and (3) he was discharged or disciplined for failing to comply with the
conflicting employment requirement." Id. (citation omitted); but see Lawson v. Washington, 319 F.3d
498, 499-500 (9th Cir. 2003) (Berzon, J., dissenting from denial of rehearing en banc) (arguing that
the failure to accommodate is itself a Title VII violation.).
Using the Pyro Mining test, the appellate court found that elements one and two were met by Tepper
because (1) he held a sincere religious belief that conflicted with the station's rotating schedule, and
(2) he informed management of the conflict. Tepper failed on the third element because the appellate
court found he did not have a prima facie case of discharge or discipline [partially edited]:
Tepper asserts that he has been forced to take days off from work without pay in order to avoid
Saturday work, and that these days off reduce his annual pay and eventual pension. However, more
than loss of pay is required to demonstrate * discipline or discharge. The Supreme Court has stated
that "the direct effect of unpaid leave is merely a loss of income for the period the employee is not at
work; such an exclusion has no direct effect upon either employment opportunities or job status."
Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 70-71, 107 S. Ct. 367, 93 L. Ed. 2d 305 (1986)
(quoting Nashville Gas Co. v. Satty, 434 U.S. 136, 145, 98 S. Ct. 347, 54 L. Ed. 2d 356 (1977)).
Tepper is simply not being paid for the time he does not work; he has not been disciplined or
discharged.
Tepper argues that Goldmeier v. Allstate Ins. Co., 337 F.3d 629 (6th Cir. 2003) provides support for
his religious accommodation claim. In Goldmeier, the plaintiffs chose to terminate their employment
prior to being disciplined by their employer and prior to the start of the policy change that would
require them to work on Saturdays. Id. at 632. This Court held that they were not constructively
discharged, and restated the requirements of making such a showing:
"To constitute a constructive discharge, the employer must deliberately create intolerable working
conditions, as perceived by a reasonable person, with the intention of forcing the employee to quit
and the employee must actually quit." Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073,
1080 (6th Cir. 1999); * * * see also Logan v. Denny's Inc., 259 F.3d 558, 568-69 (6th Cir. 2001). Id. at
635. Putting aside the fact that Tepper did not quit, there is no evidence that Chagrin Falls Post Office
deliberately created intolerable working conditions, or that there was any intention that the Saturday
work requirement was designed to force Tepper to quit. Goldmeier went further to reiterate this
Court's requirement that a plaintiff must demonstrate discipline or discharge to succeed in a religious
accommodation claim. Id. at 637. Tepper has not been disciplined or discharged, and thus Goldmeier
provides no aid to Tepper.
Discrimination:
[Partially edited]
Tepper also appeals the dismissal of his religious discrimination claim under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. To assert a successful claim of religious discrimination
under Title VII, a plaintiff must either present direct evidence of discrimination or, in the absence of
direct evidence, present a prima facie * * * case of indirect discrimination by showing (1) that he was
a member of a protected class, (2) that he experienced an adverse employment action, (3) that he
was qualified for the position, and (4) that he was replaced by a person outside of the protected class
or that he was treated differently than similarly situated employees. See Johnson v. Univ. of
Cincinnati, 215 F.3d 561, 572 (2000); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802,
93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
The second prong looks at whether the employee experienced a "materially adverse" employment
action. Ford v. GMC, 305 F.3d 545, 553 (6th Cir. 2002); Allen v. Michigan Dep't of Corr., 165 F.3d 405,
410 (6th Cir. 1999). A materially adverse employment action is
a significant change in employment status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant change in benefits."
Burlington Indus. v. Ellerth, 524 U.S. 742, 761, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998). Such a
change "must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A
materially adverse change might be indicated by a termination of employment, a demotion evidenced
* * * by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices that might be unique to a particular situation.
Ford, 305 F.3d at 553 (quoting Hollins v. Atlantic Co., 188 F.3d 652, 662 (6th Cir. 1999)).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1
The Supreme Court has recently expanded the definition of "adverse employment action" for the
purposes of a Title VII retaliation claim. Burlington N. and Santa Fe Ry. Co. v. White, 126 S. Ct. 2405,
2415, 165 L. Ed. 2d 345 (2006). In doing so, the Supreme Court distinguished the purposes of the
anti-retaliation provision from the anti-discrimination provision in Title VII. Id. at 2411-15. Burlington
Northern did not expand or alter this Court's formulation of an adverse employment action for
purposes of the discrimination claim before us.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
If the plaintiff is able to present a prima facie case, the burden then shifts to the defendant to
articulate a legitimate, nondiscriminatory reason for the adverse employment action. McDonnell
Douglas, 411 U.S. at 802. If the defendant meets this burden, then the burden shifts back to the
plaintiff who must show that the defendant's proffered reason is a pretext for discrimination. Id. at 804.
Statements by coworkers alleged by Tepper to have been discriminatory were found by the appellate
court to be vague, not made by decision-makers, and fell short of demonstrating discriminatory
animus.
As to the requirement to prove a prima facie case [i.e., basically legally sufficient], Tepper failed to
prove that:
- he suffered a materially adverse employment action because the pay he missed was for time he did
not work, and the reduced pay did not affect his employment opportunities or job status, and rotation
was a part of the job requirement [as opposed to a condition imposed on him alone],
- comments by coworkers are not protected by Title VII, stated in Faragher v. City of Boca Raton, if
the are 'sporadic use of abusive language, gender-related jokes, and occasional teasing", and
- he did not show he was replaced by a person outside of his class or treated differently from other
similarly situated employees.
Employment Practices Liability Insurance: EPLI, claim notification time limits
Filing a claim within the time limits of an insurance policy is critical to being covered for that claim. Fail
to promptly notify your insurer will leave you without any coverage. American Ctr. for Int'l Labor
Solidarity v. Federal Ins. Co., No. 04-01523 (CKK) (D.D.C. Oct. 15, 2007); Internet: courts.gov/cgi-
bin/show_public_doc?2004cv1523-27
Negligent hiring or retention; respondeat superior
This decision is final and stand "as-is" because the NM Supreme Court quashed [denied] the writ of
certiorari [refused to review it because essentially they would not change the ruling and decision of
the NM Court of Appeals.
Two questions were,answered in this case:
1. Was the employer liable for failing to check on the background of one of its employees either in
hiring or retaining him?
2. Was the employer liable for the motor vehicle accident caused by it employee under the legal
theory of imputed liability, often also referred to as "respondeat superior"? "Imputed liability" means
that the negligence of an employee is imputed (i.e., also assessed against) the employer for the fault
of its employee?
Because of the extensive facts in this case and the extensive legal analysis, reading it in detail is
recommended.
Lessard v. Coronado Paint and Decorating Center, 2007-NMCA-122; Certiorari Granted, No. 30,537,
September 17, 2007; Internet: /opinions/VIEW/07ca-122.html
Barry Fennell worked with Coronado Paint and Decorating Center to perform tile repair services,
which involved driving to home building development sites in various locations. On his way home
from work on November 20, 2002, while driving a motor vehicle owned by another person, he was
involved in a collision with Susan Lessard about a mile from his last site visit. Coronado did not
provide Fennell with a vehicle. Coronado agreed and stipulated that Fennell was its employee.
Though Coronado check Fennell's references, it did not conduct a criminal background check, which
might have revealed that Fennell's driver's license had been suspended for failure to pay two
judgments of motor vehicle accidents, plus numerous other moving violations.
Negligent hiring or retention:
Coronado lost on this issue and a jury trial will be conducted on that question to determine if
Coronado should be liable for negligently hiring or retaining Fennell. In other words, was Coronado
negligent in hiring or retaining Fennell when Coronado either knew or should have known, through
the exercise of reasonable care, that Fennell was either incompetent or unfit? Evidence of fitness
requires consideration of the risk he might pose to those with whom he might associate. The NM
court of Appeals found that Coronado could reasonably anticipate that Fennell might have a motor
vehicle accident while driving from jobsite to jobsite. Thus, according to the NM Court of Appeals, two
issues need to be considered by the jury when this case proceeds to trial:
1. Public policy statutorily expressed in NMSA 1978, § 66-5-42 states a duty to the public of an
employer whose employees are driving for the company, so did the scope of that duty include
investigation by Coronado into Fennell's driving record, capabilities or licensing?
2. If so, was that failure a proximate cause of the accident, i.e., could the accident have been avoided
if Coronado had checked and not employed Fennell?
Respondeat superior:
Coronado won on this issue. The legal elements for this issue stated by the NM Court of Appeals
were:
1. Was Fennell acting within the course and scope of his employment at the time of the accident?
2. Did Coronado consent to the use of the vehicle driven by Fennell?
3. Did Coronado have the right to control Fennell's operation of the vehicle, or was the use of it so
important to Coronado that control could be inferred?
4. Was Fennell acting in furtherance of Coronado's business at the time of the accident?
[Note: Each element must be proven by Lessard in order to win against Coronado.]
The NM Court of Appeals reviewed and discussed the facts and law and ruled that Lessard failed to
present evidence that Fennell's conduct at the time of the accident was in furtherance of Coronado's
business and that no jury could reasonably infer that Fennell was acting within the scope of his
employment at the time of the accident.
Title VII: gender discrimination, policy violations, proper documentation, no disparate treatment, no
pretext
Valid policies prohibiting taking gifts from vendors, adequate training about those policies, proper
investigation, proper documentation, and consistent treatment of both the male and the female
offenders resulted in a favorable summary judgment in favor of the employer, thus saving the
expense of a trial.
This case is controlling law in this jurisdiction.
Swackhammer v. Sprint/United Management Co., No. 05-3222, 493 F.3d 1160 (10th Cir., 7/9/07); ;
P42,908: Internet: http://ca10.washburnlaw.edu/cases/2007/07/05-3222.htm
Following up on tips, Dena Swackhammer and Paul Garcia were investigated for violation written
policies prohibiting "taking advantage of relationship with vendors". Both knew about the policies
because they had been properly trained. In addition to travel records, photographs, emails, etc., an
independent investigation disclosed their violation of company policy.
The courts found that the employer had a valid reason for termination, and that it was not a pretext.
Further, the adverse employment action was consistent against both the woman and the man.
Incidentally, there was evidence she presented of other possible violations by others, including her
boss who investigated, but it was inconclusive.
Litigation: discovery of investigation documents; defamation, retaliation; incomplete attorney-client

privilege
In the litigation process parties can request documents be produce by their opponents, and this is
almost invariably done. Because documentation is so critical to success in employment law cases, it
must be done. And because such documentation usually must be produced to the requesting
opponent, it is critical that employers anticipated this and make certain that the documentation is fair,
objective, professional, comprehensive, indicative of attempts to assist a failing employee (if
possible), and of a quality that a hearing officer, judge or jury would find it favorable to the employer
and valid evidence of deficient performance by the employee. The specific trial court rule in both state
and federal court is civil procedure Rule 34, Production of Documents . . . . As with the Swackhammer
case above, it is important that investigations be professionally done because it is highly likely that
they will become public.
This case is controlling law in our jurisdiction.
Gingrich v. Sandia Corporation, 2007-NMCA-101; Internet: /opinions/VIEW/07ca-101.html
Two of Sandia National Laboratories' internal investigators were of the opinion that their work was
being impeded and that their managers were retaliating against them. An independent investigator,
Professor Norman Bay of UNM Law School was retained because the Sandia investigators were
disqualified by their involvement from investigating the matter.
This case is primarily about disclosure of investigatory documents pursuant to a request made by the
employees to their employer pursuant to Rule 34.
Quoting from the NM Court of Appeals opinion:
The letter memorializing Bay's engagement, sent by Lawrence Greher, Senior Attorney for Sandia,
instructed Bay to conduct an inquiry into the investigators' allegations that they were:
(1) being prevented from fully and faithfully carrying out their assigned duties as security investigators
and (2) being retaliated against because of their past or ongoing efforts to ferret out possible fraud,
waste [or] abuse at Sandia.
{4} Sandia further instructed Bay to conduct a "complete, thorough, and comprehensive investigation
into the allegations," to treat his investigation as "attorney-client privileged to the fullest extent
possible," and to submit a "comprehensive report on [his] findings to C. Paul Robinson, Sandia's
President and Laboratory Director." In addition to submitting a written report containing the results of
his investigation, Bay was directed to "advise [Sandia's in-house counsel] from time to time
concerning, in general terms, the progress being made in completing [his] investigation."
Gingrich's attorney requested Sandia to produce certain items in order to prepare for trial:
{6} The district court found that waiver of both the attorney-client privilege and work product immunity
had occurred as a result of Sandia's disclosure of the Report prior to and during this litigation, and by
Sandia's direct use of the Report in defending against Plaintiff's claim that she was demoted, and
constructively discharged, without cause. In determining the scope of the waiver resulting from
Sandia's disclosure and use of the Report, the district court ordered that the following additional
materials be disclosed as well:
(1) communications between Bay, Sandia lawyers, and Sandia representatives regarding Plaintiff and
the Report; (2) work product materials prepared by Sandia's in-house counsel and communicated to
non-legal representatives of Sandia; and (3) all materials prepared or compiled by Bay relating to the
Report.
Sandia refused on the grounds that those items were protected by attorney-client privilege, but that
argument was rejected by the trial judge because those items formed the basis for Sandia's decision
to take an adverse employment action. On appeal, the NM Court of Appeals upheld the ruling of the
trial judge except for Bay's personal notes that he had not given to Sandia.
ADEA: validity of information at time of decision, pretext
Courts focus on what a decisionmaker believed when he took an adverse employment action, and
make no difference if it later turns out to be wrong. Proper procedures include, but are not limited to:
- Designating one decisionmaker, because group decisions open up inquiry into the motives of each
person in the group.
- That person should use professional documenting methods discussed in the cases above. This
includes, and is not limited to: policies claimed to have been violated, interview/investigation notes,
evidence of violations, past disciplinary actions (preferably of similar conduct), etc. Keeping such a
file as events unfold is easier than going back and trying to reconstruct one because electronic
information may be lost if backup are deleted, etc.
- Best practices for good management and thorough documentation of the basis for an adverse
employment action are an employer's best justification (and defense in litigation), and giving an
employee a written summary of that for which he or she should sign (or have another member of
management witness as having been refused) make the matter clear.
Enderwood v. Sinclair Broadcast Group, Inc., No. 06-6232, 233 Fed. Appx. 793 (10th Cir., 4/23/07);
2007 U.S. App. LEXIS 9393; 100 Fair Empl. Prac. Cas. (BNA) 745; 12 Wage & Hour Cas. 2d (BNA)
897
Richard C. Enderwood was suspected of violating written policies prohibiting disclosure of confidential
information and that was the basis for immediate termination of his employment. Emails indicated he
was sending such information about the station to its network. The employer won because the courts
found the information the employer had at the time was a valid, nondiscriminatory reason for
termination and that it was not a pretext for firing him because of his age.
ADEA: comments by management
Shooting oneself in the foot hurts.
This case is not controlling law in our jurisdiction, but it illustrates the kind of behavior that allows an
employee to easily win a discrimination claim or lawsuit.
Blair v. Henry Filters Inc., 6thCir, (10/1507)
These are the damaging statements made by the decisionmaker, each one of which could have been
sufficient alone as the basis for ruling in favor of the employee:
- his direct supervisor taunted him as "the old man on the sales force",
- removed him from a profitable account because he was "too old", and
- told another employee he "needs to set up a younger sales force".
FMLA: Byrne exception, bizarre behavior, duty to inquire, serious medical condition, constructive
notice
This is not controlling law in our jurisdiction, but it is a good one to know about. This is the "Byrne
exception", and "constructive notice" means that though the employee did not give actual notice that
she might have a serious medical condition, her behavior was peculiar enough to require her
employer to see if she did have a serious medical condition.
When in doubt, get expert legal and medical advice.
Stevenson v Hyre Electric Co., No. 06-3501 (7th Cir., 10/16/07); 2007 U.S. App. LEXIS 24197
Basically, a stray dog wandered into the workspace of a formerly "model" employee, triggering a
bizarre reaction that included, among other things:
- calling the police and
- yelling and swearing at her superiors so severely that they locked her out of the building.
Concerning the "Byrne exception" [partially edited]:

Direct notice from the employee to the employer is not, however, always necessary. * * * Stevenson's
case may go forward if Hyre had constructive notice of her need for FMLA leave. In Byrne v. Avon
Products, 328 F.3d 379 (7th Cir. 2003), this court held that either an employee's inability to
communicate his illness to his employer or clear abnormalities in the employee's behavior may
constitute constructive notice of a serious health condition. Id. at 381-82. "It is enough under the
FMLA if the employer knows of the employee's need for leave; the employee need not mention the
statute or demand its benefits." Id. at 382.
FMLA: discrimination, "severe work restrictions", failure to obtain work release, "unbroken chain of
events"; prescription drugs, safety concerns; leave, interference, retaliation; termination, wrongful
discharge; jury issues
Pervasive behavior may amount to discrimination. Employers need to consult with employees and
their physicians in complex cases rather than make essentially less than informed decisions.
Though this case is not controlling law in our jurisdiction, it illustrates important factors to consider
when dealing with a complicated medical situation.
Wysong v. The Dow Chemical Company, No. 05-4197 (6th Cir., 10/1/07); 2007 U.S. App. LEXIS
22975; 2007 FED App. 0402P (6th Cir.); Internet: courts.gov/opinions.pdf/07a0402p-06.pdf
Because of the extensive complex and specific facts of this case and the extensive discussion of the
law, it should be read carefully. A brief would not be able to accurately inform you of the full nature
and extent of this problem.
Title VII: hostile work environment; summary judgment
This employee's extensive social interaction with her boss over a long period of time convinced the
appellate court that a reasonable jury would not conclude that she subjectively considered her work
environment to be hostile.
This case is not controlling law in our jurisdiction, but it illustrates how a seemingly hostile work
environment may not actually be one that would support a discrimination verdict - peculiar and
perhaps reprehensible behavior, but not sufficient for a favorable outcome for the employee.
Bannon v. The University of Chicago, No. 06-2955 (7th Cir., 10/1/07); 2007 U.S. App. LEXIS 22986;
Internet: /CM/Custom/701B8B0D.pdf
Judge Williams of the appellate court summarized the case:
Gloria Bannon and Dr. Jacqueline Burton both sued The University of Chicago, operator of the
Argonne National Laboratory where both plaintiffs worked. Bannon, a woman of Mexican ancestry,
claims her supervisor leveled racial epithets at her and repeatedly blocked her attempts to gain
promotion from a secretarial position to a supervisory one because of her national origin. Further,
Bannon says that after winning promotion in November 2002, she was "frozen out" of opportunities in
retaliation for reporting funding irregularities. Bannon began a medical leave in February 2003, and
never returned to work. Instead, she initiated this action, claiming [*2] she was: (1) denied promotion
because of her national origin, (2) subjected to a hostile work environment, and (3) constructively
discharged in violation of Title VII of the Civil Rights Act. Burton, a white female, claims the university
violated Title VII by denying her a promotion to senior scientist because of her gender and that she
was fired in retaliation for reporting improper billing practices, and not for the reason provided by the
school--a failure to report a conflict of interest.
The district court dismissed Bannon's retaliatory constructive discharge claim on the pleadings and
granted summary judgment to the defendant on all other claims. We affirm as to Bannon because: (1)
she has no timely failure-to-promote claim; (2) she did not establish that she found her workplace
subjectively hostile; (3) her IIED claim is partially preempted and she was not the victim of extreme
and outrageous conduct; and (4) Illinois does not recognize a cause of action for retaliatory
constructive discharge. With respect to Burton, we affirm because she never applied for the
promotion and cannot show that the reason given for her termination was pretextual.
[Note: "IIED" is intentional infliction of emotional distress.]
Over a five year period of time the secretary had not reported her boss's racial slurs:
- wetback,
- brown cow,
-terrorist in a miniskirt
- Mexican brain can't understand figures, etc.
On the other hand, there were other factors, such as:
- admitted socializing with her boss outside of work,
- a week of vacation together with their spouses, and
- initiation of lunch by a card describing him as a "great boss".
[Note: Let's review some major case law to put this decison in perspective:
- From Oncale v. Sundowner Offshore Services, Incorporated:
- A hostile work environment exists if the workplace is "permeated with discriminatory intimidation,
ridicule, and insult * * * that is sufficiently severe or pervasive to alter the conditions of the victim's
employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17,
21, 126 L. Ed. 2d 295, 114 S. Ct. 367 (1993) (internal citation and quotation omitted). The conduct in
question must be judged by both a subjective and an objective standard. See id. To determine
whether an environment is hostile, courts must look at all the circumstances, including the "frequency
of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee's work performance."
Faragher v. Boca Raton, 524 U.S. 775, 787-88, 141 L. Ed. 2d 662, 118 S. Ct. 2275 (1998) (internal
quotation and citation omitted).
-Justice Scalia cautioned that Title VII is not a general civility code. He stated the Court has "never
held that workplace harassment, even harassment between men and women, is automatically
discrimination because of sex merely because the words used have sexual content or connotations".
- In the ABA Journal, May 1998, Signs of Disagreemant: Four important conclusions were stated:
(1) Title VII's prohibits discrimination because of sex protects both male and female employees from
sexual harassment regardless of the harasser's gender,
(2) illegal harassment can be motivated not only by sexual desire but also by hostility,
(3) the ultimate test is whether the harassment is so severe as to constitute actual "discrimination
because of sex" - the behavior must be "so objectively offensive as to alter the conditions of the
victim's employment" and put him or her at a disadvantage compared to others because of sex, and
(4) Common sense and social context count.]
Title IX: educational institution, gender discrimination, intentional disregard of sexual misconduct
Summary judgment in favor of the University of Colorado at Boulder was reversed, and trial will
proceed on the issue of whether the school's failure to act to prevent alleged sexual assaults may be
the result of deliberate indifference. A large number of amicus curiae (friend-of-the-court advisory)
briefs were filed in this case, which emphasizes its importance.
This is controlling law in our jurisdiction, and though it involves an educational institution and Title IX,
its reasoning could be applied to Title VII cases involving similar behavior by companies or
governmental agencies and those individuals they may be recruiting or entertaining.
Simpson v. University of Colorado Boulder, No. 06-1184, No. 07-1182 (10th Cir., 9/6/07); 2007 U.S.
App. LEXIS 21478
Judge Hartz' introduction of the case sums it up quite vividly [partially edited]:
Lisa Simpson and Anne Gilmore (Plaintiffs) claim that they were sexually assaulted on the night of * *
* December 7, 2001, by football players and recruits of the University of Colorado at Boulder (CU).
They brought this action against CU under Title IX of the Education Amendments of 1972. See 20
U.S.C. §§ 1681-1688. The district court granted summary judgment for CU, see Simpson v. Univ. of
Colo., 372 F. Supp. 2d 1229, 1246 (D. Colo. 2005), and later denied motions to alter or amend the
judgment and to reopen discovery. Plaintiffs appealed these rulings in our case number 06-1184.
Later the district court denied a second motion for relief from judgment. Plaintiffs appealed that ruling
in our case number 07-1182. We grant Plaintiffs' motion to consolidate the two appeals. Two amicus
curiae briefs have been submitted by organizations in support of Plaintiffs' position. * * * We have
jurisdiction under 28 U.S.C. § 1291. In our view, the evidence presented to the district court on CU's
motion for summary judgment is sufficient to support findings (1) that CU had an official policy of
showing high-school football recruits a "good time" on their visits to the CU campus, (2) that the
alleged sexual assaults were caused by CU's failure to provide adequate supervision and guidance to
player-hosts * * * chosen to show the football recruits a "good time," and (3) that the likelihood of such
misconduct was so obvious that CU's failure was the result of deliberate indifference. We therefore
hold that CU was not entitled to summary judgment. Because we reverse and remand for further
proceedings, we need not address the merits of the postjudgment motions.
ADA, ADEA, FMLA: termination, timing, deficient performance, adequate documentation, different
proof for different acts
Granting FMLA leave does not automatically mean the employer regarded the employee as disabled
because the proof differs for each act. This employee lost on all of her claims, and adequate
documentation or deficient performance significantly aided the employer's defense against her
numerous claims.
Berry v. T-Mobile, No. 05-1533, 490 F.3d 1211 (10th Cir., 6/27/07); 2007 U.S. App. LEXIS 15258; 100
Fair Empl. Prac. Cas. (BNA) 1623; 19 Am. Disabilities Cas. (BNA) 877; Internet:
http://ca10.washburnlaw.edu/cases/2007/06/05-1533.htm
Barbara Berry's deficient performance as a care team manager was well documented, that was the
basis for her termination, and the trial court and the appellate court both agreed there was no illegal
discrimination against her. One creative twist in the case was her claim that because her employer
had granted her FMLA leave it amounted to proof that her employer regarded her as disabled. Proof
under the FMLA requires a serious medical condition, whereas the ADA requires proof of substantial
limitation of one or more major life activities, and seldom to the two overlap.
The Tenth Circuit court of Appeals decision stated:
After T-Mobile USA, Inc. (T-Mobile) terminated Barbara Berry's employment, she filed an action
claiming the termination violated the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-
12213, Title VII of the Civil Rights Act (sex discrimination), 42 U.S.C. § 2000e, and the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. § 621. She also alleged breach of implied
contract and promissory estoppel. The district court granted summary judgment in favor of T-Mobile
concluding Berry was an "at-will" employee. The court also determined: (1) Berry was not "disabled"
under the ADA because she had not shown her disability severely * * * impacted a major life activity,
and (2) she failed to establish pretext in relation to her gender and age discrimination claims.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM.
Title VII: gender discrimination, disparate treatment, disparate impact; McDonnell Douglas, pretext;
summary judgment
The employee lost on her disparate treatment claim, but was allowed to go to trial on her disparate
impact claim. The two theories differ in that:
- disparate treatment involves intentional denial of employment, promotion, raise, etc., to a person
because of his or her protected status, whereas,
- disparate impact involves a systematic practice and/or policy that disproportionately affects a person
or persons in a protected class, no matter what the employer's intentions might have been.
Once again, the court refused to micromanage or to second-guess business judgment because the
statutory duty is to determine whether hiring or other employment actions were based on illegal
discriminatory reasons - not to decide who might have had the better qualifications.
Santana, v. City and County of Denver, No. 05-1111; 488 F.3d 860 (10th cir., 5/24/07); 2007 U.S. App.
LEXIS 12176; 100 Fair Empl. Prac. Cas. (BNA) 1160; Internet:
http://ca10.washburnlaw.edu/cases/2007/05/05-1111.htm
Kathy Santana, a deputy with the sheriff's department, applied for promotion to Captain. Though her
score was 93.3 in the skills examination, she admitted she did poorly in the interview. That caused the
evaluators to question if her inability to stand the stress of that process also meant she wouldn't be
able to handle the stress of a captain's duties.
Her gender placed her in a protected class, so she satisfied the first element of the McDonnell
Douglas test [see numerous previous statements of that test in this database]; the employer offered a
legitimate non-discriminatory reason for not promoting her, and she then had the burden of proving
that was a pretext. She failed because every applicant was interviewed and ranked the same way,
and she did not discredit the employer's contention that she did not answer the three interview
questions completely or present herself strongly. Accordingly, her disparate impact claim failed.
However, that left her disparate impact claim. At trial she will have to prove that the department
somehow has a systematic policy and or procedure that discriminates illegally against women [and
intent need not be proved].
Wages: class action certified
A class action allows similarly situated plaintiffs to have their claims litigated as a group. Attorneys will
be primarily interested in this civil procedure decision. Of interest for employers and related human
resources practitioners is that the plaintiffs intend to use some of the employer's internal monitoring
programs for productivity, tardiness, attendance, scheduling, door alarms, etc., to prove their
contentions that the employer's actual practices violate/violated its written policies.
Armijo v. Wal-Mart Stores, Inc., 2007-NMCA-120, cert. denied, No., 30,586, September 7, 2007:
Internet: /opinions/VIEW/07ca-120.html
Essentially, the group claims relate to failure to compensate for:
- missed rest breaks,
- missed meal breaks,
- night employees not being timely let out of the store, and/or
- encouraged to work off of the clock.
The court noted this case is one of many similar class actions being filed nationwide.
A class actions are allowed both by state and federal district court civil procedure rule 23, as well as
our state NM Minimum Wage Act and the federal Fair Labor Standards Act, which allow for collective
action by employees.
Rule 23 lists four prerequisites for certification of a class action in its first subsection, (A) or (a):
(1) the class is so numerous that [individual] joinder of all members is impractical;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the
class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
Additional rule requirements also need to be met, and it was found that they were.
FMLA: leave calculation
This case from outside our jurisdiction is not controlling law here, but it helps by construing two
regulations: Mellen v. Trustees of Boston University, (1st Cir., 9/21/07); Internet: courts.gov/cgi-
bin/getopn.pl?OPINION=07-1151.01A
Title VII: national origin; poor performance; McDonnell Douglas, pretext
This case from outside our jurisdiction was lost by the Iraqi employee because he could not prove his
firing was based on national origin. Though the war was discussed in the workplace, no one made
disparaging remarks about him. Abdulnour v Campbell Soup Supply Co., LLC, (6th Cir., 9/19/07)
Title VII: judgment not dischargeable in bankruptcy
Not controlling law in our jurisdiction, but might be helpful to attorneys if the issue arise here. In re
Porter, (8th Cir., 9/21/07); Internet: courts.gov/opndir/07/09/076008P.pdf
ADA: procedural legal issues
Attorneys, check these two recent 10th Circuit cases for legal procedural precedent:
- The employee successfully challenged the company's "100% healed" policy requirement even
though he had failed to check off "disability" or "reprisal" when completing his EEOC intake
questionnaire. Jones v. UPS, Nos. 06-3088, 06-3095 (10th Cir., 9/13/07); 2007 U.S. App. LEXIS
22036; Internet: courts.gov/opinions/06/06-3088.pdf
- The employee's administrative charge alleging ADA retaliation was timely filed. Proctor v. UPS, No.
06-3115 (10th Cir., 9/18/07) 2007 U.S. App. LEXIS 22306; Internet:
http://ca10.washburnlaw.edu/cases/2007/09/06-3115.pdf
Title VII: religious bias, pretext
Tenure was denied to an associate professor. Her evidence of remarks was found not to be sufficient
proof of discrimination.
Adelman-Reyes v. Saint Xavier University, No. 06-2284, (7th Cir., 9/14/07); 2007 U.S. App. LEXIS
22061
The appellate court stated the facts, analyzed and discussed them and the law, and then stated its
conclusion [both quotations partially edited]:
Sharon Adelman-Reyes filed suit in federal court alleging her former employer, Saint Xavier University
("University"), denied her tenure because of her Jewish faith in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e-2. Adelman-Reyes also alleged that the dean of the University's
School of Education tortiously interfered with her prospective employment at the University by writing
a negative tenure recommendation letter. The district court granted summary judgment for the
defendants. Adelman-Reyes appeals, and we affirm.
***
As we have noted in affirming summary judgment on Adelman-Reyes's discrimination claim, tenure

decisions "necessarily rely on subjective judgments about academic potential. Experienced faculty
members may well come to different conclusions when confronted with voluminous and nuanced
information about a colleague's overall capacity to make a long-term institutional contribution." * * *
Moreover, "winning the esteem of one's colleagues is just an essential part of securing tenure." * * *
Gulley's recommendation communicated her subjective * * * opinion about Adelman-Reyes's
suitability for tenure; it is worth noting that the University's established tenure process required her to
submit it. There is no evidence suggesting Gulley went out of her way to sabotage Adelman-Reyes's
career at the University. To the contrary, Gulley previously promoted Adelman-Reyes to a tenure-track
teaching position and then recommended her for an associate professor position. Adelman-Reyes
has produced no evidence from which a reasonable juror could infer that Gulley was acting recklessly
or with a direct intent to injure her. Accordingly, summary judgment dismissing Adelman-Reyes's
tortious interference claim was properly granted.
Title VII: pre-employment waiver, background check
An applicant for a police officer's position with the City of Mesa, Arizona, waived her right to assert
employment discrimination claims that were predicated on actions taken during the city's investigation
of her background, the Ninth Circuit ruled. That appeals court upheld the pre-employment waiver of
any discrimination claims related to the background investigation.
Nilsson v. City of Mesa, No. 05-15627 (9th Cir., 9/13/07); 2007 U.S. App. LEXIS 21912; Internet:
courts.gov/ca9/newopinions.nsf/5D57D4DAED10B76588257354007DEA39/$file/0515627.pdf?
openelement
Christine Nilsson applied to be a police officer, and one requirement of the process was that she had
to waive any right to file a discrimination claim relating to investigation of her background.
This statement of the facts by the appellate explains the situation [partially edited]:
Nilsson applied for a police officer position with the City of Mesa. In conjunction with her employment
application, Nilsson agreed to "waive all [her] legal rights and causes of action to the extent that the
Mesa, Arizona, Police Department investigation (for purposes of evaluating [her] suitability or
application for employment) . . . violate[d] or infringe[d] upon . . . [her] legal rights and causes of
action . . ." In addition, Nilsson:
[A]gree[d] to hold harmless and release from liability under any and all possible causes of legal action
the City of Mesa, Arizona Police Department, their officers, agents, and employees for any
statements, acts, or omissions in the course of the investigation into [her] background, employment
history, health, family, personal habits and reputation.
Officer * * * Dwayne Yunker (Yunker) was assigned to investigate Nilsson's background. After an
initial review, Yunker "gave . . . Nilsson the thumbs up," and her employment application was sent to
the Mesa Police Department's (Mesa PD) Hiring Board. Yunker continued discussions with Nilsson,
however, because he was unable to answer the Hiring Sergeant's questions regarding the conditions
under which Nilsson left the Tempe Police Department (Tempe PD), as well as the various legal
proceedings in which Nilsson had been involved while employed by the Tempe PD. Nilsson disclosed
that she had been involved in an EEOC dispute with the Tempe PD, and that she left the Tempe PD
as part of a settlement agreement. In a subsequent discussion, Nilsson explained that she had been
involved in civil proceedings in 1983, 1988, 1991, and 1992. Nilsson also revealed that in or around
1990 or 1991 she filed a worker's compensation claim, and that in 1993 she was involved in a labor
board proceeding.
The Hiring Board denied Nilsson's application, but did not inform her of its decision. Nilsson learned
that her application had been denied from Detective John Newberry (Newberry), a friend of hers at
the Mesa PD. Newberry * * * also informed Nilsson that "there could be a possibility [the hiring
officials] . . . could change their mind." The Mesa PD subsequently extended a conditional offer of
employment to Nilsson, subject to her successfully completing a physical aptitude test, a medical
examination, and a psychological evaluation. Nilsson passed the physical aptitude test, as well as the
medical examination, but failed the psychological evaluation. Dr. Robin Ford, a clinical psychologist,
recommended that Nilsson not be hired, citing among other reasons "[Nilsson's] stubborn, [sic]
edginess and impulsivity." Nilsson was ultimately not hired by the Mesa PD.
ADA: obesity, major life activity; no disability
The employer had a valid safe load limit policy that the employee could not comply with because he
was unable to lose enough weight.
Greenberg v BellSouth Telecomm, Inc., No. 06-15134 Non-Argument Calendar (11th Cir., 9/10/07);
2007 U.S. App. LEXIS 21670; 20 Fla. L. Weekly Fed. C 1064 : Internet:
courts.gov/opinions/ops/200615134.pdf
His ADA claim was denied because he failed to show his impairments substantially limited him in a
major life activity.
Rehabilitation Act: ADA analogy, PTSD, dangerous behavior, coworkers; leave, retaliation
Focusing on behavior rather than disability should be the way to avoid liability under the ADA and the
Rehabilitation Act, and in this case it was. However, note that his retaliation claim will go to trial.
This case is controlling law in this jurisdiction. Because ADA cases frequently rely on Rehabilitation
Act decisions, this is an important decision. Also, it is a strong indicator that the peculiar decision in
Gambini v. Total Renal Care, Inc., No. 05-35209 (9th Cir., 11/27/06); 2007 U.S. App. LEXIS 5444;154
Lab. Cas. (CCH) P35,261; 19 Am. Disabilities Cas. (BNA) 1; 12 Wage & Hour Cas. 2d (BNA) 692,
most likely will not be followed in our jurisdiction.
Jarvis v Potter, No. 06-4090 (10th Cir., 8/3007); 2007 U.S. App. LEXIS 20789; Internet:
/ca10/cases/2007/08/06-4090.htm
Lanny Bart Jarvis, a decorated Vietnam War veteran, suffered from post-traumatic stress disorder
(PTSD), but his employment was terminated because of concerns for the danger he posed to
coworkers. He was easily startled, jumpy, combatively defensive, and on one occasion
inappropriately touched a female employee. This opinion sets forth an extensive history of such
events.
Judge Hartz' appellate opinion concludes [partially edited]:
We AFFIRM the district court's grant of summary judgment on Mr. Jarvis's discrimination claim and
his retaliation * * * claims based on failure to transmit Mr. Palmer's statement to the investigator and
on his placement on administrative leave. But we REVERSE the judgment as to his claims that the
Postal Service retaliated against him by (1) denying him pay or access to his accrued leave while he
was on administrative leave, and (2) terminating him rather than allowing him to take disability
retirement; on those claims we REMAND for further proceedings.
Union: pre-hire agreement; contract renewal, binding contract; timing of notice; arbitration
A pre-hire agreement is allowed by Section 8(f) of the National Labor Relations Act, which means that
a union and an employer in the construction industry may enter into an agreement covering wages,
conditions of employment and methods of hiring prior to hiring any employees without committing an
unfair labor practice.
At issue was whether the employer's notice of refusal to renegotiate the pre-hire agreement was
timely and effective. It was not.
Sheet Metal Workers' Int'l Assn v McElroy's, Inc., No. 06-3189 (10th Cir., 8/29/07); 2007 U.S. App.
LEXIS 20627
After affirmation of the independent National Joint Adjustment Board (NJAB) arbitrator's ruling in favor
of the union, affirmation by the NJAB, affirmation by the federal district trial court, our 10th Circuit
court of appeals also affirmed because the employer's notice was late, coming after the union had
served notice of intent to renew the pre-hire agreement:
Here, the district court was correct to enforce the NJAB's order directing the parties to negotiate new
agreement. The Union served McElroy's with notice of reopening more than ninety days prior to
expiration of the agreement; negotiations became "deadlocked" when McElroy's refused to negotiate;
and the Union submitted the case to arbitration pursuant to Article X, Section 8 prior to expiration of
the agreement.
Stated simply, this opinion means that contract provisions will be enforced, in this case the agreement
to renegotiate the pre-hire agreement.
Union: coercion, construction project owners, union-only project labor agreements, permit extortion,
environmental projects, unfair labor practice (ULP)
Involved in this case is pressure on construction project owners when they start to apply for required
regulatory permits and approval for projects. Over the years building trades unions would oppose the
project in governmental hearings, especially the environmental and zoning aspects. As practical
matter, this slows the project and the tendency is then that owners of the projects bend under this
pressure and accept less than favorable union contract terms in order to progress to completion.
Glens Falls Building and Construction Trades Council (Indeck Energy Services, Inc.), 350 NLRB No.
42 (2007); Internet: http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35042.pdf
These kinds of cases depend on their particular facts as to whether the project owner is is engaged in
the construction industry as defined by Section 8(e) of the National Labor Relations Act.
Benefits: deductions allowed, group plan over and above wages
Deductions from employee paychecks are usually restricted by state employment law statutes.
However, a supplementary compensation rewarding employees, over and above their regular wages,
for their collective efforts producing a positive financial result for their employer has some attractive
aspects to consider. One observation about these kinds of plans is that they may draw allegations
that they discourage reporting such problems as work injuries, discrimination and/or harassment, etc.;
as always, whether that is true is another matter.
See NMSA § 50-4-1 through 31 for our jurisdiction's basic state statutes, among other laws; Internet:
/nmsu/lpext.dll?f=templates&fn=main-h.htm&2.0
This case is not controlling law in our jurisdiction, but employers interested in incentive plans that
involve deductions from paychecks may want to check the details and consult with legal counsel. It is
noted that a number for courts in eastern states have reached similar results.
Prachasaisoradej v. Ralphs, No. S128576 (Cal., 8/23/07); 2007 Cal. LEXIS 8909; Internet:
http://www.courtinfo.ca.gov/opinions/documents/S128576.PDF
This bonus plan was based on target profit and target bonus figures. If actual profits increased in
relation to the bonus target profits, the percent of the target bonus paid was increased. Calculations
were based on "normal concepts of profitability". Reductions from gross target profits were, among
other things:
- workers' compensation claims,
- cash shortages,
- merchandise shortages or shrinkage,
- the costs of non-employee tort claims not caused by the willful or dishonest acts or gross negligence
of the employees, and, among to the things,
- costs of goods sold, utilities and the renting of the premises (which are typical deductions from gross
profits).
Though the opinion is not as clear as attorneys might prefer, apparently the major factor persuading
the majority of the justices was that the bonus was supplemental and not earned by any individual
employee's efforts, and thus not actually a wage.
Attorney-client privilege: discovery, investigation, retaliation, hostile work environment
Attorneys' attention is invited to this civil procedure discovery case: Gingrich v. Sandia Corporation,
2007-NMCA-101; Certiorari denied, No. 30,527, July 30, 2007
Detailed legal case not briefed because of its intricate and extensive complexity relating to civil
litigation procedural rules primarily of interest to litigators.
Title VII: English language requirement; direct evidence of discrimination
Requiring that English be spoken in the workplace can expose employers to claims of discrimination
based on national origin unless there is a valid business purpose that English be spoken in matters of
safety, health, quality control, process-related matters, etc. This is a complicated case involving
factual issues, timing, and other specific factors. Basically, trial of this direct discrimination claim will
revolve around those factors.
This case is controlling law in our jurisdiction. If the issue of an English-only language policy is critical
to your company or clients, then you should read the entire decision for all of the intricate details,
twists and turns that cannot accurately be represented in a brief.
Nguyen v. Gambro BCT, Inc., No. 05-1422 (10th Cir., 6/20/07); 2007 U.S. App. LEXIS 14956;
Internet: /CA10/cases/2007/06/05-1422.htm
Gambro manufactures medical devices for blood collection and processing, and it requires
assemblers to have (1) either a high school diploma or a recognized equivalent and (2) also to be
fluent in reading and writing English. Despite those requirements, it hired Dung Nguyen, a
Vietnamese woman. After she was hired the company developed and implemented guidelines for use
of English in the workplace for all matters related to process in order to ensure high quality standards
and team unity. Nguyen worked for Gambro for almost three years, and for her first two years
received positive performance evaluations. Trouble arose in her third year for inappropriately playing
around with male coworkers, and she was sent home early that day. A second incident a few months
later involved an allegation that she had spoken disrespectfully about a coworker in Vietnamese to
another coworker. From that point on, the matter of conversations in Vietnamese became the subject
of this claim, as well as her employment status, adverse employment actions, and the timing of all of
that. Ultimately, she was fired.
She claimed discrimination based on race, color, national origin, sex and retaliation. Summary
judgment was granted in favor of the employer in all issues. The appellate court affirmed summary
judgment on her retaliation claim, but allowed her to proceed to trial on her claim of direct
discrimination.
As to the proof of direct discrimination, the elements will be:
1) was Dung Nguyen in a protected class,
2) was she qualified for her job,
3) was she fired, and
4) was the position still open [i.e., not eliminated] after her employment was terminated?
She will not need to show that she was replaced or treated any differently than any other person not
in a protected class who was similarly situated. Clearly she is in at least one of the protected classes,
performance evaluation seemed to indicate she was qualified for her job, she was fired, and the
position was open after she was fired.
Gambro faces the issue that its reason for firing her was a pretext, i.e., had she breached
confidentiality restrictions on employment actions by talking about them to a coworker? This is the
point at which the testimony about conversations, timing, and other matters will be critical to the
outcome of the case.
Title VII: sexual harassment, retaliation, adverse employment action
The NM Scorpions hockey team threatened to publicize rumors of a former female employee's sexual
activities, paid no regard to the truth of those rumors, and opposed her application for unemployment
benefits. The trial court ruled in favor of the employer on all counts. The appellate court agreed with
the trial court on all but the retaliation claim, finding that there were adverse employment actions upon
which the employee might be able to recover.
This case is controlling law in our jurisdiction, and it is important to note because it is this jurisdiction's
first consideration and application of Burlington Northern & Santa Fe Railway Company v. White
retaliation case.
Williams v. W.D. Sports, N.M., Inc., No. 05-2127 (10th Cir., 8/7/07); 2007 U.S. App. LEXIS 18721;
Internet: /ca10/cases/2007/08/05-2127.htm
The appellate court summarized the case [partially edited]:
Several female former employees of the New Mexico Scorpions, a minor league hockey team, filed
suit against the team and various of its managers, alleging that they engaged in sexual harassment
and other conduct proscribed by Title VII and state law. After a 10-day trial, a jury found for
defendants on all counts. In this appeal, plaintiffs direct us to no fewer than thirty rulings they argue
were mistaken and require reversal. We find one such argument meritorious. After the district court's
decision, and during the pendency of this appeal, the Supreme Court issued Burlington Northern &
Santa Fe Railway Company v. White, ____ U.S. ____, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006),
setting forth * * * a new rubric for analyzing Title VII retaliation cases. In White, the Court held that an
employee subjected to employer conduct, whether inside or outside the workplace, that well might
dissuade an objectively reasonable worker from making or supporting a charge of discrimination
suffers a sufficiently adverse action to state a claim under Title VII. Because a reasonable jury could
find that the employer in this case took such an action against one of the plaintiffs before us, Rosann
Williams, we reverse and remand her retaliation claim for trial. On all remaining scores, we affirm the
judgment of the district court.
Title VII: religion, national origin, pervasive hostile work environment mental anguish
Religious harassment claims have risen in recent years, and in this case the employee is entitled to a
jury trial
E.E.O.C. v. WC&M Enterprises, Inc., No. 05-21090 (5th Cir., 8/10/07);
2007 U.S. App. LEXIS 19105; Internet: courts.gov/opinions/pub/05/05-21090-CV0.wpd.pdf
Harassment: These were the hostile actions [partially edited]:
Rafiq began having problems with harassment at Streater-Smith immediately following the
September 11, 2001 terrorist attacks. When Rafiq arrived at work for his afternoon shift on that day, a
number of his co-workers * * * and managers, including Matthew Kiene (a co-worker), Kevin Argabrite
(a finance manager), Jerry Swigart (Rafiq's direct supervisor), and Richard Burgoon (the general
manager of the dealership), were watching television coverage of the attacks. Upon seeing Rafiq,
Kiene called out, "Hey, there's Mohommed," and Argabrite said, "Where have you been?", in a
mocking way, at which point everyone began to laugh. Rafiq inferred from these comments "that [his]
supervisors and colleagues were implying that [he] had participated in some way in the terrorist
attacks against the United States."
After the United States took military action against Afghanistan later in 2001, Kiene and Argabrite
began calling Rafiq "Taliban" whenever they saw him (i.e., multiple times per day). In addition, Rafiq's
manager, Swigart, also called Rafiq "Taliban" on four or five occasions. Rafiq repeatedly asked Kiene
and Argabrite to stop calling him "Taliban," to no avail. He also complained a number of times to
Swigart and Burgoon without any real success.
Kiene and Argabrite also allegedly ridiculed and harassed Rafiq in other ways. For example, Kiene
asked Rafiq, "Why don't you just go back where you came from since * * * you believe what you
believe?" Kiene and Argabrite mocked Rafiq's religious dietary restrictions and his need to pray
during the workday. They also often referred to Rafiq as an "Arab," even though Rafiq told them on
numerous occasions that he was from India. In addition, Argabrite once played a "Taliban" joke over a
speaker on the sales floor. According to Rafiq, this harassment continued through the end of his
employment.
On October 16, 2002, Rafiq got into a dispute with his manager, Swigart, after Swigart told him that it
was mandatory for all employees to attend a United Way meeting. When Rafiq questioned what, if
any, connection there was between the United Way and his job, Swigart said, "This is America. That's
the way things work over here. This is not the Islamic country where you come from." After the
confrontation, Swigart issued Rafiq a written warning, which stated that Rafiq "was acting like a
Muslim extremist" and that he could not work with Rafiq because of his "militant stance."
On October 26, 2002, Argabrite "banged" on the partition separating Rafiq's office space from the
sales floor, and said to Rafiq, "Got you." According to Rafiq, Argabrite allegedly did this every * * *
time he walked by Rafiq's office in order to startle him. This time, however, Rafiq responded by
banging on the partition himself and saying, "Don't do that." Argabrite then allegedly got in Rafiq's
face and told Rafiq that he was a manager, so Rafiq could not tell him what to do. Rafiq later
complained to Burgoon about Argabrite's continual harassment. Two days later, Rafiq was fired from
Streater-Smith.
Mental anguish: The type of mental anguish involved in a federal hostile work environment claim is
different from what may be defined under state law.
In the instant case, Rafiq testified at his deposition that the alleged harassment caused problems with
his family life that led him to seek counseling from several mosques, that he had difficulty sleeping,
lost 30 pounds, and suffered gastrointestinal problems. Although Rafiq equivocated about whether his
gastrointestinal problems were attributable to the harassment, the record evidence is sufficient to
show that the harassment caused some discernible injury to his mental state even when those
symptoms are not considered. Accordingly, the district court erred in concluding that the EEOC could
not recover for any mental anguish that Rafiq suffered.
Title VII: racial discrimination, plagiarism, retaliation, reprisal
Plagiarism in his application, not racial discrimination, was the reason for the community college
employer (1) refusing to select the employee for president of the college and (2) for demoting him to a
position with paying a significantly lower salary.
Gilbert v Des Moines Area Community College, No. 06-3021 (8thCir, August 8, 2007); 2007 U.S. App.
LEXIS 18755; Internet: courts.gov/opndir/07/08/063021P.pdf
Discovered in the application of Fred Gilbert were statements found to have been copied almost word
for word from two separate textbooks, which Gilbert admitted, but stated that (1) he had hired a
consultant to assist him in completing his application, (2) the consultant prepared the essay answers
for Gilbert and apparently committed the act of plagiarism, and (3) he was unaware any plagiarism
had occurred.
The appellate court ruled that:
Based on the results of DMACC's investigation, the DMACC Board of Directors voted to terminate
Gilbert's contract as Urban Campus Provost on the ground "Dr. Gilbert's application for President of
DMACC contained substantial acts of plagiarism and acts of misrepresentation." The decision to
remove Gilbert from academic administrative employment was influenced largely by DMACC's
consideration of Gilbert's academic governance duties, which included administering academic
programs and determining sanctions for academic misconduct. In President Denson's words,
"plagiarism is a serious matter in academia," and DMACC "did not want Dr. Gilbert in a position where
[Gilbert was] judging students for plagiarism when he has been involved in plagiarism." DMACC
offered Gilbert a new position as a grants specialist, which carried a significant reduction in salary.
ADA: violent behavior, standards of performance, adverse employment action, no retaliation,

corrective action, no inconsistent treatment no comparable seriousness; no pretext; issue preclusion
A teacher who had twice injured her head and suffered from anger outbursts and irritability was fired
for unprofessional behavior that disqualified her for the job. Her argument that her verbal outburst
were symptomatic of her disability was rejected by the appellate court. Note that this appellate circuit
did not follow the reasoning of Gambini v. Total Renal Care, Inc., No. 05-35209 (9th Cir., 11/27/06);
2007 U.S. App. LEXIS 5444;154 Lab. Cas. (CCH) P35,261; 19 Am. Disabilities Cas. (BNA) 1; 12
Wage & Hour Cas. 2d (BNA) 692, which has been viewed by many as aberrant.
Though not expressly dealt with in the opinion, it seems there might have been a question of how well
past corrective actions were documented, if at all.
This case is not controlling law in our jurisdiction, but its point of termination based on behavior rather
than disability reinforces the importance of that difference in an adverse employment action. For
attorneys, the matter of issue preclusion (collateral estoppel) may be of interest.
Macy v. Hopkins County School Board of Education, No. 06-5722, 484 F.3d 357 (6th Cir., 4/12/07);
2007 U.S. App. LEXIS 8382; 154 Lab. Cas. (CCH) P60,392; 19 Am. Disabilities Cas. (BNA) 271;
Internet: courts.gov/opinions.pdf/07a0133p-06.pdf
Sharon Macy's closed head injuries in 1987 and 1996 resulted in numerous problems, including
anger outbursts and irritability with others. The school board developed an individualized
accommodation plan for her. Over time she had numerous problems with standards of performance
such as tardiness, outbursts, inappropriate conduct, etc. She had claimed inconsistent treatment, and
while that matter was pending an incident occurred in which she contended she had found a group of
boys playing unsupervised basketball, took them into the school and lectured them on the dangers of
that, and warned them that they could have been seriously injured or killed. The boys claimed that
she had threatened to kill them.
An investigation was ordered by the school superintendent, and 31 previous incidents of

inappropriate conduct were revealed. Macy was terminated. She lost in an administrative tribunal and
all judicial appeals.
Criminal charges resulted form the basketball incident, she was found guilty and also lost in the
appellate courts. EEOC dismissed her claims.
The Sixth Circuit Court of Appeals ultimately wound up with the case, and it too rejected her claims.
On its own initiative, that court raised the theory of issue preclusion, which means that a party is
precluded from litigating an issue that has previously been litigated and decided [i.e., enough is
enough]. Thus, Macy was barred from arguing that there was no factual basis for the allegation by the
board that she threatened and disparaged students.
Her claim of inconsistent treatment was also rejected by this appellate court because she could not
demonstrate instances of substantially similar conduct involving a non-disabled employee who was
not terminated.
Union: objection to fees unrelated to collective bargaining activities, union procedure, Free Speech,
First Amendment
Public sector employees who are part of a union bargaining unit, but who are not union members, are
required to pay their fair share of gains from union collective bargaining activities. Conflicts arise over
how to calculate that fair share and the nature and extent of objections, and typically the union is
obligated to provide accurate accounting.
This case is not controlling law in our jurisdiction, but it may have persuasive value here.
Seidemann v. Bowen, No. 05-6773 (2nd Cir., 8/1/07)
The appellate court ruled that it was a violation of professor Seidemann's First Amendment right of
free speech to require him to file annual objections for agency fees and to require him to specifically
state what percentages of the disputed fees he found unreasonable.
ADEA: statutory claims, arbitration agreement unenforceable
A clause in a collective bargaining contract waiving the rights of an employee to pursue statutory
discrimination claims in court was held to be unenforceable.
This is not controlling law in our jurisdiction, but it could persuasive authority here.
Pyett v. Penn Bldg Co., Nos. 06-3047-cv(L), 06-3106-cv(CON) (2nd Cir., 8/1/07); Internet:
courts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA2LTMwNDctY3Zfb3BuLnBkZg==/06-3047-
cv_opn.pdf
No brief is provided because the opinion is about the length of the description above.
FMLA: light duty pay
Returning to work on light-duty status after a torn rotator cuff injury, the employee was held not
entitled to be paid the same pay as her regular job.
This is not controlling law in our jurisdiction, but it is helpful reasoning.
Hendricks v. Compass Group, USA, No. 06-3637 (7th Cir., 8/6/07); 2007 U.S. App. LEXIS 18606; 154
LC 35,322 [CCH];
Susan D. Hendricks worked as a utility driver when she sustained a workers' compensation injury to
her rotator cuff (shoulder area). A week later she returned to work at light duty on workers'
compensation benefits pay, a difference of $3.23/hr. She sought payment of the differential under the
FMLA.
The district court granted her employer's motion for summary judgment on the grounds that FMLA
leave is unpaid leave and that the collective bargaining agreement (CBA) did not entitle Hendricks to
payment of the wage rate differential. The appellate court agreed and affirmed the judgment of the
trial court:
The FMLA does not provide for paid leave nor does it dictate the wage rate for an employee to
receive while on light duty under a workers' compensation plan. Light duty also is not covered by
Compass Group's CBA. Accordingly, we AFFIRM the district court's grant of summary judgment to
Compass Group.
Title VII: retaliation; close relation in time
Timing is critical in retaliation cases.
This case is not controlling law in our jurisdiction, but the reasoning is sound and might be persuasive
here.
Pantoja v. American NTN Bearing Manufacturing Corporation, No. 06-1252 (7th Cir., 8/6/07); 2007
U.S. App. LEXIS 18611
Juan Pantoja claimed that disciplinary warnings were retaliation or reprisal for filing a racial
discrimination claim, and the appellate court agreed he was entitled to a jury trial because a
reasonable juror could infer from the relevant facts that there was a causal connection between the
employer' discipline and the discovery by the employee's supervisor that the employee had filed an
EEOC claim.
Title VII: religion, pharmacist, contraceptive, accommodation, undue hardship, adverse employment
action; summary judgment
Note the ADA factors imported into this Title VII case. This is becoming quite common in both federal
and state cases.
This case is not controlling law in our jurisdiction, but the reasoning might be persuasive here.
Vandersand v Wal-Mart Stores, Inc., (C.D.IL, 7/31/07); 89 EPD 42,916 [CCH]
This Wal-Mart pharmacist was put on unpaid leave for refusing to dispense emergency
contraceptives was found to have a claim that should be heard by a jury to determine if there were
reasonable accommodations that could be made for his religious beliefs that would not impose an
undue hardship on the employer. Summary judgment for the employer was denied.
ADA: reasonable accommodation
The employer accommodated the employee more than once over the years, and ultimately he
refused a reasonable accommodation and refused to suggest a reasonable one. The appellate court
found the employer was continuing to provide reasonable accommodation, that the employee was
being unreasonable, and that he caused a breakdown in communication in the required ADA
interactive process by not supplying the employer with information sufficient to enable it to attempt to
accommodate him. The interactive accommodation process has been law for many years, and this
case demonstrates that it applies to employees as much as to employers.
This is not controlling law in our jurisdiction, but its reasoning could be persuasive here.
Whelan v. Teledyne Metalworking Products, No. 06-1460 (3rd Cir., 3/15/07); 2007 U.S. App. LEXIS
6268; 19 Am. Disabilities Cas. (BNA) 116
Edward J. Whelan had worked for Teledyne Metalworking Products for many years. In 1993 he
informed his employer that he had a degenerative eye disease; he requested and was given a
transfer to an outside sales job. In 1995 he told his employer that his vision had worsened to the
extent that he could no longer perform the outside sales position, and he was permitted to work from
his home in Pittsburgh as a marketing manager.
Financial problems forced Teledyne to consolidate its operations in Grant, Alabama, including its
marketing department. Whelan was informed that he would be required to transfer and asked him for
information about the accommodations he would need to perform his essential job functions. He
repeatedly proposed only one accommodation - that Teledyne permit him to continue working out of
his home in Pittsburgh, and ultimately he was fired.
On his ADA claim, the jury found in favor of the employer, and the appellate court found that verdict
was supported by substantial evidence, noting that an employee who insists on a single
accommodation and who is responsible for the breakdown in communication in the interactive
accommodation process is not entitled to recover on his ADA claim.
Title VII: religion; pretext; nominal damages, $1, attorney fees and costs
Claims for religious discrimination have risen and held steady.
This case is not controlling law in our jurisdiction, but it is a useful illustration of an interesting aspect
of the problem.
Ollis v. HearthStone Homes, Inc., No. 06-2852 (8th Cir., 7/27/07); 2007 U.S. App. LEXIS 17895; 89
EPD 42,905; Internet: courts.gov/opndir/07/07/062852P.pdf
Doyle Ollis, Jr., presented enough evidence for his case to be heard by a jury: fired for complaining of
mandatory sessions of "Mind Body Energy" emphasizing such things as which spirituality,
reincarnation and "leaving behind all experiences from past lives".
He was discharged on a claim of sexual harassment that was found by the appellate court to be a
pretext for terminating his employment.
Equal Pay Act: sufficient evidence
This case is not controlling law in our jurisdiction, but it can provide guidance to the nature and extent
of evidence required to support a claim under the EPA
Brown v. Fred's Inc., Nos. 06-2503/06-2791 (8th Cir., 7/23/07); 2007 U.S. App. LEXIS 17433, 89 EPD
42,900; Internet: courts.gov/opndir/07/07/062503P.pdf
The jury verdict was affirmed by the appellate court on the ground that a reasonable juror could have
found that Donna Brown's employer failed to prove the salary differences between the manager and
her male counterparts were based on a factor other than gender.
ADEA: double damages affirmed; willful
Willful or intentional discrimination can be costly.
This is not controlling law in our jurisdiction, but it was an expensive lesson for this employer.
Kight v. Auto Zone, Inc., No. 06-3509 (8th Cir., 7/23/07); 2007 U.S. App. LEXIS 17432; 89 EPD
42,904)
Roger Kight, 51, claimed age discrimination, and his award of double damages was affirmed because
sufficient evidence supported it, and the jury instructions on willfulness were appropriate.
Title VII: punitive damages inappropriate, unclear situation, good faith action by employer.
The Eighth Circuit Court of Appeals held that it made no sense to let the jury consider the issue of
punitive or exemplary damages and award them in this case where the employer had attempted in
good faith to comply with the law. As you will recall, the purpose of punitive or exemplary is to punish
or make an example of a defendant who has acted intentionally or recklessly (i.e., in bad faith), which
would not be that case of an employer who had acted in good faith.
This is not controlling law in our jurisdiction, but the appellate court's reasoning and handling of the
fact are persuasive.
Dominic v. DeVilbiss Air Power Co., No. 06-3236 (8th Cir., 7/20/07); 2007 U.S. App. LEXIS 17241
Factually, this case was difficult because it required careful investigation into the credibility of those
employees involved. Four investigations, one led by outside counsel, found no substantiation of the
harassment and retaliation claims.
Downsizing made separating the parties impossible, though t too preventive action that included a
warning to the alleged perpetrator, monitored communications between the parties, and conducted
harassment prevention training for all salaried employees.
ADA: reasonable accommodation, essential function, disability-related tardiness, wheelchair, new no-
fault punctuality policy, strictness
"Reasonable" is a key word in this case, as is "essential". Though courts are reluctant to second-
guess employers, in cases such of this involving inflexibility or lack of common sense, the courts will
allow a jury to decide. This is a good case to read all the way through to see how inflexible
management was shooting itself in the foot - and probably the wallet.
This case is not controlling law in our jurisdiction, but it contains a valuable review of the law, a great
degree of common sense, and almost a parody of a company going wrong in a manner the could be
an episode in The Office television series.
Holly v. Clairson Industries, L.L.C., No. 06-13365 (11th Cir., 7/19/07); 2007 U.S. App. LEXIS 17151;
Internet: courts.gov/opinions/ops/200613365.pdf
Tommy Holly had an excellent work record for seventeen years. Confined to a wheelchair after a
motorcycle accident, he still managed to be a model employee who not only did his job, but often on
his own initiative did more that was required.
Late in his career with Clairson, apparently tardiness and absenteeism became a matter of pressing
importance for the company. For the purposes of this case, the plant primarily operated as an
assembly line production facility. However, after items came off of the assembly line they then went to
the finishing operation in which Holly worked. Significant to this case is that strict needs of the
assembly process were different from those of the finishing process, and it was new management's
failure to recognize that difference that caused it to be in court, and ultimately to find the case going to
a jury to decide what was reasonable and essential relating to Tommy Holly.
Assembly line production requires workers to be on time, in place, and functioning as a cohesive,
efficient unit. Not so for the finishing process, and the appellate court spent a great amount of time
and words making that point.
Holly's problem with clocking in within the narrow time span allowed by the company with its new no-
fault tardiness policy and new high tech recording device was that he often had trouble gaining
access to it: tables or materials stacked close to it, fighting the crowds waiting to clocking, etc. These
problems were related to being wheelchair-bound. Further, the court noted that in Holly's case, what
was at issues often involved only a minute or two. As an excellent, skilled, motivated employee his
supervisor and manager had no problem with his slight and occasional tardiness because he made
up time during the day. Their testimony also pointed out that the finishing process was unlike the
highly integrated assemble line process. Over the years preceding the new no-fault policy things had
worked out very well for the employer and the employee.
The employer argued that tardiness costs the company money because of forced idleness and lost
productivity, though it never demonstrated that was the case on the far more flexible finishing process
[and the company may have a very difficult time proving that to a jury].
Title VII: adverse employment action, trivial harms exception, retaliation, implications for Burlington N.
& Santa Fe Ry. Co. v. White type claims
When the Burlington N. & Santa Fe Ry. Co. v. White decision was published there was concern about
it affect on taking necessary corrective action or adverse employment action with problem employees.
The White case discussed the defense of the trivial harm exception in discrimination cases.
This case is not controlling law in our jurisdiction. It is the first one since White dealing with the issue
of trivial harm, and thus may be valuable in determining the nature and extent of what can be done
with an employee failing to meet performance standards. A trial level decision carries less weight than
an appellate level decision, so proceed carefully. Read it carefully and discuss it with experienced and
competent human resources professionals and legal counsel.
Devin v. Schwan's Home Service, Inc., No. 06-3551 (8th Cir., 7/6/07); 2007 U.S. App. LEXIS 16017;
100 Fair Empl. Prac. Cas. (BNA) 1713; Internet: courts.gov/opndir/07/07/063551P.pdf
Schwan's Home Service, Inc. is a frozen/refrigerated food delivery company, and Jessica T. Devin
was a delivery route driver.
She complained several times of sexual harassment and other discrimination, of stated reluctance by
the employer to discuss past harassment claims, of reprimands by supervisors relating among other
things to critical comments about insufficient customer solicitations, and of denial of assistance for
sales of questionable value.
Here is what was involved:
1. A written warning that customer solicitations were insufficient - no negative consequences: no pay
or benefits lost (in White the employee had been deprived of thirty-seven days of pay).
2. A Route Builder is an assistance program, but denial of it in this instance was found to have been
of no practical value.
3. The employer's decision to focus on future work performance and still allow complaints from the
employee was not a materially adverse employment action under the White decision.
ADA discrimination, misconduct, behavior, misconduct, lack of knowledge, accommodation,

McDonnell Douglas
Misconduct was the reason for termination of employment, not discrimination because of epilepsy.
This is controlling case law in our jurisdiction.
Ainsworth v. Independent School District No. 3 of Tulsa County, Oklahoma, No. 06-5126 (10th Cir.,
4/23/07); 2007 U.S. App. LEXIS 9392; 19 Am. Disabilities Cas. (BNA) 352; Internet:
/ca10/cases/2007/04/06-5126.htm
The decision to fire Ay Ainsworth was based on his inappropriate conduct in a school classroom, and
the school official did not know at the time she decided to fire him that he had epilepsy.
It is basic ADA law that without knowledge of a disability, there can be no discrimination.
Title VII: harassment, hostile work environment, severe, pervasive; summary judgment
Litigation eventually came down to just the issue of hostile work environment.
This is controlling case law in our jurisdiction.
EEOC v. PVNF LLC, No. 06-2011, 487 F.3d 790 (10th Cir., 5/14/07); 2007 U.S. App. LEXIS 11276;
100 Fair Empl. Prac. Cas. (BNA) 1043; 89 Empl. Prac. Dec. (CCH) P42,815; Internet:
/ca10/cases/2007/05/06-2011.htm
It is the totality of circumstances that a jury considers in determining if there was a hostile work
environment, and this case had an astoundingly pervasive collection of abuse.
Title VII, ADEA: sex, age, inconsistent treatment, disparate treatment; business necessity; sufficient
documentation; retaliation
This female bank executive was fired for clear violations of written company policy and for taking
money for her own use.
This is controlling case law in our jurisdiction
Timmerman v. U.S. Bank, N.A., 483 F.3d 1106 (10th Cir., 4/27/07); 2007 U.S. App. LEXIS 9583; 89
Empl. Prac. Dec. (CCH) P42,813; 2007 WL 1229283: Internet: /ca10/cases/2007/04/06-1185.htm
Extensive sufficient documentation proved that the bank had a valid business reason for firing this
executive. Her disparate impact and inconsistent treatment claims failed for lack of valid statistical
proof and failure to prove her treatment was discriminatory in comparison with other situations.
Her retaliation claim was based on the counterclaim filed by the bank for the money she took from it,
and the appellate court affirmed the judgment in favor of the bank.
Title VII: communication, accent, business necessity; discrimination, national origin, comment, direct
proof
Comments by the local human resources manager of a national employer were allowed as direct
evidence of discrimination against a Hispanic employee who spoke fluent English, but with an accent.
The key question is whether the employer's concern was based on a valid business necessity for
clear communication or for discriminatory reasons. For example, there might be a difference between
brief interactions with customers not used to the accent as compared with regular communications
with subordinates who would be accustomed to the accent. One of the aims of Title VII is to break
down stereotypes, biases and prejudices.
This is not controlling law in our jurisdiction, but it is a useful example.
Rodriguez v. FedEx Freight East, Inc., No. 06-1988, 487 F.3d 1001 (6th Cir., 7/27/07); 2007 U.S. App.
LEXIS 15244; 2007 FED App. 0246P (6th Cir.); 100 Fair Empl. Prac. Cas. (BNA) 1475; Internet:
courts.gov/opinions.pdf/07a0246p-06.pdf
Jose Antonio Rodriguez sought promotion to a supervisor position, and in that process the local
human resources manager commented about her concern over his accent and its affect on his ability
to rise in the company, that is, how strong was his accent and did it hamper clear communication?
The implication of that comment is that it was held to be possible direct evidence of discrimination
based on national origin that would require the employer to demonstrate that it had a legitimate
business reason for such a concern.
USERRA: burden of proof
This case states a new and more difficult burden of proof in Uniformed Services Employment and
Reemployment Rights matters, one more difficult than McDonnell Douglas. And as a reminder, be
sure that if you are basing a corrective action or an adverse employment action on a violation of
company policy that:
- the policy is written,
- was distributed and acknowledged,
- the conduct alleged was a violation policy, and
- other employees who have violated the policy have been similarly situated and treated.
This is not controlling law in this jurisdiction, but it is a useful example.
Velazquez-Garcia v. Horizon Lines of Puerto Rico, Inc., No. 06-1082, 473 F.3d 11 (1st Cir., 1/4/07);
2007 U.S. App. LEXIS 114; 181 L.R.R.M. 2097; 153 Lab. Cas. (CCH) P10,775; 88 Empl. Prac. Dec.
(CCH) P42,649;
Internet: courts.gov/cgi-bin/getopn.pl?OPINION=06-1082.01A
Carlos Velazquez-Garcia was a shift supervisor and also a Marine Corps reservist. Timing of his firing
was critical because coincidentally with his return from duty he accused of violating company policy of
conducting personal business.
USERRA prohibits discrimination against employees because of their military service.
The appellate court stated a new test of discrimination based on two factors:
1. An employee must initially show that his military service was a motivating factor in his termination,
and
2. The employer must prove that the firing [or other adverse employment action] would have occurred
despite the employee's military service.
[Note: This two part test is more difficult than the typical McDonnell Douglas test:
1. An employee must make a threshold showing of discrimination.
The difference is significant because under this new USERRA test the employee doesn't have the
burden of showing that the employer's stated reason was a pretext. Rather, the employer now must
show that its stated reason wasn't a pretext and the termination would have occurred even if the
employee hadn't served in the military.]
FMLA: interaction of paid and unpaid leave policies and federal regulations
This case is not controlling law in our jurisdiction. However, it contains important reasoning.
Repa v. Roadway Express Inc., ___ F.3d ___, 2007 WL 569852 (7th Cir., 2007); Internet:
/data2/circs/7th/062360p.pdf
[Note: Because of the highly technical and specific nature of this case, it will not be briefed and
practitioners are encouraged to read the entire decision.]
ADA: attorney fee, no monetary award, order to destroy test results
An employee must gain something of value as a result of discrimination litigation in order for attorney
fees to be awarded. The court ordered the employer to destroy psychological test results previously
ruled inappropriate under the Americans with Disabilities Act [See the previous case brief of the
Karraker case in this database], and that sufficient to qualify for an attorney fee award.
This Seventh Circuit case is not controlling law in our jurisdiction, but its reasoning might be
persuasive here.
Karraker v. Rent-A-Center, No. 06-2617 (7th Cir., 7/9/07); 2007 U.S. App. LEXIS 16184
RAC's managerial test included a Multiphasic Personality Inventory (MMPI), which earlier had been
held inappropriate under the ADA. Plaintiffs now sued to have the test results destroyed, and, which
ultimately was ordered by the court, along with a $1 nominal damages award.
The 1992 United States Supreme Court opinion in Farrar v. Hobby, 506 U.S. 103, had held that $1 In
nominal damages was sufficient to support an award of attorney fees:
[A] plaintiff 'prevails' when actual relief on the merits of his claim materially alters the legal relationship
between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff.
In this Karraker case the request for relief was for an injunction mandating the destruction of
psychological test results, and the Seventh Circuit Court of Appeals found that to be at least worth $1,
and therefore a sifficiennt basis for an award of an attorney fee.
[Note: The case did not implicitly rule on the reasonableness of the award.]
ADA: reasonable accommodation, wheelchair, interactive process to determine accommodation
Just a reminder of previous case law: when a disability is apparent, the employee need not
necessarily request an accommodation, and the process of exploring whether an accommodation is
reasonable must be interactive.
Equal Employment Opportunity Commission v. Convergys Customer Management Group, Inc., No.
06-2874, (8th Cir., 7/6/07); 2007 U.S. App. LEXIS 16019; available on the Internet:
This case is not controlling law in our jurisdiction, but the reasoning has been applied here.
FMLA: waiver, court of DOL approval required
This decision from outside of our jurisdiction points of something that we may need to pay attention
to: a Department of Labor (DOL) regulation interpreting the Family and Medical Leave Act (FMLA)
prohibits employees from waiving FMLA rights, even in a post-dispute settlement, unless a court or
the DOL approves the waiver. Discussing it with your employment law attorney would be a good idea.
This Fourth Circuit Court of Appeals case is not controlling law in our jurisdiction.
Taylor v. Progress Energy, No. 04-1525 (4th Cir., 7/3/07); 2007 U.S. App. LEXIS 15846; available on
the Internet at: courts.gov/opinion.pdf/041525.P.pdf
DOL regulation §220(d), provides: "Employees cannot waive, nor may employers induce employees
to waive, their rights under FMLA." 29 C.F.R. §825.220(d).
The Fourth Circuit Court of Appeals held that this regulation means that employees may not waive
their FMLA rights without either DOL or court approval. Essentially, its reasoning was that the
regulation is clear and, like the FLSA, the FMLA provides certain minimum standards and rights that
must be upheld in order not to undermine the intent of Congress.
Title VII: termination: settlement agreement, rehire, legitimate non-discriminatory reason; summary
judgment, McDonnell Douglas
Should a termination agreement include a provision declaring the employee ineligible for rehiring? It
depends on how that agreement is worded and relied upon, and in part this decision also depended
on the trial court procedural rules and the employee's failure to adequately use them.
Lesson: In these situations, be careful what you say and how you say it: relying on the termination
settlement prohibiting rehire is okay, but referring to a former discrimination claim or lawsuit would be
an error because it could be the basis for the employee of pretext allegation under the McDonnell
Douglas discrimination evidentiary rules (see numerous previous case briefs here setting forth those
elements of proof). As you will see, the response from the company's corporate office focused on (1)
her insufficient sales performance and (2) the terms of her settlement agreement barring her from
reemployment - not her prior claim of discrimination.
This case is controlling law in our jurisdiction
Jencks v. Modern Woodmen of America, No. 05-5130, 479 F.3d 1261 (10th Cir, 3/19/07); 2007 U.S.
App. LEXIS 6302; 89 Empl. Prac. Dec. (CCH) P42,740; available on the Internet at:
/ca10/cases/2007/03/05-5130.htm
The appellate court summarized the case [partially edited]:
MWA, an insurance company, employed Jencks in 1990 as a district manager. * * * In 1994, she was
terminated from that position and offered a contract as a district representative, a sales agent
position. She accepted the demotion. Due to on-going problems with her production, she was
terminated from the district representative position but was offered * * * a district agent contract. This,
she did not accept. She filed a claim with the EEOC, alleging discriminatory demotion (from district
manager to district representative) and discharge (from the district representative position). She then
sued MWA, adding claims of sexual harassment, retaliation and racial discrimination. The court
granted summary judgment as to all claims relative to Jencks' termination because the district
representative position was that of an independent contractor, not an employee. The claim of sexual
discrimination in the demotion from district manager to district representative proceeded to trial.
Jencks prevailed and the court ordered her reinstated to the district manager position. Jencks and
MWA then entered into a Mutual, General, and Complete Release (the "Settlement Agreement") in
which, among other things, Jencks waived any entitlement to re-employment or reinstatement with
MWA.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - * * *
As district manager, Jencks was an employee of MWA. However, all other positions involved in this
case are independent contractor positions. The parties are careful to distinguish these positions.
MWA in particular is very precise in referring to Jencks' relationship with it - both in the past and in
this case - as an "affiliation" and not employment.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
A few years after her termination MWA made a mass mailing to insurance agents in her area soliciting
applications for the position of sales agent. Jencks applied. The state manager and her former
supervisor replied that because of her settlement agreement and "history" with the company the
ultimate hiring decision would have to be made by the corporate office. Corporate's letter sent to her a
few days later stated she wasn't eligible for two reasons: (1) of her insufficient sales results when she
previously worked for the company and (2) the terms of her settlement agreement barred her from
reemployment.
Jencks sued for discrimination and also claimed retaliation for her prior suit against the company.
MWA contended it was not retaliating, but rather was enforcing its rights under the termination
settlement agreement.
The summary judgment granted in favor of the employer by the trial court was affirmed. One reason
was that the employee had failed to adequately respond to the employer's motion for summary
judgment.
Union, Public sector: agency-shop agreements
An "agency-shop" agreement requires a union to obtain permission from those paying union agency
fees before using their money for political purposes. Nonunion employees pay fees to a union whose
collective bargaining activities have gained benefits for a group of employees. How much nonunion
employees members pay in comparison to union members depends on a "fair share" accounting
formula that estimates how much of a union's activities resulted in employment benefits and how
much of its activities were for other purposes, such as politics, ideology, etc. Refer to these cases
previously briefed in this database:
A "fair-share" fee is charged by unions on non-union members for the proportionate share of the cost
of negotiating and administering the collective bargaining agreement and adjusting grievances and
disputes of bargaining unit employees. Essentially, it is the charge assessed on non-union employees
for the benefits they obtain from the union's efforts on wages and terms of employment. Wessel v.
City of Albuquerque, CIV 00-0065 LH/KBM (D.N.M. Mem. Op., July 27, 2004); Harrington v. City of
Albuquerque, CIV 01-0531 LH/WDS (D.N.M. Mem. Op., July 27, 2004).
When public sector employees are involved, First Amendment (free speech) issues arise because
individual employees may be forced to contribute money to a union as a condition of their
employment.
This case is controlling law in our jurisdiction, and it holds that states do not violate the First
Amendment of the United States Constitution by requiring public-sector unions to obtain authorization
from nonmember agency fees payers prior to using nonmembers' money for political purposes.
Davenport v. Washington Education Association, Nos. 05-1589, -1657, ____ U.S. ____ (USSC,
6/14/07); 2007 U.S. LEXIS 7722
In 1992 voters in the state of Washington voted in favor of Initiative 134, a political campaign reform
initiative that, among other things, capped political contribution and required annual, written
authorization from workers before deducting funds from their paychecks to be used for political
purposes. Legislation resulting from that initiative, know as "Section 760", provided in pertinent part
that:
A labor organization may not use agency shop fees paid by an individual who is not a member of the
organization to make contributions or expenditures to influence an election or to operate a political
committee, unless affirmatively authorized by the individual. (Wash. Rev. Code § 42.17.760)
Extensive litigation followed challenging how nonunion employees could notify the WEA of their
request to receive a rebate of union dues deducted from their paychecks for purposes other than for
the union's efforts on wages and terms of employment.
The United States Supreme Court held that it was upholding Section 760 only as it applied to public
sector unions [thereby leaving open the issue of how private sector unions might be affected]. It ruled
that Section 760 did not violate the First Amendment of the United States Constitution, and rejected
the WEA's contention that it limited the union's use of money in specifically finding that Section 760
simply is "a condition placed upon the union's extraordinary state entitlement to acquire and spend
other people's money."
Title VII: racial discrimination, prompt remedial action
Recognizing an error and promptly moving to investigate and correct the situation often can save an
employer form liability.
This case is not controlling law in our jurisdiction, but it illustrates that courts will recognize
reasonable actions by an employer to correct a situation and not find an employer liable for an initially
erroneous act.
Fair v. Norris, No. 06-1580, 480 F.3d 865 (8th Cir., 3/27/07); 2007 U.S. App. LEXIS 7059; 100 Fair
Empl. Prac. Cas. (BNA) 517; 89 Empl. Prac. Dec. (CCH) P42,752
Viola Fair, an African-American employee of the Arkansas Department of Correction, applied for a
position at an entry-level salary. In the screening process, an ADC employee erroneously denied her
points for her college degree because it was considered not to qualify for extra points, and that kept
Fair out of the top three applicant positions.
Fair filed an internal grievance based on racial discrimination, and she asked her employer to remedy
the problem by hiring her at the maximum pay level, plus retroactive pay and benefits.
The employer's investigation disclosed the error, and after about three weeks met with Fair, explained
the error and offered her the position at the entry-level rate of pay retroactive to the date when she
would have been hired. Fair rejected that and sued.
Ultimately, the courts found it was not necessary to decide if she had been discriminated against
because she had not been rejected from the position [partially edited]:
We need not reach the question of pretext in this case, because Fair was not ultimately rejected for
the promotion. Therefore, we find that Fair failed to present a prima facie case of discrimination. See
Ross v. Kansas City Power & Light Co., 293 F.3d 1041, 1046 (8th Cir. 2002) (listing the four elements
of a prima facie case for the failure to promote under Title VII, one of which is a showing that the
plaintiff was rejected for the position she sought). It is true that the ADC initially failed to hire Fair for
the position she sought. Had the ADC not taken corrective action and offered Fair the job after
reviewing her grievance, she may have been able to present a prima facie case of discrimination.
Once the ADC made its subsequent * * * offer of the promotion with retroactive pay and benefits,
however, it had no longer rejected Fair for the promotion. The basis for Fair's initial grievance was the
ADC's failure to select her for the position; the ADC acted upon this grievance, discovered that it had
erroneously rejected her for the promotion, and attempted to right its prior wrong by offering her the
position she wanted. Even if there were flaws in the manner in which the ADC handled Fair's
grievance, its ultimate decision to offer the promotion to Fair is the kind of extrajudicial corrective
action envisioned by Congress when it passed Title VII. See Burlington Indus., Inc. v. Ellerth, 524
U.S. 742, 764, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998) (noting "Congress' intention to promote
conciliation rather than litigation in the Title VII context").
As for the three weeks period during which the employer was investigating and deciding what to do,
that was found to be a minor inconvenience not compensable under the law.
FLSA: health aides and other companions employed by third parties, overtime exemption
inapplicable; deference by courts to agency interpretation
A longstanding Department of Labor regulation interpretation was upheld by the United States
Supreme Court on the grounds that courts generally defer to an administrative agency's
interpretations of its own regulations unless that interpretation is "plainly erroneous or inconsistent
with" the regulations in question.
This is controlling law in our jurisdiction.
Long Island Care at Home Ltd. v. Coke, No. 06-593 ____ U.S. ____ (USSC);
premecourtus.gov/opinions/06pdf/06-593.pdf
Evelyn Coke was employed by Long Island Care at Home as a "home healthcare attendant" for the
elderly. She sued her employer, alleging rights to overtime and minimum wags under the Fair Labor
Standards Act (FLSA). The federal district trial court ruled in favor of her employer, holding that she
fell under the FLSA's exemption for employees engaged in "companionship services", thereby giving
deference to the Department of Labor's (DOL) regulation 29 CFR Section 552.109(a) exempting
employees in "companionship services" who are "employed by an employer or agency other than the
family or household using their services."
Reversing the trial court, the U.S. Court of Appeals for the Second Circuit ruled that the regulation
unenforceable because it was a misinterpretation of the statute. It declined to give the DOL's
regulation any of the judicial deference normally due to administrative regulations because the
regulation was under a section titled "Interpretations." Regulations that are interpretive rather than
legislative are not entitled to deference. The Court of Appeals also ruled that the regulation was
"unpersuasive in the context of the entire statutory and regulatory scheme," and thus not entitled to
deference.
However, the United States Supreme Court reversed the appellate court, stating that the DOL's
regulation was within the scope of its of rulemaking authority delegated by Congress in the FLSA and
that "an agency's interpretation of its own regulations is "controlling" unless 'plainly erroneous or
inconsistent with' the regulations being interpreted."
Where an agency rule sets forth important individual rights and duties, where the agency focuses fully
and directly upon the issue, where the agency uses full notice-and-comment procedures to
promulgate a rule, where the resulting rule falls within the statutory grant of authority, and where the
rule itself is reasonable, then a court ordinarily assumes that Congress intended it to defer to the
agency's determination.
Title IV, ERISA: merger does not terminate plan, bankruptcy, defined plan,
For those of you practicing in the area of benefits, check this case for the specific details: Beck,
Liquidating Trustee of Estates of Crown Vantage, Inc., et al. v. PACE International Union, et al., No.
05-1448 ____ U.S. ____ (USSC 6/11/07), 2007 U.S. LEXIS 7716
USERRA: hostile work environment.
Over the years we have seen courts allowing a liability theory from one anti-discrimination act to be
applied in another anti-discrimination act. A federal district court in the Kentucky recently allowed the
hostile work environment liability theory developed in Title VII, then applied in the ADA, to be applied
in USERRA: Steenken v. Campbell County, No. 04-224-DLB, (U.S.E.D, KY, 3/15/07); 2007 WL
837173
Title VII: "reverse" religious discrimination; evidence, McDonnell Douglas burden-shifting test, pretext;
summary judgment for employer reversed
Claims of reverse religious discrimination are rare. However, this case held that when there is an
issue of fact about whether an employer's reason for an adverse employment was a pretext to cover
up discrimination, the employee may present either direct evidence employer's discriminatory motive
or indirect evidence that undermines the credibility of the employer's articulated reasons [pretext]:
- Direct evidence stands on its own to prove an alleged fact, such as testimony by a witness about
what that witness personally saw or heard or did, e.g., testimony of a witness who says he saw a
defendant pointing a gun at a victim during a robbery.
- Indirect evidence of discrimination or retaliation may be proved by the McDonnell Douglas:
1. An employee must first present a prima facie case [basically legally sufficient] of discrimination.
2. If the employee does so, the burden then shifts to the employer to produce a legitimate,
nondiscriminatory justification for taking the disputed employment action.
3. If the employer satisfies this burden, the employee then must provide evidence that the employer's
proffered reasons are merely a pretext for discrimination.
This case is not controlling law in our jurisdiction, but it illustrates an important evidentiary point that
may be available for trial attorneys. Also, it is yet another case demonstrating the need to document
objective criteria that were the basis for a promotion, especially when qualifications of competing
employees are significantly different.
Noyes v. Kelly Services, No. 04-17050 (9th Cir. May 29, 2007); 2007 U.S. App. LEXIS 12356
The appellate court stated the facts [partially edited]:
Lynn Noyes alleges that a supervisory employee at her former employer, Kelly Services, Inc. ("Kelly
Services"), was a member of a small religious group, the Fellowship of Friends ("Fellowship"), and * *
* that he repeatedly favored and promoted other Fellowship members. Noyes claims that she was
passed over for a promotion because she does not adhere to the religious beliefs of the Fellowship,
and that a Fellowship member was promoted instead. She appeals the district court's order granting
summary judgment in favor of Kelly Services on her Title VII disparate treatment claim and dismissing
her state law claims for lack of subject matter jurisdiction.
She worked in the computer software and multimedia department from October 1994 until she was
laid off in May 2004. In 2001 the position of Software Development Manager opened up and she
applied for it. No candidates from outside of the company were considered. The senior manager
responsible for filling that position belonged to a religious group called the Fellowship of Friends. Of
the several candidates, only one was a member of the Fellowship. The senior manager stated during
the screening process that Noyes was not interested in the position, which she stated was false. The
employee offered the promotion was a Fellowship member, and the senior manager said he was
concerned that it might be considered favoritism. Noyes, an MBA, had worked for the company for six
years longer than the employee promoted, and not an MBA, and she pointed out that the senior
member had given preferential treatment to the promoted employee, plus paying him a higher salary
because of his "lifestyle.
The main issue on appeal was whether to reverse the summary judgment in favor of the employer
i.e., did Noyes have sufficient evidence of discrimination to entitle her to a jury trial? Applying the
McDonnell Douglas test, the appellate court found that (1) she had established a prima facie case of
discrimination, (2) the employer had offered an apparently legitimate, nondiscriminatory justification
for taking the disputed employment action. That left the issue of (3) whether the employer's reason
was a pretext, and the appellate court found that the summary judgment in favor of the employer
should be reversed because the plaintiff had established that there was a material [triable] issue of
fact for a jury. Her best evidence was the senior manager's statement that she was not interested in
the position, his past favoring of the promoted employee, and the better qualifications of Noyes
compared with the man who got the job.
FCRA: Fair Credit Reporting Act, willful violation, intentional or reckless conduct required
For a violation of the Fair Credit Reporting Act to be "willful", the United States Supreme Court has
ruled that it must have been committed "knowing and recklessly". This case the controversy was over
denial of insurance coverage. In the employment context, the Act would cover checking on credit of
employees in the background check process.
Safeco Insurance Company of America v. Burr, Nos. 06-84 and 06-100 (USSC 6/4/07); ____ U.S.
____, 2007 U.S. LEXIS 6963, decided together with No. 06-100, GEICO General Insurance Co. et al.
v. Edo, also on certiorari to the same court
Under the Act:
- if a violation is willful, the damages allowed by statute are:
- actual damages sustained by the employee,
- statutory damages ranging from $100 to $1,000,
- punitive damages, plus
- attorney fees and court costs.
- if a violation is willful, the damages allowed by statute are:
- actual damages sustained by the employee,
- attorney fees and court costs.
[Thus, there is a significant difference in the potential liability and recovery. An action is reckless if it
was objectively unreasonable. Essentially then, this distinction amounts to whether the conduct was
intentional or negligent.]
FLSA: going and coming, Portal to Portal Pay
When is a worker paid for commuting costs? Under the FLSA, the question is whether an activity is
"integral and indispensable part" of the employees' principal work, and to determine that the factors to
be considered include whether the activity:
- is required by the employer,
- is necessary for the employee to perform his or her duties, and
- primarily benefits the employer.
Bonilla v. Baker Concrete Construction, No. 06-12515 (11th Cir., 5/30/07); 2007 U.S. App. LEXIS
12431
The court stated these critical facts [partially edited]:
Appellants were construction workers employed by appellee, a subcontractor for the lead contractor
Turner-Austin, for the North Terminal project at Miami International Airport ("MIA project") from
approximately November 2001 until March 2003.
***
In order to reach their work sites inside the airport, appellants were required to pass through a single
security checkpoint to the tarmac and then ride authorized buses or vans to their particular work site.
Because FAA regulations prohibit unauthorized vehicles in the secured tarmac area, Turner-Austin
provided free buses or vans to transport appellants and other workers from the free employee parking
lot to the security gate and on through to each of the separate work sites. Appellants were not
required to park at the employee lot, but they were required to enter the facility through the single
authorized security entrance and then ride the contractors' authorized vehicles to the various work
sites. The security gate was near other public parking lots and a public bus stop; appellants were free
to meet the authorized vehicle at the security gate rather than at the employee parking lot several
miles away. Riding Turner-Austin's authorized vehicles was the only way for the workers to access
the construction sites after passing through the security gate.
The employees did not perform any labor while waiting for or riding the vehicles, either at the
beginning or end of each work [*3] day. No instructions were given by the supervisors nor were any
tools carried on the buses because the tools were kept at the work sites. Appellants signed in at the
work site and then received their instructions for the day. At the end of the day, appellants would sign
out before boarding the bus to leave the airport through the security gate.
Although appellants claim that appellee or Turner-Austin supervisors did work on the vehicles and at
the security gate (head counts and general supervision), appellants do not claim that they had any
responsibilities or duties before arriving at their respective sites other than to show their identification
at the security gate and carry their personal safety equipment, including safety goggles, a hard hat,
and work boots. Appellants point to the contractors' agreement with the airport, the Construction
Related Requirements ("CRR"), that requires all employees to display their personal safety
equipment as a condition of being transported to the job site. Appellee disputes appellants' claim that
there was any evidence that employees were required to carry their personal safety equipment on the
bus.
Appellants were not paid by appellee for the * * * time spent riding the buses or vans. There were no
allegations that appellee, Turner-Austin, or any representative of appellee ever discussed with
appellants whether they would be paid for the time waiting for or riding the authorized buses, nor
were there any requests by appellants to be paid for this time.
Based on the three factors applied to these facts, Portal to Portal Pay was denied.
Title VII: statute of limitations, time-barred claim, wage claim, pay discrimination, discriminatory intent,
disparate impact
When must an employee make a wage discrimination claim? That depends on the circumstances.
Here, the United States Supreme Court held that the employee's wage discrimination claim was
limited by the requirement that she file within 180 days of the discriminatory act (300 days in NM and
some other states).
Basically, this case favors employers. Because the nature of the discrimination makes the critical
difference here, attorneys will need to read the entire case very carefully, and clients should seriously
consider having this opinion interpreted for them by their legal counsel. Many hairs are split here, and
the legal distinctions may seem elusive, so a great deal of legal expertise will be involved in
understanding how one situation may differ from another.
Ledbetter v. The Goodyear Tire & Rubber Company, Inc., No. 05-1074 (USSC, 5/29/07); ____ U.S.
____, 2007 U.S. LEXIS 6295; premecourtus.gov/opinions/06pdf/05-1074.pdf
The United States Supreme Court, Justice Alito writing for the majority, quoted the legal issue stated
by Lilly M. Ledbetter, the employee claiming gender discrimination [partially edited]:
Whether and under what circumstances a plaintiff may bring an action under Title VII of the Civil
Rights Act of 1964 alleging illegal pay discrimination when the disparate pay is received during the
statutory limitations period, but is the result of intentionally discriminatory pay decisions that * * *
occurred outside the limitations period.
***
Title VII of the Civil Rights Act of 1964 makes it an "unlawful employment practice" to discriminate
"against any individual with respect to his compensation . . . because of such individual's . . . sex." 42
U.S.C. § 2000e-2(a)(1). An individual wishing to challenge an employment practice under this
provision must first file a charge with the EEOC. § 2000e-5(e)(1). Such a charge must be filed within
a specified period (either 180 or 300 days, depending on the State) "after the alleged unlawful
employment practice occurred," ibid., and if the employee does not submit a timely EEOC charge, the
employee may not challenge that practice in court, § 2000e-5(f)(1).
In addressing the issue * * * whether an EEOC charge was filed on time, we have stressed the need
to identify with care the specific employment practice that is at issue. Morgan, 536 U.S., at 110-111,
122 S. Ct. 2061, 153 L. Ed. 2d 106.
Lilly M. Ledbetter was a salaried worker for Goodyear from 1979 to 1998, and during that time
salaried employees were granted raises, or denied them, based on how their supervisors evaluated
their performance. Lilly apparently did not learn of her initial lower pay status until close to the time
she was to leave her employment with Goodyear [and her initial status affected all of her subsequent
raises].
Her wage discrimination claim made a number of allegations under various legal theories, two of
which were a Title VII pay discrimination claim and an Equal Pay Act claim. In essence, she asserted
that during her Goodyear employment that [partially edited]:
. . .employment several supervisors had given her poor evaluations because of her sex, that as a
result of these evaluations her pay was not increased as much * * * as it would have been if she had
been evaluated fairly, and that these past pay decisions continued to affect the amount of her pay
throughout her employment.
***
[A] disparate-treatment challenge focuses exclusively on the intent of the employer"). However,
Ledbetter does not assert that the relevant Goodyear decisionmakers acted with actual discriminatory
intent either when they issued her checks during the EEOC charging period or when they denied her
a raise in 1998. Rather, she argues that the paychecks were unlawful because they would have been
larger if she had been evaluated in a nondiscriminatory manner prior to the EEOC charging period.
Having framed the issue this way, the majority concluded that her failure to claim discrimination at the
time she alleged the discrimination occurred would bar her claim for wages back beyond the 180 day
limitation period. The court noted that a disparate-treatment claim requires proof of two elements: (1)
an employment practice and a discriminatory intent by the employer.
Ledbetter argued that in Bazemore v. Friday, 478 U.S. 385, 106 S. Ct. 3000, 92 L. Ed. 2d 315 (1986)
(per curiam) [means the entire court] would apply to her situation. But Bazemore involved a
government agency using a scheme in which employees had originally been segregated into "a white
branch" and "a 'Negro branch'" in which the Negroes received less pay. In 1965 the two branches
were merged, and after Title VII was amended in 1972 to cover public sector employees, the Negro
employees sued on the basis that the pay disparities attributable to the original discriminatory old pay
scale persisted and affected their subsequent raises. That discrimination claim was timely made.
Thus,
Bazemore stands for the proposition that an employer violates Title VII and triggers a new EEOC
charging period whenever the employer issues paychecks using a discriminatory pay structure. But a
new Title VII violation does not occur and a new charging period is not triggered when an employer
issues paychecks pursuant to a system that is "facially nondiscriminatory and neutrally applied."
[The term "facially" means that something is in plain, obvious terms, i.e., on its face, either
discriminatory or not.]
Justice Alito continued [partially edited]:
Contrary to the dissent's assertion, * * * what Ledbetter alleged was not a single wrong consisting of a
succession of acts. Instead, she alleged a series of discrete discriminatory acts * * * (arguing that
payment of each paycheck constituted a separate violation of Title VII), each of which was
independently identifiable and actionable, and [the Morgan[case] is perfectly clear that when an
employee alleges "serial violations," i.e., a series of actionable wrongs, a timely EEOC charge must
be filed with respect to each discrete alleged violation.
[Note: As you may have concluded by now, this is an intricate case to analyze. However, basically the
lesson appears to be that employees must be alert and aware of the terms and conditions of their
employment in order to timely assert their rights. Much of this is discussed in the dissent by Justice
Ginsburg. Also, this decision may be an example of the kinds of decisions one might anticipate
coming from this court, that is, technical and involving close reading and interpretation of former law
in a manner perhaps not seen for many years, plus a policy to not decide any more than is necessary
to conclude the matter.]
ADA: not regarded as disabled, class of jobs
Merely being unable to perform a specific job is not enough to qualify for ADA coverage; the inability
must be for a class of jobs.
Equal Employment Opportunity Commission v. Burlington Northern and Santa Fe Railway Company,
No. 06-6074 (10th Cir., 11/29/06); 211 Fed. Appx. 682; 2006 U.S. App. LEXIS 29526; 18 Am.
Disabilities Cas. (BNA) 1427
This opinion not sufficiently instructive enough to be briefed.
Title VII: discrimination, disparate treatment, not similarly situated, different degrees of fault,
dishonesty valid business reason for firing, retaliation, close timing
Circumstances differed to a legally significant degree to support summary judgment in favor of the
employer's firing of a female officer but not the male office in a jail suicide incident.
McGowan v. City of Eufala, No. 04-7083, 472 F.3d 736 (10th Cir., 12/19/96); 2006 U.S. App. LEXIS
31277; 99 Fair Empl. Prac. Cas. (BNA) 747
Jean McGowan had been with the city since 1983. In 2003 a prisoner committed suicide by hanging
himself with his belt while in the jail on her watch. The male officer who arrested the prisoner failed to
take his belt. This was a violation of written jail policy. As the jailer on duty, McGowan was to visually
inspect the prisoner and his cell to ensure his safety. Both officers were suspended for thirty day and
placed on probation. Later the city conducted an investigation over a period of three months, and it
discovered that not only had McGowan not only failed to make the required inspections, she had
falsified the logs.
A complicating factor was that in 1999 the chief of police had requested McGowan's assistance in an
EEOC investigation of a discrimination claim by an African-American officer, and she had refused.
She claimed that because of her refusal, the chief and other officers retaliated against her and that
her son and his girlfriend were harassed by the department. Additionally, she claimed she had been
improperly denied her request to transfer to the day shift despite her seniority. One day after her
testimony in the 1999 discrimination case, she was fired [thereby creating an interesting timing issue].
The city's reason for firing her was because of her great amount of culpability in the suicide incident,
and her dishonesty about it.
This was sorted out by the appellate court as follows:
Harassment: This was legally insufficient because it was directed at her son and his girlfriend rather
than at her.
Termination:
- Causal connection: There was a sufficient adverse employment action to support a discrimination
claim. The timing was also a significant factor in showing a possible link between her actions in the
1999 discrimination claim and her firing, and a jury might be able to infer a causal connection based
on that.
- Disparate treatment/similarly situated employees: The court found significant differences between
McGowan's culpability and that of the arresting officer in the suicide incident: Dawson violated police
policy by failing to remove the prisoner's belt and was honest about that omission, whereas McGowan
violated state law requiring visual inspections, she was not, plus she was dishonest.
Thus, the appellate court decided that the critical cause for her termination was based on a legitimate
and non-discriminatory reason: the suicide occurred on her watch and she was dishonest about it.
Title VII: racial discrimination, hostile work environment, pervasive behavior
One is issue in a hostile work environment discrimination harassment case is whether the behavior
was severe or pervasive. Here is a gritty and graphic example.
Herrera v. Lufkin Industries, Inc., No. 04-8089, 474 F.3d 657 (10th Cir., 1/4/07); 2007 U.S. App. LEXIS
421; 99 Fair Empl. Prac. Cas. (BNA) 809; 89 Empl. Prac. Dec. (CCH) P42,657
The appellate court found the following behavior and incidents to demonstrate what is persuasive,
and it was the basis of its ruling on that issue [partially edited]:
Herrera presented evidence of several discrete incidents of racial harassment occurring during the
four years that Buddy Moore oversaw Lufkin's Casper service center while Herrera worked there.
Herrera testified that when he first met Moore, in 1997, Moore refused to shake Herrera's hand. And
in 1999, Moore sent Cunningham some candy with a note attached indicating it was "Mexican peanut
brittle." Moore directed that Cunningham give this candy to Herrera. Cunningham did so, including
Moore's note. Herrera was offended. Herrera sought advice from an attorney about these incidents
and complained to Lufkin's human resources attorney, to no avail.
Also in 1999, Moore told Cunningham to have Herrera talk to a certain customer because that
customer was Mexican. Cunningham relayed this message to Herrera. On another occasion in 1999,
Moore himself told Herrera to go see another customer because that customer "was from San
Antonio . . . so he likes Mexicans." In addition, Moore once said directly to Herrera, "Spanish lover,
come here."
On yet another occasion, Moore told Cunningham to tell Herrera not to "Mexicanize" Herrera's new
company truck. Carolyn Coleman, the Casper service center's * * * secretary, translated "Mexicanize"
to mean "lots of chrome, you know, dice hanging off the mirror." Moore also wanted Herrera to
remove a cactus from atop the truck's antenna. Moore gave this directive several times in late 2000
and again in early 2001. Cunningham relayed these comments to Herrera.
In addition to these discrete incidents, however, Herrera also asserted evidence of other ongoing
harassment occurring during this entire four-year time period. Moore would refer to Herrera as "the
Mexican" or "the fucking Mexican" whenever Moore would speak to Herrera's supervisor,
Cunningham, and sometimes when Moore spoke to the Casper service center's secretary, Carolyn
Coleman, and the warehouse manager, Bill Bryant. This did not happen just once or twice. Rather,
there is evidence that Moore made such comments every two to three days. * * * Although
Cunningham did not tell Herrera about these comments every time Moore made such references to
Herrera, both Cunningham and Coleman did occasionally tell Herrera about them. * * * Further, in
light of Moore's racially charged comments, Cunningham specifically warned Herrera to be wary of
Moore because he was a bigot.
FMLA: interference, retaliation
Are claims for interference and for retaliation mutually exclusive? An interference claim would seem to
be based on conduct prior to FMLA leave in an effort to deny or prevent it, whereas a retaliation claim
would seem to be based on conduct afterwards. However, in this case both types of claims were
allowed to be asserted. Do note that the employer's timing was uncomfortably close and probably
could have been better. In the end, the employer won the case because it proved a solid case of the
employee's deficient performance to have been the actual reason for terminating her employment.
This case is controlling law in this jurisdiction.
Campbell v. Gambro Healthcare, Inc., No. 06-3062, 478 F.3d 1282 (10th Cir., 3/9/07); 2007 U.S. App.
LEXIS 5545; 154 Lab. Cas. (CCH) P35,262; 89 Empl. Prac. Dec. (CCH) P42,746; 12 Wage & Hour
Cas. 2d (BNA) 677. [Also seethe illustrative (not controlling law) case of Bryant v. Dollar General, No.
07-5006, 538 F.3d 394 (6th Cir., 8/15/08); 2008 U.S. App. LEXIS 17310; 2008 FED App. 0294P (6th
Cir.); 156 Lab. Cas. (CCH) P35,467; 91 Empl. Prac. Dec. (CCH) P43,306; 13 Wage & Hour Cas. 2d
(BNA) 1697; Internet: courts.gov/opinions.pdf/08a0294p-06.pdf.]
The appellate court stated [partially edited and reformatted for clarity]:
To establish an interference claim, Campbell must show:
(1) that [s]he was entitled to FMLA leave,
(2) that some adverse action by the employer interfered with her right to take FMLA leave, and
(3) that the employer's action was related to the exercise or attempted exercise of her FMLA rights.
To make out a prima facie retaliation claim, Campbell must show that:
(1) she engaged in a protected activity;
(2) Gambro took an action that a reasonable employee would have found materially adverse; and (3)
there exists a causal connection between the protected activity and the adverse action.
We have characterized the showing required to satisfy the third prong under a retaliation theory to be
a showing of bad intent or "retaliatory motive" on the part of the employer. * * * Notably, we interpret
retaliation claims under the burden-shifting architecture of McDonnell Douglas Corp. v. Green,
whereas the employer bears the burden of proof on the third element of an interference claim once
the plaintiff has shown her FMLA leave was interfered with. * * * Due to this difference in where the
burden lies with respect to the third element of each theory, it is not unusual for a plaintiff to pursue an
interference theory while the defendant argues * * * that the evidence may only be analyzed under a
retaliation theory.
Eunice Campbell was a Patient Care Technician (PTC) for Gambro Healthcare, Inc. (Gambro), at its
Atchison clinic, a small facility with only five employees that provided end-stage renal dialysis and
related services. Campbell cared for patient and also served as the clinic's inventory technician,
secretary, and was responsible for maintaining patient charts and data.
When the Atchison clinic began to experience a steady decline in the number of patients, Gambro
decided to reduce PCT weekly hours to twenty-four. Though it stayed open, profitability decreased
greatly.
Campbell slipped and fell at home, injuring her back and also aggravating it pre-existing degenerative
condition. Company policy required employees to notify the employer of anticipated absences, and
she missed her next shift. FMLA leave was requested by her for back surgery, which was approved.
The clinic's director complained to Gambro's regional director by email that Campbell was unreliable
and that her absence had disturbed her vacation.
During Campbell's absence for back surgery other Gambro employees for neighboring clinics covered
her inventory and secretarial duties. Major inventory problems were discovered, most notably an
inventory discrepancy between the database and the physical stock in the amount of $6,500. Her
secretarial performance was similarly bad, particularly the discovery of several thousands sheets of
old patent records piled in an office in violation of company policy requiring prompt filing.
Returning to work after her back surgery, she learned that PCT hours had been decreased from 24 to
21, that she had been relieved of her secretarial and inventory duties, and she was served with a
corrective action form for not calling in on the day following her injury.
In the district court the trial judge granted Gambro's motion for summary judgment on her interference
claim because the adverse employment action came after her FMLA leave ended and she had been
reinstated. That left her retaliation claim to be tried.
On appeal, that court disagreed with the trial court because:
To hold otherwise would create a perverse incentive for employers to make the decision to terminate
during an employee's FMLA leave, but allow the employee to return for a brief period before
terminating her so as to insulate the employer from an interference claim.
So, because Gambro's decision to fire Campbell was based on factors before she returned to work,
she was allowed to proceed with her interference claim.
Despite all of this, the appellate ultimately rejected her claim because the decision to terminate was
found to have been actually based on Campbell's performance deficiencies. There was no evidence
to dispute the decreasing number of patients and the proof of her deficient employment performance.
Disclosures: inquiries from prospective employers, consent, releases, immunity, good faith, qualified
immunity, public safety, public policy encouraging full and accurate disclosure, potential liability to
third parties for not disclosing danger
How much information a former employer should disclose in response to an inquiry from a
perspective employer is usually a difficult decision to make. Often the response is typically brief: date
of start of employment and date of end of employment. What about negative information that ought to
be disclosed to in the interest of public safety, such us medical facilities, police matters, etc.? In this
case, one healthcare facility inquired of another about the work history of an applicant for a position
as physician's assistant. Keep in mind, also, that a third party, such as a patient, may also have an
interest in the competence of a healthcare employee and might sue the former employer for failing or
refusing to disclose unfavorable or questionable information that might have saved the patient from
harm or injury.
This NM court of Appeals case is controlling law in our jurisdiction (the NM Supreme Court reviewed it
and decided it need not modify it). This opinion is not as strong as many employers would like it to be,
but it goes a long way in declaring a strong public policy in favor disclosure. As much as employers
would probably like to have absolute immunity about release of information about former employees,
that may never happen in NM based on past cases, the reference immunity statute (1978 NMSA, §
50-12-1), and other precedents that to the effect that one's negligence cannot be protected by a total
release from liability. For your information:
§ 50-12-1. Employer immunity from liability for references on former employee
When requested to provide a reference on a former or current employee, an employer acting in good
faith is immune from liability for comments about the former employee's job performance. The
immunity shall not apply when the reference information supplied was knowingly false or deliberately
misleading, was rendered with malicious purpose or violated any civil rights of the former employee.
One factor to bear in mind when deciding whether or not to disclose information is potential liability
claims from third parties, such as patents in a medical situation, who might be harmed by a former
employer failing or refusing to disclose that a former employee may be dangerous or harmful.
DiMarco v. Presbyterian Healthcare Services, Inc., 2007-NMCA-053, cert. denied, No. 30,326, May 2,
2007; /opinions/VIEW/07ca-053.html
Vincent P. DiMarco had worked for Presbyterian Healthcare Services, Inc., (Pres) as a physician's
assistant from 1998 to 2000, when he resigned in September. During his application process with
Pres, DiMarco signed four forms authorizing release of information about his employment. Three of
the releases discharged liability with no limitation, the fourth limited disclosures to those made in good
faith. Presbyterian contended the releases allowed unconditional disclosure, but this opinion took the
narrow approach that an employer at least is conditionally immune from liability from disclosure as
long as it is accurate and made in good faith. "Conditionally" means that if the disclosure is inaccurate
and/or made in bad faith, then the employer may be liable for inaccuracies [Note: This means that
investigations of allegedly deficient performance need to be through, fair, and accurate.].
When DiMarco applied to Gerald Champion Regional Medical Center (GCRMC), it faxed to Pres the
Good faith release form, and the medical staff coordinator confirmed dates of DiMarco's employment
but declined to answer specific questions about his performance at Pres [which is the typical
response these days]. After DiMarco, his wife, and GCRMC request Pres to provide more information,
the regional medical director for Pres completed GCRMC's evaluation form by answering specific
questions, and some of the answers reflected negatively on DiMarco's work history. Consequently,
DiMarco was not hired, and DiMarco began legal action.
Ultimately, the issue in the case was whether the disclosures were made in good faith. DiMarco
contend they were not, and Pres contended they were.
[Note: At this point, it is important to discuss the procedural status of the case. Pres moved for
summary judgment, and the trial court granted that motion, i.e., case dismissed without trial.
Summary judgment procedure requires a party opposing the motion to sufficiently rebut the evidence
of the party moving for summary judgment, and DiMarco failed to do that. If he had succeeded, then
the next step would have been trial and even though he might have presented enough evidence to
avoid summary judgment, and that is a pretty low standard, the amount of proof to convince a jury
that he was right and that Pres was wrong, i.e., had not acted in good faith, might not have been
strong enough for him to win. However, the implication of that is that Pres would have additional
expense of a full scale trial. This is why investigations of allegedly deficient performance need to be
through, fair, and accurate. As a practical matter, if an employer's proof is strong from the very start,
the case may never be accepted by an attorney - there are no guarantees, but that is a factor to
consider.]
The opinion points out that conditional or qualified privilege and immunity for disclosures is the law in
this state:
{10} We begin by assuming, but not deciding, that Presbyterian's disclosures are protected only if
made in good faith and that, accordingly, Presbyterian's privilege is conditional, subject to forfeiture if
the privilege is abused. Baker v. Bhajan, 117 N.M. 278, 283, 871 P.2d 374, 379 (1994) ("A conditional
or qualified privilege will be lost if it is abused."); Bookout v. Griffin, 97 N.M. 336, 339, 639 P.2d 1190,
1193 (1982) ("[Q]ualified privilege exists where there is a good faith publication in the discharge of a
public or private duty."); see, e.g., Williams v. Bd. of County Comm'rs, 1998-NMCA-090, 22, 125 N.M.
445, 963 P.2d 522 (assuming without deciding for purposes of the discussion). At common law, a
former employer is conditionally privileged when it provides information about a former employee to
another person who has an interest in the subject matter of the information. Gengler, 92 N.M. at 467,
589 P.2d at 1058. In our case, Presbyterian clearly has a conditional privilege-at common law, under
the terms of the good faith release, and pursuant to Section 50-12-1. Id. ("When requested to provide
a reference on a former or current employee, an employer acting in good faith is immune from liability
for comments about the former employee's job performance.").
{11} DiMarco contends that Presbyterian abused its privilege because Presbyterian lied and distorted
the facts regarding DiMarco's work history in order to punish him for speaking out about alleged
problems in the management of Presbyterian's emergency room and for filing the first lawsuit. A
plaintiff has the burden of proving that a defendant has abused its conditional privilege. See Gengler,
92 N.M. at 468, 589 P.2d at 1059. An employer abuses its privilege if it lacks belief or reasonable
grounds for belief in the truth of the information disclosed; if it provides information for an improper
use; if it provides information to a person unnecessary for the accomplishment of the purpose; or if it
provides information beyond the scope reasonably necessary to accomplish the purpose. See id.
***
{15} . . . "[P]ublic policy supports full and accurate disclosure of non-confidential information by
employers, and we seek to encourage employers in that direction." Davis, 1999-NMCA-110, 28; see
also Robert S. Adler & Ellen R. Peirce, Encouraging Employers to Abandon Their "No Comment"
Policies Regarding Job References: A Reform Proposal, 53 Wash. & Lee L. Rev. 1381, 1427 (1996)
(stating that the "widespread withholding of critical reference information" affects economic efficiency
and presents difficulties in addressing the safety of employers, employees, and the public); Markita D.
Cooper, Beyond Name, Rank and Serial Number: "No Comment" Job Reference Policies, Violent
Employees and the Need for Disclosure-Shield Legislation, 5 Va. J. Soc. Pol'y & L. 287, 296-97
(1998); Alex B. Long, Note, Addressing the Cloud Over Employee References: A Survey of Recently
Enacted State Legislation, 39 Wm. & Mary L. Rev. 177, 194-95 (1997). Moreover, as discussed more
fully in paragraph 16, Presbyterian has a duty of care to third parties who could be physically injured
by a former employee if information provided in a reference is a negligent misrepresentation of the
employee's work history. Davis, 1999-NMCA-110, 21-22. In light of public policy supporting full and
accurate disclosure and of the Davis duty imposed on employers, we conclude that DiMarco cannot
rely on the differences between his evaluation form and the evaluation forms of other employees to
prove Presbyterian did not act in good faith when the disclosures made on DiMarco's evaluation form
were truthful. Cf. id. 31 ("[T]he policy gains of imposing a duty not to misrepresent under these limited
circumstances outweigh the potential consequences of inhibiting employer disclosure.").
***
{16} . . . This Court concluded in Davis that "employers who do not remain silent . . . owe [a] duty of
reasonable care in regard to what they say and how they say it" when there is "a substantial,
foreseeable risk of physical harm to third parties by the employee." Id. 13; see also id. 18-19 (stating
that the rule of negligent misrepresentation involving physical harm "extends to anyone undertaking to
give information to a person who knows or should realize that the safety of the person of others may
depend upon the accuracy of the information" (internal quotation marks and citation omitted)).
Similarly to police officers, emergency room physicians' assistants serve in sensitive positions; they
are accountable for decisions that affect the health of the public.
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Human resources & employment law cumulative case

HUMAN RESOURCES & EMPLOYMENT LAW

CUMULATIVE CASE BRIEFS AND NOTES

Robert A. Martin, J.D.

Updated on June 30, 2011

Don't print it because it is very large and is meant to be searched electronically on a

completeness or accuracy of these materials. No legal opinions are either expressly or

Recommended additional resources to check out:

- Employment Law Information Network: /

- Society for Human Resource Management: /

- Human Resources Management Association of New Mexico: /

1. Summary by the Court of Appeals:

2. Brief factual background:

Complaints to appropriate authorities were only weakly responded to by them.

The applicable law is:

Summary Judgment: no exception or lower burden of proof for discrimination cases

Company anti-harassment policy directed employees to report harassment either to a "supervisor or

Illustrative; not controlling law:

Washington Employers Claim Victory In Medical Marijuana Battle

Here are the differences:

state misdemeanor crime for an alien to be in Arizona without carrying the

bars state or local officials or agencies from restricting enforcement of federal

Description of the 2007 act:

Prohibits Arizona employers from knowingly or intentionally employing individuals

U.S. Supreme Court Decision on the 2007 law:

SOX: Sarbanes-Oxley, Whistleblower Protection Act (WPA), disclosure of wrongdoing, recipients

1. federal regulatory and law enforcement agencies;

2. members of Congress; and

2. working at high altitudes was an essential function of Miller’s job; and

It did not address the issue of whether Miller was “disabled.”

The employing agency may require:

statement as to the incapacitation, examination, or treatment that may be required by a

Discussion by our 10th Circuit court of Appeals:

1. an employee currently in covered employment,

2. an employee reasonably expected to be in covered employment,

3. a former employee with a reasonable expectation of returning to covered employment, or

showing – of a right to recover).

1. he engaged in protected opposition to discrimination,

Controlling law. This case is of interest primarily to litigation attorneys.

The evidentiary process is:

CFAA: not intended as a basis to dismiss for poor performance

judgment on a legal issue.

Norton v. Assisted Living Concepts Inc., No. 4:2010cv00091 (U.S.D.C.E.D.TX, 5/13/11);

Here are the operative facts:

He left on medical leave for surgery,

returned to work on July 1, 2009, and

on August 5, 2009, he was fired.

2. it did not matter if the plaintiff's cancer was in remission, and

Title VII: discrimination, decisionmaker, racial animus, retaliation, termination

520 pp.2nd 483 (2007); /scholar_case?

508 pp.2nd 252 (2007); /scholar_case?

438 pp.2nd 348 (2006); /scholar_case?

However, it let other issues remain for trial.

2. threatening and inappropriate communications with co-workers,

3. misuse of court resources, and

Consequently, the FAA preempted the California rule.

Controlling law: Summary by the NM Court of Appeals:

FMLA: past claims may be settled, but not future ones

Affirming the district court's order: