Whalen v. J.P. Morgan Chase (2nd Cir 11/20/2009) Whalen sued the employer for violation of the overtime requirements of the Fair Labor Standards Act (FLSA). The trial court granted the employer's motion for summary judgment. The 2nd Circuit reversed.

The issue was whether underwriters tasked with approving loans, in accordance with detailed guidelines provided by the employer, were administrative employees exempt from the overtime requirements of the FLSA. 29 CFR section 541.2(a) provided (pre-2004) that a worker was employed in a bona fide administrative capacity if he performed work "directly related to management policies or general business operations" and "customarily and regularly exercises discretion and independent judgment." With underwriters informally categorized as "production," occasionally paid incentives to increase production (based on the number of decisions underwriters made), and following the detailed directions of the credit guide; the court concluded that the job of underwriter at this employer fell under the category of production rather than administrative work. The court held that Whalen did not perform work directly related to management policies or general business operations and, thus, was not an administrative employee.

Scruggs v. Garst Seed Co (7th Cir 11/20/2009) Scruggs sued the employer for violation of Title VII alleging retaliation, hostile work environment, and gender discrimination. The trial court granted the employer's motion for summary judgment. The 7th Circuit affirmed.

Scruggs's position was eliminated and she was not hired for a new position. In response to the retaliation claim, the employer argued that Scruggs's position was eliminated as part of a company restructuring and that it selected someone else for the new position because that person was better qualified. The court found that the employer made the decision to restructure before Scruggs filed her Equal Employment Opportunity Commission (EEOC) complaint and that Scruggs lacked a Bachelor of Science degree and experience in genetics required for the new position. Because Scruggs could not show that the environment was objectively severe or pervasive, the court concluded summary judgment was appropriate for the hostile work environment claim.

Fleming v. Yuma Reg Med Cntr (9th Cir 11/19/2009) As a matter of first impression, the 9th Circuit held that Section 504 of the Rehabilitation Act applies to independent contractors just as it does to employees. Section 504(d) refers to "the standards applied under title I of the Americans with Disabilities Act ... as such sections relate to employment." If Title I of the ADA is incorporated literally, then the Rehabilitation Act (like Title I) applies only to employer-employee relationships. The court declined to adhere to such an interpretation, concluding instead that Title I is incorporated selectively. The court noted that the 10th Circuit has come to the same conclusion, while the 6th and 8th Circuits have arrived at a contrary conclusion.

Barboza v. West Coast Digital (California Ct App 11/19/2009) Employees obtained a default judgment for more than $4 million in this wage and hour class action. Employees' class counsel learned that the employer had ceased operations, sold its assets to a third party, and intended to file for bankruptcy. Class counsel asserted that he had no obligation to try to enforce the judgment, and that his representation was concluded upon entry of the judgment. The trial court disagreed, determining that class counsel had an obligation to the class to attempt to enforce the judgment. The court affirmed, concluding "we agree that class counsel's obligations to the class do not end with the entry of judgment, and hold that class counsel's obligations continue until all class issues are resolved, which may include enforcement of the judgment." The court reasoned, "[i]t may be that, given the specialized knowledge needed to enforce judgments, class counsel is not competent to provide enforcement services without assistance. But nothing prevents class counsel from associating in counsel with that expertise, and the cost of that association can be paid by the class from any recovery achieved."

Santi v. Univ of Texas (Texas Ct App 11/19/2009) Santi sued the public employer, asserting Texas Commission on Human Rights Act (TCHRA) claims for gender discrimination and retaliation. The trial court granted the employer's "plea to the jurisdiction." The court affirmed, concluding that critical elements of Santi's claims did not fall within the scope of the discrimination charge she filed with the Equal Employment Opportunities Commission (EEOC).

Mensa-Wilmot v. Smith Intl Inc (Texas Ct App 11/19/2009) Mensa-Wilmot sued the employer, asserting a claim for breach of contract (stock option agreement). The trial court granted summary judgment in favor of the employer. The court affirmed, concluding that Mensa-Wilmot produced insufficient evidence that he exercised his stock options in the manner required under the terms of the employer's stock option agreement.

Cobbs v. SEPTA (Pennsylvania Superior Ct 11/18/2009) Cobbs sued the employer, asserting (among other things) a race discrimination (failure to hire) claim under the Pennsylvania Human Relations Act (PHRA). The trial court granted judgment on the pleadings in the employer's favor. The court affirmed, agreeing with the trial court's determination that it lacked jurisdiction to consider Cobbs' claims. The court reasoned that Cobbs' complaint essentially sought review of the Pennsylvania Human Relations Commission's (PHRC's) determination against him, and that "review of an adjudication by the PHRC is within the exclusive province of the Commonwealth Court." The decision appealed from was rendered by the Court of Common Pleas – not the Commonwealth Court.

Lynn v. McKinley Ground Transport (Ohio Ct App 11/16/2009) Lynn sued the employer, asserting claims for violation of Ohio's whistleblower statute, wrongful discharge in violation of public policy, interference with business/contractual relationship, intentional infliction of emotional distress, and defamation. The employer moved to stay proceedings pending arbitration. The trial court denied the motion, based on its determination that the employer's arbitration agreement was unconscionable and unenforceable. The court reversed in part. The court concluded that 1) the claims for interference with business/contractual relationship and defamation were not subject to the arbitration agreement, and the trial court did not err as to those claims; and 2) the arbitration agreement was not unconscionable, so the trial court erred with respect to the remaining claims. The court noted that the only factor supporting a finding of unconscionability was the absence of a time limit for bringing claims.

Epiq Class Action v. Prutsman (US Dist Ct, Oregon 11/13/2009) James Prutman worked for Poorman-Douglas on the information technology team, and then signed a non-competition agreement when he moved into sales. When Poorman-Douglas merged with Epiq Systems, Prutman signed a new non-competition agreement. Epiq sued Prutman and his new employer to enforce the second agreement.

An Oregon statute makes a non-competition agreement unenforceable unless it is entered into upon (a) initial employment, or (b) subsequent bona fide advancement. The United States District Court for Oregon found that the first agreement was valid as a bona fide advancement, that the second agreement merged and invalidated the first, and that the second was enforceable. Although the second agreement did not fit either the "advancement" or "initial employment" portions of the statute, it was consistent with the policy of the statute - avoidance of surprise and coercion.

Howick v. Salt Lake City Emp Apps Bd (Utah Ct App 11/19/2009) Howick petitioned for review of a municipal employee appeals board's decision that it lacked jurisdiction to hear her appeal, based on its determination that she was an at-will employee. The court stayed further consideration pending a trial court decision (via declaratory judgment action) whether Howick is employed at-will. The court noted that, if Howick is determined to be a "merit employee" rather than an employee at-will, the board will be the proper forum to determine the propriety of her discharge.

Matter of Golinski (9th Cir 11/19/2009) Golinski, a female 9th Circuit staff attorney, is married to a woman, and seeks to have her wife covered by her health insurance policy. After a 9th Circuit judge ordered the Administrative Office of the United States Courts to submit the proper application form to her insurance carrier, the Office of Personnel Management directed the carrier not to process the form.

The 9th Circuit judge entered a new order: (1) Golinski is entitled to be paid the amount that she would have paid for equivalent coverage (which is allowed under the federal Back Pay Act), (2) the Office of Personnel Management shall rescind its previous directive to Golinski's carrier and "shall cease at once its interference with the jurisdiction of this tribunal," and (3) Golinski's carrier shall enroll her wife without regard to her sex or sexual orientation.

Wolfgang v. Ohio Pub Emps Ret Sys (Ohio Ct App 11/17/2009) Wolfgang petitioned for a writ of mandamus, seeking to compel the Ohio Public Employees Retirement System (OPERS) and Ohio School Employees Retirement System (SERS) to reinstate his disability status. The trial court denied the writ. The court affirmed. Wolfgang was not eligible for disability benefits under either OPERS or SERS singly. However, he was entitled to a combined disability benefit pursuant to combined disability provisions and coordinating benefits statutes. R.C. 3309.35; R.C. 145.37; and R.C. 3307.57. Wolfgang argued that the determination whether he was disabled should be measured against the job under which he accrued the most service credit, rather than his most recent job. The court disagreed, concluding that "in the combined disability context the intent of the legislature was for both systems to base the combined disability benefit on the most recently held position...."

State ex rel Crumbley v. City of Cleveland (Ohio Ct App 11/13/2009) Crumbley sought a writ of mandamus ordering the employer to pay back pay awarded from an arbitration. After a hearing, the Ohio Court of Appeals granted mandamus. The court found that Crumbley had a clear legal right to back pay, that the employer had a clear legal duty to pay him the back pay for the time period he was discharged, and that Crumbley did not have an adequate remedy at law. The court reduced the amount of back pay for interim earnings.

Martin v. CSX Transport (Ohio Ct App 11/17/2009) Martin sued the employer, asserting claims under the Federal Employers' Liability Act (FELA) related to injuries suffered while repairing signals and switches near railroad tracks. Martin prevailed after a jury trial, and was awarded substantial damages. The court reversed in part, concluding that Martin produced insufficient evidence to get to a jury on the issue of future damages. The court reasoned, "the evidence on the issue of whether Martin's injuries are permanent in nature was not sufficient to support an instruction to the jury on future wage loss."

Cox v. Oasis Phys Therapy (Washington Ct App 11/17/2009) Cox sued the employer, asserting (among other things) Washington Law Against Discrimination (WLAD) claims for gender-based discriminatory discharge, gender-based hostile environment discrimination, and retaliatory discharge. She also asserted common law claims for negligent hiring, negligent retention, negligent supervision, negligent infliction of emotional distress, intentional infliction of emotional distress, outrage, medical negligence, and assault and battery. Her claims arose from her term of employment at a physical therapy office and the course of her treatment as a patient there. The trial court dismissed all claims as time-barred. The court affirmed as to the WLAD discharge-related claims, as well as the claims for medical negligence, assault and battery, and wrongful discharge, and reversed as to the remaining claims. With respect to reversal, the court concluded that 1) Cox's negligent supervision and negligent retention claims were filed within the applicable three-year limitations period; 2) Cox's claims for emotional distress and outrage were not entirely time-barred; and 3) to the extent they did not rely on Cox's discharge, a genuine issue of fact existed as to whether Cox's WLAD claims were timely filed under Antonius v. King County, 103 P.3d 729 (2004) (adopting the United States Supreme Court's analysis in National Railroad Passenger Corporation v. Morgan, 536 US 101 (2002)).

EEOC v. UPS Inc (2nd Cir 11/19/2009) The Equal Employment Opportunity Commission (EEOC) sought enforcement of an administrative subpoena requesting the employer provide information about how religious exemptions to the appearance guidelines were handled nationwide. The trial court denied enforcement of the subpoena. The 2nd Circuit reversed.

The EEOC was investigating the denial of two driver positions, one in New York and one in Texas, where both applicants were told drivers could not have beards and were not informed of the religious exemption. The court rejected the employer's argument that the two charges failed to justify nationwide discovery; stating that the EEOC, at the investigatory stage, was not required to show that there was probable cause to believe discrimination occurred or to produce evidence to establish a prima facie case of discrimination. The court concluded that the trial court's determination that nationwide information was not relevant to the charges was clearly erroneous. The CONCURRENCE argued that the appellate standard of relevance was as a matter of law.

Swink v. Greater Cleveland Transit (Ohio Ct App 11/19/2009) Swink sued claiming he was constructively discharged in violation of public policy. The trial court granted summary judgment for the employer; the Ohio Court of Appeals affirmed.

After the employer let a construction contract, the winning bidder requested permission to install equipment that did not comply with the contract. Swink's supervisor told him not to challenge the request, but Swink disobeyed. Later, the employer charged Swink with taking some property without permission. Swink's supervisor recommended discharge; a manager told Swink he could resign, and he did.

The court found that Swink was constructively discharged because he resigned at his manager's suggestion at a time when his discharge was imminent. However, this discharge did not violate public policy. Swink showed no connection between his discharge and the statutory competitive bidding process; the bidding was competitive and the lowest bidder won. Also, an alternative statutory remedy exists; a wronged bidder can protest and bring suit.

The DISSENT argued that evidence of post-contract pressures to change the contract indicated that Swink might have been discharged for insisting on adhering to the contract specifications.

Doe v. Medford Sch Dist (Oregon Ct App 11/18/2009) Doe is a public school teacher who is licensed to carry a concealed handgun, and wishes to carry her handgun with her at all times. The school district has a policy prohibiting its employees from possessing firearms while on school property. Doe sued for a declaratory judgment challenging the lawfulness of the district's policy, arguing that such a policy is preempted by state statute.

The state statute states that the authority to "regulate" firearms is vested solely in the legislature, and states that no municipal corporation or district may "enact civil or criminal ordinances" to regulate possession of firearms.

The Oregon Court of Appeals held in favor of the school district, finding that its no-firearms policy is not preempted. The court said that the district's internal employment policy is not the sort of "ordinance" that the statute prohibits, because it is not "the type of 'ordinance' that governmental entities enact in their legislative capacities." Also, the court said that the statutory term "regulate" was used in its narrow sense of "acting in their 'organic authority as a governmental entity,'" and does not reach "such things as internal employment policies and management directives."

Cell Therapeutics v. Lash Group (9th Cir 11/18/2009) Before settlement of a False Claims Act (FCA) suit, Cell Therapeutics Inc (CTI) sued Lash for: (1) declaratory relief and indemnification for the FCA suit, (2) breach of service agreement, (3) breach of a contractual indemnification clause, (4) breach of the implied warranty of good faith and fair dealing, and (5) negligence. The trial court granted Lash's motion for judgment on the pleadings. The 9th Circuit reversed.

The issue on appeal was whether, after settlement of an FCA suit, the defendant could seek recovery against a third party for contractual indemnity and independent claims. The court found that the claims for breach of service contract, breach of good faith and fair dealing, and negligence were independent claims which did not only have the effect of offsetting liability in the FCA action.

The court concluded that the trial court erred in characterizing the settlement as establishing FCA liability and barring claims against Lash: (1) settlements did not bar claims against non-parties or have preclusive effect on the subsequent litigation of issues not expressly resolved in the settlement, and (2) the presumption that a settlement was equivalent to a finding of liability would chill the settlement process, particularly where the settlement agreement contained an express disclaimer of liability.

Matter of Levenson (9th Cir 11/18/2009) Levenson, a deputy federal pubic defender, married his same-sex partner at a time when same-sex marriage was lawful in California. His request to add his husband as a family member beneficiary of his federal benefits (health, dental, vision) was denied due to prohibitions in the federal Defense of Marriage Act. He brought a claim under the 9th Circuit's Employment Dispute resolution Plan for Federal Public Defenders, asking for an order directing the Federal Public Defender to either enroll his husband in a private insurance plan or provide a monetary award.

Previously, a 9th Circuit judge found that denial of benefits on the ground that Levenson and his husband were of the same sex was a violation of the 9th Circuit's Plan and of the due process clause. The judge reiterated and elaborated on that previous finding. The judge denied Levenson's request for a directive to enroll his spouse in a private plan, and ordered that the Federal Public Defender pay him the amount that he would have paid for equivalent coverage. This award is in the nature of a back pay award under the federal Back Pay Act.

Bandak v. Eli Lilly (7th Cir 11/18/2009) Bandak sued the employer for violation of ERISA alleging the employer improperly denied retirement benefits under the employer's English affiliate's retirement plan. The trial court found in favor of Bandak awarding $100,222.86 in damages and enjoining the employer from offsetting future retirement benefits by amounts paid under the English affiliate's retirement plan. The 7th Circuit affirmed.

Bandak worked for the English affiliate from 1978 to 1995 and was enrolled in its pension plan. Upon Bandak's 1995 transfer to the United States, the employer provided written notice that his enrollment in the U.S. affiliate's retirement plan would be retroactive to 1978. The 1995 retirement plan provided that an employee's retirement benefits "shall be reduced by the Actuarial Equivalent of any benefit payable to such a person under a qualified defined benefit plan maintained by" an affiliated employer. The plan administrator decided the English affiliate's pension plan was a "qualified defined benefit plan" and denied benefits under the English affiliate's pension plan.

The court noted that the reference to a "qualified defined benefit plan" was an American legal term that meant a plan approved by the IRS, which did not cover English pension plans. The court found the 1997 amendment to the U.S. affiliate's plan implicated a belief that without the amendment person's in Bandak's situation would also have been able to double dip (receive both a foreign pension and the U.S. pension). Considering the chairman of the board of directors was concerned about retirement costs, the employer's disingenuous arguments, failure to identify anyone in Bandak's position who had been denied service credit with a foreign affiliate, and the barrenness of the record regarding the English plan and English tax law, the court concluded the entitlement to deference was diminished by indications that the conflict of interest inherent when benefits determination were made by a plan funded by the employer had infected the plan administrator's consideration of Bandak's application for retirement benefits. Marrs v. Motoralo Inc., 577 F3d 783, 789 (7th Cir 2009).

Miami-Dade County v. Transport Worker's Union (Florida Ct App 11/18/2009) The County and the union negotiated for several months toward a new collective bargaining agreement. The parties reached impasse, and the County initiated statutory impasse resolution proceedings. After a hearing was scheduled before a special master, the union filed an unfair labor practice charge claiming that the County had not bargained sufficiently. Based on that charge, the Florida Public Employees Relations Commission (PERC) issued a stay of the impasse resolution proceedings.

The Florida Court of Appeal vacated the stay, finding that there was no support in the record for PERC's finding that immediate resolution of the impasse is not critical.

State ex rel Conroy v. Williams (Ohio Ct App 11/13/2009) Conroy petitioned for writ of mandamus, seeking to compel the municipal employer to appoint him to the position of police officer. The trial court denied various individuals' summary judgment motions, which were based on their claims to "political subdivision immunity." The court affirmed as to one individual defendant on the basis that "[his] actions may constitute discrimination in violation of Ohio statutory law." The court reversed as to another individual defendant, on the basis that Conroy produced insufficient evidence "of discriminatory or other conduct" by him. The court affirmed as to the remaining individual defendants, based on the determination that their summary judgment motions should have been denied as moot because Conroy was not seeking to hold them personally liable for his alleged damages.

Overstreet v. Underwood (Texas Ct App 11/16/2009) The court denied a petition for rehearing, but withdrew its opinion previously published on September 11, 2009 and substituted this opinion in its place.

Texas Labor Code Section 21.254 grants an employee the right to sue within sixty days of the day she receives her right-to-sue letter from the Texas Workforce Commission. The court held that compliance with this sixty day limitations period is a jurisdictional prerequisite to filing suit under the Texas Commission on Human Rights Act (TCHRA).

Brown v. J.B. Hunt Transport (8th Cir 11/17/2009) Brown sued the employer and the insurer of its employee welfare benefits plan, asserting a claim under the Employee Retirement Income Security Act (ERISA) challenging the decision to terminate her long-term disability benefits. She asserted another claim against both defendants, seeking penalties under 29 USC Section 1132(c) for failure to provide requested information. The trial court granted summary judgment against Brown on both claims. The 8th Circuit reversed as to the first claim, but affirmed as to the second. With respect to reversal, the court concluded that the plan's failure to provide information to Brown deprived her of a "reasonable opportunity for full and fair review." The court thus excused Brown's failure to exhaust administrative remedies, and remanded with instructions to the trial court to remand the case to the insurer for consideration of a tardy appeal.

Windross v. Barton Protective Services (1st Cir 11/17/2009) Windross sued the employer, asserting (among other things) a state law race discrimination (disparate treatment) claim. The trial court granted summary judgment in favor of the employer. The 1st Circuit affirmed, concluding that 1) some of Windross' allegations were time-barred; and 2) Windross produced insufficient evidence of pretext in support of his remaining allegations. The court rejected the argument that Windross' time-barred allegations were subject to the continuing violation doctrine.

Couch v. Memorial Hospital (10th Cir 11/17/2009) Couch, a doctor, sued the employer, a county hospital, for instituting a campaign of retaliation against him for advocating random drug and alcohol testing in violation of his First Amendment free speech rights. The trial court granted the employer's motion for summary judgment. The 10th Circuit affirmed.

The court resolved the case based on the fourth prong and the fifth prong of the Garcetti/Pickering analysis. The court concluded that Couch failed to establish the fourth prong that his speech was a substantial factor or motivating factor in an adverse employment action. The court found the specific actions of the employer, (requiring that Couch take corrective actions and additional training, failing to reappoint Couch to a medical staff committee, and submitting to an evaluation by an agreed-upon psychiatrist), would not deter a reasonable person from exercising his First Amendment rights. Under the fifth prong, the court found the employer established that it would have taken the same actions against Couch even in the absence of his speech.

Roemer v. Cuomo (New York App Div 11/12/2009) The New York Appellate Division upheld the trial court's denial of a motion to quash a subpoena in an investigation of possible fraud in the receipt of public pension benefits. The New York Attorney General is investigating whether attorney James Roemer improperly receives public pension benefits. Roemer was listed as an employee for school districts and local governments, while maintaining a private law practice. The Attorney General issued a subpoena to Roemer seeking information that could clarify his status as an employee or independent contractor. The subpoena sought information relating to work for local governments performed by Roemer and also by his law firms.

The court rejected Roemer's arguments that the subpoena was outside the Attorney General's authority, unsupported by a factual basis, and overly broad.

Hogan v. Cuomo (New York App Div 11/12/2009) The New York Appellate Division upheld the trial court's denial of a motion to quash a subpoena in an investigation of possible fraud in the receipt of public pension benefits. The New York Attorney General is investigating whether attorney John Hogan improperly receives public pension benefits. Hogan was listed as an employee for as many as six school districts at the same time, while maintaining a private law practice. The Attorney General issued a subpoena to Hogan seeking information that could clarify his status as an employee or independent contractor. The subpoena sought Hogan's billing records, tax statements, and information concerning salary and benefits related to his services for school districts.

The court rejected Hogan's arguments that the subpoena was outside the Attorney General's authority, unsupported by a factual basis, and overly broad.

O'Neal v. City of Chicago (7th Cir 11/17/2009) O'Neal sued the public employer, asserting (among other things) a Title VII claim for retaliation. The trial court granted summary judgment in favor of the employer. The 7th Circuit affirmed, concluding that O'Neal produced insufficient evidence of causation under both the direct and indirect methods of proof. The court noted that O'Neal's complaint listed ten adverse employment actions, but that only two fell within the applicable 300-day limitations period (for deferral states) under Title VII.

Mangano v. Verity Inc (California Ct App 11/16/2009) Mangano sued the employer, asserting a retaliation claim under California's Fair Employment and Housing Act (FEHA). The employer prevailed after a jury trial. The court affirmed, concluding that the trial court didn't err in granting the employer's motions in limine to exclude certain evidence. Mangano alleged that he was discharged in retaliation for bringing an earlier suit for disability discrimination. The court concluded that the trial court properly excluded evidence of Mangano's disability and the employer's alleged discriminatory acts regarding that disability.

Lueck v. Texas DOT (Texas Ct App 11/13/2009) An employee asserting a claim under the Texas Commission on Human Rights Act (TCHRA) must first exhaust his administrative remedies. This is accomplished by filing a discrimination charge with the Texas Workforce Commission within 180 days of the alleged discriminatory action. Texas Labor Code Section 21.202(a). The court held that this requirement is jurisdictional. The court reasoned, "we construe section 21.202 as a mandatory exhaustion-of-administrative-remedies requirement and therefore adopt the jurisdictional holdings in [Specialty Retailers, Inc. v. Demoranville, 933 SW2d 490 (Tex. 1996), and Schroeder v. Texas Iron Works, Inc., 813 SW2d 483 (Tex. 1991)] ...."

Corey Airport Services v. Decosta (11th Cir 11/16/2009) Corey Airport Services sued a number of employee-managers of the City of Atlanta in their individual capacities. The claim was that the managers violated the equal protection clause in the way that they awarded a contract to manage advertising displays. Specifically, the claim was that the managers discriminated between "political insiders" and "political outsiders." The trial court denied the managers' motion for summary judgment, holding that they were not entitled to qualified immunity. The 11th Circuit reversed.

The 11th Circuit held that the managers, assuming there was a constitutional violation, were entitled to qualified immunity because there was no violation of a clearly established constitutional right. The claim was that the managers applied facially neutral procurement laws and policies with the intent to discriminate against Corey - a political outsider. The court found that the circumstances involved in existing case law differed from the present case and that cases cited did not find a constitutional violation. Therefore, the managers had no fair warning that their action was unconstitutional.

Longaberger Co v. Kolt (6th Cir 11/16/2009) After an ERISA plan paid medical bills for a beneficiary's dependent's personal injuries, the beneficiary recovered funds in settlement of a tort action. The beneficiary's lawyer put these funds into his trust account and then disbursed the bulk of them to the beneficiary and to himself. The Plan sued the lawyer and the beneficiary seeking reimbursement. The trial court granted summary judgment for the Plan. The lawyer appealed, and the 6th Circuit affirmed.

The 6th Circuit held that the Plan was entitled to equitable restitution of the funds that were disbursed to the lawyer. The Plan document contained a detailed subrogation and reimbursement provision which granted the Plan a first priority lien on settlements obtained from third parties. The lawyer argued that the Plan's claim was "legal" rather than "equitable" because the funds had been disbursed before the Plan filed suit, and therefore there was no identifiable fund in the lawyer's possession. The court held that an equitable lien attached as soon as the settlement proceeds were received, and that tracing of the funds after that date was unnecessary. The court also rejected the lawyer's argument that his state-law attorney charging lien took priority over the Plan's lien, finding it to be preempted.

AFSCME v. Florida Dept Corr (Florida Ct App 11/13/2009) The union appealed the decision of the trial court vacating and declining to enforce an arbitration award. The Florida Court of Appeal reversed.

The arbitrator entered a clarification award for retroactive health insurance coverage with premiums to be deducted at a rate not to exceed $50.00 per month. The union argued that the trial court erred in concluding that: (1) the union had a duty to exhaust administrative remedies before pursuing the grievance; (2) the Department of Management Services suffered procedural unfairness; and (3) the final arbitration award exceeded the scope of the grievance (and the scope of the initial award) and contravened the "powers, duties and responsibilities of the state under applicable law or rules." The court found that: (1) the collective bargaining agreement (CBA) contained no "exhaustion of administrative remedies" requirement and the grievance procedure was available in lieu of judicial or administrative procedures; (2) the CBA grievance procedures contemplated that an employee and union would deal with the employing agency, including with regard to matters of insurance for retired and dismissed employees; and (3) the trial court did not give appropriate deference to the arbitrator's findings, where the arbitrator had full authority to determine an appropriate remedy when an employee was discharged in violation of the CBA.

The DISSENT argued that in awarding the employee the right to have his long expired health insurance reinstated, without requiring him to pay past premiums, the arbitrator exceeded his authority and entered an order beyond the scope of the arbitration.

St. Johns Investment v. Albaneze (Florida Ct App 11/13/2009) Albaneze sought a declaratory judgment regarding his rights under the employment agreement. The trial court denied the employer's motion for a temporary injunction for enforcement of noncompete provisions. The Florida Court of Appeal reversed.

The four-year employment agreement provided that in the event Albaneze is employed by the employer throughout the term, the noncompete period shall be " ... twenty-four (24) months following the date the Employee resigns ... or Employee is terminated by Employer; ... ." Albaneze resigned about two years after the four year term of the contract ended without a subsequent written contract. The trial court held that the contract failed to include express language that the noncompete covenants survived the expiration of the four year term. Because the contract provided for the expiration of some noncompete covenants at the end of the four year term, the court found it was clear the parties intended other noncompete covenants to apply to Albaneze for twenty-four months after his resignation.

Bohl v. City of Cold Spring (Kentucky Ct App 11/13/2009) Bohl sued the employer for disability discrimination, retaliation, constructive discharge, IIED, and disability harassment. The trial court granted the employer's motion for summary judgment. The Kentucky Court of Appeals affirmed.

Bohl suffered form multiple sclerosis and provided a note from his doctor that he was not able to perform the duties of a police officer or a detective. The court found that Bohl established a prima facie case by providing sufficient proof that he could perform the "essential functions" element, where he continued to perform his job to the satisfaction of the employer until the day he was removed from his shift as a detective. Bohl was unable to rebut the employer's legitimate business purpose of acting for the safety of Bohl, other officers, and the community.

City of Chicago v. Illinois Labor Rel Bd (Illinois Ct App 11/10/2009) The employer petitioned for review of an order of the Illinois State Labor Relations Board (ISLRB) certifying the union as the exclusive bargaining representative of 34 public health nurses. The Illinois Appellate Court affirmed.

The bargaining unit was not previously represented and 23 of 32 members of the proposed unit submitted signed cards to have the union represent them. The employer argued certifying the unit would fragment representation of nurses. Section 9(b) of the Illinois Public Labor Relations Act (IPLRA) provided in part " ... For purposes of this subsection, fragmentation shall not be the sole or predominant factor used by the Board in determining an appropriate bargaining unit." The court found that the record contained evidence to support the decision that the proposed bargaining unit was an appropriate unit. Considering that section 9(b) prevented the use of fragmentation as a predominant factor, the court concluded the ISLRB's certification finding was not clearly erroneous and that no further appropriateness issues necessitated a hearing.

Botsko v. Davenport Civil Rights Commission (Iowa 11/13/2009) The employer appealed the Davenport Civil Rights Commission's (DCRC) decision that the employer sexually harassed, maintained a hostile work environment, and constructively discharged the employee. The trial court and Iowa Court of Appeals affirmed. The Iowa Supreme Court affirmed in part and reversed in part.

One issue on appeal was whether the employer's procedural due process rights were violated. The employer argued that the executive director of the DCRC violated his due process rights. The court rejected the employer's claim that the executive director's mere participation in the probable cause finding and the deliberations of the DCRC violated due process. The court found that the employer overcame the presumption of honesty and integrity where it was undisputed that the executive director sat at counsel table with a complainant, conferred with counsel at the close of the testimony of witnesses, and did not object when the hearing officer suggested that she, along with counsel for the complainant, bore the burden of proof. The court concluded that the director was engaged in advocacy on behalf of the complainant sufficient to preclude her later participation in the adjudicatory process under the due process clauses of the state and federal constitutions.

Gelson's Markets v. WCAB (California Ct App 11/13/2009) The employer sought an annulment of the Workers' Compensation Appeals Board's (WCAB) decision finding the employer violated Labor Code section 132a and was liable for discrimination against an industrially injured employee. The California Court of Appeal reversed.

The employer did not return the employee to work after receiving two letters from medical doctors authorizing a return to work. The WCAB found the first letter ambiguous, but the second letter was not. The court determined that the WCAB did not apply the standard, enunciated in Department of Rehabilitation v. Workers' Comp. Appeals Bd., 30 Cal4th 1281 (2003), that to establish a prima facie case of discrimination in violation of section 132a, the employee must show that he suffered an industrial injury, that the employer caused him to suffer some detrimental consequences as a result, and that the employer singled out the employee for disadvantageous treatment because of the injury. The court found that the employee made no showing that the employer treated him disadvantageously because of the industrial nature of his injury, as compared to how the employer treated a nonindustrially injured employee.

Hayes v City of Lexington (Tennessee Ct App 11/12/2009) Hayes sued the employer for violation of the Tennessee Human Rights Act, claiming that the physical agility exam for firefighter positions had a disparate impact on females. The trial court ruled in favor of the employer. The Tennessee Court of Appeals affirmed.

Hayes claimed the portion of the physical agility exam requiring a 24 foot latter to be lifted from the center and placed on a fire engine had a disparate impact on females; but had less impact on females if they were allowed to lift one end of the latter at a time. The court concluded, based upon the preponderance of the evidence, that Hayes was not required to lift the latter from the center and could have used the end to end method during the physical agility exam.

Payless Shoesource v. Travelers Companies (10th Cir 11/10/2009) Payless defended a class action for alleged violations of California wage and hours laws, and settled that case for $2.45 million. Payless had an employment practices liability insurance policy issued by Travelers, but Travelers denied coverage. Payless sued; the trial court granted summary judgment for Travelers; the 10th Circuit affirmed.

A clause in the insurance policy excluded FLSA claims, several other federal statutory claims, workers compensation claims, and then said "other similar provisions ofany federal, state, or local statutory or common law." Payless argued that the "other similar provisions" clause modified only the last item in the list, and did not modify FLSA claims. The court rejected that argument, holding that the language was not ambiguous, that state claims similar to FLSA claims were excluded, and that the state claims involved were similar to FLSA claims.

Kovach v. Zurich Amer Ins Co (6th Cir 11/13/2009) Kovach, driving a motorcycle while drunk, got in a wreck and lost a leg. His wife's ERISA Plan denied coverage on the ground that this was not an "accident." The trial court ruled for the Plan; the 6th Circuit reversed and ordered entry of judgment for Kovach.

The court found that the Plan's interpretation of "accidental" as not including drunk-driving wrecks was "arbitrary and capricious." The wreck would be considered an accident by the ordinary person, and using a dictionary definition. The court distinguished a number of cases that would support a contrary conclusion; noted that the Plan could have specifically excluded driving while intoxicated; and found that the injury did not fit the Plan's "purposeful self-inflicted wound" exclusion.

The DISSENT argued that the Plan was not arbitrary and capricious because when "Kovach decided to mount his motorcycle and drive it on crowded roadways, with a blood alcohol content (BAC) nearly double the legal limit, he engaged in high-risk behavior that made it reasonably foreseeable and highly likely that he would be injured as a result of his choices."

DePree v. Saunders (5th Cir 11/13/2009) DePree sued the employer for First Amendment retaliation, Due Process violations, and various state law claims. The trial court granted the employer's motion for summary judgment. The 5th Circuit affirmed in part and reversed in part.

DePree was removed from all teaching functions and evicted from his office, but could continue his research activities with no reduction in salary or benefits. The court found the defendants sued in their individual capacity under the First Amendment retaliation claim were immune from suit where no clearly established law informed them that the particular disciplined imposed, which fell far short of demotion or removal, constituted an adverse employment action. With respect to his action against defendants in their official capacity seeking injunctive relief, the court stated the facts were complex and subject to further development. The court concluded DePree had not suffered a deprivation of a liberty or property interest.

Pichler v. UNITE (3rd Cir 11/13/2009) The National Right to Work Legal Defense Foundation (NRTW) moved to intervene and sought to modify a protective order in the underlying case that restricted access to motor vehicle records the union had compiled. The trial court granted the motion to intervene and denied the motion to modify the protective order. The 3rd Circuit affirmed.

In the underlying case Pichler sued the union for violation of the Driver's Privacy Protection Act (DPPA) and prevailed. The protective order allowed the union to designate potential evidence that directly relates to the union's organizing strategies. NRTW sought to notify 12,000 car owners that the union had violated the DPPA, which could result in the payment of money damages.

The court agreed with the trial court that the litigation exception of the DPPA required something more than merely using the protected records to identify potential litigants.

Thornton v. UPS (1st Cir 11/12/2009) Thornton sued the employer, asserting a claim for disability discrimination under the Americans with Disabilities Act (ADA). The trial court granted summary judgment in favor of the employer. The 1st Circuit affirmed. The court concluded that, once Thornton's case was stripped of the allegations not falling within the scope of the discrimination charge he filed with the Massachusetts Commission Against Discrimination (MCAD), he was unable to establish a prima facie case. More particularly, the court concluded that Thornton was unable to establish that he was disabled under the ADA and unable to establish that he suffered an adverse employment action.

Cabral v. USDOJ (1st Cir 11/12/2009) Porter sued the public employer, asserting a claim for 1st Amendment retaliation. She prevailed after a jury trial, and was awarded substantial compensatory and punitive damages. The case arose from Porter's allegation that she was barred from working as a nurse at a county correctional facility after informing the Federal Bureau of Investigations (FBI) of prisoner abuse. The 1st Circuit affirmed, concluding that 1) sufficient evidence supported the jury's decision to award punitive damages; and 2) the amount of the punitive damages award was not excessive. The court also affirmed the trial court's denial of the employer's request for additional evidence and discovery. The court concluded additionally that the United States Department of Justice substantially complied with the employer's "Touhy" requests (in reference to United States ex rel. Touhy v. Ragen, 340 US 462 (1951)).

Gold Coast Rstnt v. Gibson (New York App Div 11/10/2009) The employer appealed a decision by the Commissioner of the New York Division of Human Rights, which found that Gibson had been subjected to race-based harassment and constructive discharge, and awarded Gibson damages for emotional distress and lost wages. The court reversed in part, concluding that Gibson was not constructively discharged and not entitled to lost wages. The court reduced the emotional distress award from $50,000 to $25,000, vacated the award for lost wages, and otherwise affirmed.

Federal Way Sch Dist v. State (Washington 11/12/2009) The public school district sued the state, alleging that the state's current school funding scheme violated the uniformity requirement of article IX of the Washington Constitution. The district alleged that the scheme violated the constitutional uniformity requirement because it calculated funding for staff salaries in some school districts using different base salary figures than for others. The court rejected that contention, concluding that the scheme was constitutional. The court noted that the school district "has not cited any persuasive authority for its argument that article IX, section 2 requires the State to calculate basic education funding using uniform salary figures statewide."

South Bay Mgmt v. Unite Here (1st Cir 11/12/2009) As a condition to getting a property development permit, the City of Boston required South Bay to enter into a neutrality agreement with the union. The agreement required South Bay to recognize the union, and to submit unresolved contract negotiation issues to arbitration. South Bay refused to recognize the union, but an arbitrator ordered it to do so. When negotiations broke down, the union demanded arbitration. South Bay then sued for a declaratory judgment that the agreement was void ab initio, and the union filed a motion to compel arbitration. The trial court granted the union's motion to compel arbitration; the 1st Circuit affirmed.

(1) Although South Bay argued that the National Labor Relations Act (NLRA) preempted the agreement because it was required by the City in order to get a permit, the court noted that "South Bay does not dispute that the Agreement is not facially in conflict with the NLRA." Also, South Bay's assertion was that it entered into the agreement involuntarily, so the court found it unnecessary to determine the preemption issue. (2) On the question of involuntariness, the court said that a contract induced by duress is voidable rather than void, and South Bay waited too long (seven years) to challenge the agreement. (3) The court also held that the arbitration clause survived the termination of the agreement in 2008. The dispute involves the inability to reach a satisfactory collective agreement during the negotiations required by the agreement, and nothing in the agreement negated post-expiration arbitration.

Matsuo v. United States (9th Cir 11/12/2009) Matsuo sued the employer claiming that the Federal Employees Pay Comparability Act (FEPCA) imposed an unconstitutional burden on the right to travel. The trial court granted the employer's motion for summary judgment. The 9th Circuit affirmed.

Federal employees in Hawaii and Alaska were ineligible for "locality pay" (pay in addition to salary to equalize compensation with private employees in the same region), but did receive a geographically determined tax-free pay supplement called a cost-of-living allowance. The court found these federal employees lacked standing to bring a right-to-travel claim because the FEPCA encouraged travel by providing superior pay in the 48 contiguous states.

Federal employees who worked in the 48 contiguous states would lose "locality pay" if they moved to Hawaii and Alaska, arguably triggering a travel penalty. The court stated that while the right to travel had several components, being provided the same federal benefits after moving was not among them; the federal employees moving to Hawaii and Alaska would be treated like all federal employees in Hawaii and Alaska. The court concluded that subjecting federal programs to strict scrutiny for failure to provide uniform benefits in all states would undermine our constitutional scheme. The court noted that there was not a free-floating requirement that all congressional action be rational. (Congress recently acted to provide federal employees in Hawaii and Alaska with locality pay instead of the cost-of-living allowance.)

Esposito v. Altria Grp (New York App Div 11/12/2009) Esposito appealed dismissal of her New York State Human Rights Law (NYSHRL) and Americans with Disabilities Act (ADA) claims for disability discrimination. The court affirmed, concluding that 1) Esposito "a New York resident, has no right to bring a proceeding under these statutes against a foreign corporation for discrimination that allegedly occurred outside New York[;]" and 2) Esposito's ADA claim was appropriately dismissed because she failed to establish that she was denied reasonable accommodation.

Sindoni v. Cnty of Tioga (New York App Div 11/12/2009) In this CPLR article 78 proceeding, Sindoni petitioned for review of the public employer's decision discharging her from employment for "misconduct" and "incompetence." The court concluded that the discharge decision was supported by substantial evidence, and rejected the argument that the penalty of discharge was excessive.

Young v. Cooper Cameron Corp (2nd Cir 11/12/2009) Young sued the employer, seeking unpaid overtime compensation under the Fair Labor Standards Act (FLSA). The trial court granted summary judgment in favor of Young as to liability, and found after a bench trial that the employer's violation had been willful. The 2nd Circuit affirmed.

The primary issue on appeal was whether Young fell within the FLSA's "bona fide professional" exemption. Young had 20 years of engineering experience, and his work involved complicated technical expertise. However, he had no degree other than his high school diploma and his position required no formal advanced education. The employer argued that applicability of the exemption to a particular position should be determined via a "duties test" independent from any educational considerations. Interpreting 29 CFR Section 541.301(d), the court rejected that argument. The court concluded, "[w]e … hold that an employee is not an exempt professional unless his work requires knowledge that is customarily acquired after a prolonged course of specialized, intellectual instruction and study." Noting that "[t]he undisputed evidence is that [Young's] position required no advanced educational training or instruction[,]" the court affirmed.

Wilson v. CIA (2nd Cir 11/12/2009) Valerie Plame Wilson sued the Central Intelligence Agency (CIA), alleging that her 1st Amendment rights were violated when that agency refused to allow her to publish certain information in her memoir. The trial court granted summary judgment in favor of the employer. The 2nd Circuit affirmed, concluding that the information at issue remained properly classified and Wilson was obligated by a secrecy agreement she entered into as a condition of employment not to disclose the information. The court rejected Wilson's assertion that the agency had "officially disclosed" the information, determining that assertion was not supported by the record. The court also rejected the argument that Wilson should be able to disclose the information because it was already in the public domain, reasoning "public disclosure does not deprive information of classified status."

Ford v. Potter (5th Cir unpublished 11/11/2009) Ford claimed the United States Postal Service refused to hire her for a career attorney position because of her age. She lost a bench trial; the 5th Circuit affirmed in an unpublished opinion, finding no clear error.

Although the managing counsel told Ford that the successful applicant was "young and energetic," the trial court gave credit to the managing counsel's testimony that this was not the reason for the hiring decision, and properly found that this was not direct evidence of age discrimination.

Kersey v. Washington Metro (DC Cir 11/10/2009) Kersey sued the public employer, asserting disability discrimination and retaliation claims under the federal Rehabilitation Act. The trial court granted summary judgment in favor of the employer. The DC Circuit affirmed, concluding that Kersey produced insufficient evidence that the employer's failure to promote him resulted from anything other than the terms of a binding settlement agreement entered into by the parties several years earlier. The court rejected Kersey's argument that the agreement had been rescinded.

Scruggs v. Exxon Mobil Pension Plan (10th Cir 11/09/2009) Scruggs sued the employer's pension plan under 29 USC Section 1132(a)(1) of the Employee Retirement Income Security Act (ERISA), seeking pension benefits. The trial court granted summary judgment in favor of the plan. The 10th Circuit affirmed, concluding that the plan administrator's decision denying benefits was not arbitrary and capricious. Scruggs worked for the employer for 22 years, either as an independent contractor or through a third party. She was never on the employer's payroll. The court determined that the definition of "employee" under the plan was ambiguous, and that the plan administrator's interpretation of that term as excluding Scruggs was not arbitrary and capricious.

Conrad v. Phone Directories Co (10th Cir 11/10/2009) Conrad sued his former employer, PDC, on state-law tort and contract claims. Conrad had signed an employment agreement in which he agreed to arbitrate all claims against PDC. The trial court denied PDC's motion to dismiss; PDC took an interlocutory appeal; the 10th Circuit held that it lacked jurisdiction to review the denial of PDC's motion.

PDC's trial motion was a relatively generic Rule 12 motion which said, "Plaintiff's Complaint should be dismissed ... because Plaintiff agreed to arbitrate all claims relating to his employment." However, PDC never made a request that the case be referred to an arbitrator for decision.

In a case of first impression, the 10th Circuit spelled out the rules of pleading for litigants who wish to take an interlocutory appeal from a denial of a motion founded on an agreement to arbitrate. A decision to deny a motion to dismiss is not final, although the Federal Arbitration Act (FAA) contains exceptions for "refusing a stay of action under section 3" or "denying a petition under section 4." The court refused to treat a generic Rule 12 motion to dismiss as fitting these exceptions, finding that it was not "a motion either to stay proceedings or to compel arbitration under FAA Sections 3 or 4." The FAA exceptions "should be interpreted only to encompass motions brought explicitly pursuant to the FAA or those in which it is plainly apparent that the applicant seeks only arbitration.

Kaye v. San Diego Law Library (California Ct App 11/10/2009) The employer is a public library that discharged Kaye, a law librarian, for sending a "scathing e-mail criticizing his superiors." Kaye sued claiming a violation of the California constitution's free speech clause. The California Court of Appeal affirmed the trial court's grant of summary judgment for the defendants.

Kaye's supervisor sent an email requesting a list of projects he thought should be departmental priorities. In response, Kaye sent to the supervisor and to some co-workers a "scathing" email that was highly critical of how his department was being run. The employer discharged Kaye for sending this email.

(1) Garcetti v. Ceballos, 547 US 410 (2006), applying the federal free speech clause, held that "when public employees make statements pursuant to their official duties, ... the Constitution does not insulate their communications from employer discipline." Kaye conceded that his free speech claim would fail if Garcetti applied, but argued that Garcetti does not apply to violations of the state constitution's free speech clause. The court held that the Garcetti analysis did apply here, reasoning that there was no reason not to apply the US Supreme Court's analysis, which California courts routinely do.

(2) The court also rejected Kaye's claims that the employer violated the whistleblower provision of the California False Claims Act, that the library director lacked the power to discharge him, and that the employer's Board of Trustees violated the Brown Act by allowing a senior deputy county counsel to advise it during a closed session.

Williams v. Social Sec Admin (Fed Cir 11/09/2009) Williams challenged a Merit Systems Protection Board (MSPB) decision affirming the federal employer's removal decision. Williams argued that 1) the employer failed to demonstrate a nexus between his alleged misconduct (tax fraud arising from the claiming of someone else's children as dependents) and the "efficiency of the service;" and 2) she was treated discriminatorily because the employer re-employed an employee who was more culpable than he was. The Federal Circuit rejected the first argument, but concluded that neither the record nor the Board's conclusions and findings were adequate to allow for review of the second. With respect to the first argument, the court reasoned that the employer (the Social Security Administration) "justifiably concluded that an employee who engaged in such conduct could well again misuse Social Security numbers at some point in the future."

White v. National Football League (8th Cir 11/10/2009) The employer sought to recover a pro-rata portion of bonus payments made to Michael Vick. The Special Master found in favor of the employer. The trial court reversed, finding in favor of Vick. The 8th Circuit affirmed the trial court.

Vick's 10-year contract provided for two roster bonuses - one for 2005 and one for 2006. The collective bargaining agreement (CBA) between the owners and the players contained an anti-forfeiture provision " ... for signing bonus allocations for years already performed, or for other salary escalators or performance bonuses already earned." The parties agreed that the relevant question was whether the roster bonus should be categorized as a signing bonus allocation or other salary escalators or performance bonuses. With a forfeiture provision that was ambiguous, the court afforded the trial court a measure of deference for its 20 year involvement in the underlying player-owners dispute and affirmed the trial court's ruling that the roster bonus was a salary escalator or performance bonus already earned by Vick by making the eighty-man roster in 2005 and 2006.

Wetzler v. Illinois CPA Retirement Plan (7th Cir 11/10/2009) Upon Wetzler's retirement, his ERISA Plan denied his request for a single sum cash payment of his retirement benefits. He sued the Plan; the trial court granted summary judgment for the Plan; the 8th Circuit affirmed.

The original Plan documents expressly provided that participants could elect a single sum cash payment. Such a payment had been made earlier to another retiree, but that was a mistake. The plan was underfunded, and IRS regulations do not allow a defined benefit plan to make such a payment if the Plan is underfunded. After the earlier mistake, the Plan adopted an amendment that provided that all Plan distributions would comply with the relevant Treasury regulations.

Wetzler's legal argument was that this Plan amendment violated ERISA's anti-cutback rule. The 8th Circuit held that the trial court correctly reasoned that a lump sum payment never would have been allowed under the Plan because the Plan document had to be read in conjunction with the Internal Revenue Code. Because of underfunding, retirees never did have the option of collecting a lump sum distribution.