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Employment Law Memo 03/23/2009 [Typically only by email]
March 23, 2009 by Ross Runkel at LawMemo
| Employment Law Memo 03/23/2009 [Typically only by email] LawMemo First in Employment Law |
*** Featured Cases ***9th - Dismissal reversed as to accountants' valuation of ERISA retirement plan.Bowden v. CNF (9th Cir 03/20/2009) Bowden sued the employer and the plan for breaches of their ERISA-based fiduciary duties, the accountants for professional negligence in valuing plan liabilities, and the Pension Benefit Guaranty Corporation (PBGC) for failure to pursue claims. The trial court dismissed all of Bowden's claims. The 9th Circuit affirmed in part and reversed in part. Bowden claimed his retirement benefits were reduced by the defendants' actions. The court affirmed the dismissal of the ERISA-based claims because Bowden lacked standing under Article III and under ERISA. The court affirmed the dismissal of the claims against the PBGC where Bowden could not overcome the presumption that PBGC's non-enforcement decisions were presumptively immune from judicial review. The court was unable to assess whether Bowden was a third party beneficiary of the accountants' engagement agreement where California law required the accountants to act with ordinary care toward the intended third party beneficiaries of its contracts. The court reversed the dismissal as to the accountants. CA - Part-time employees with seniority could not bump full-time employees.Hildebrandt v. St Helena School
(California Ct App 03/19/2009) The issue on appeal was whether part-time certificated employees with greater seniority were entitled to bump full-time certificated employees with lesser seniority in a reduction of services pursuant to Education Code section 44955. The California Court of Appeals affirmed the trial court's decision denying bumping rights. The court found that the employer had the discretion to define a position as full time if the employer concluded that the assignment could not be as well performed on a part-time basis. The court relied on Murray v Sonoma County Office of Education, 208 Cal App 3d 456 (1989), which interpreted Education Code section 44956 (reappointment rights) so that part-time employees with seniority could not force the employer to divide a full-time position to accommodate their desire for a part-time position. The court concluded that the application of section 44955, like section 44956, did not require full-time positions to be divided into part-time positions. *** Capsules ***7th - Employee failed to exhaust administrative remedies for RA claim.Teal v. Potter (7th Cir 03/20/2009) Teal sued the employer for wrongful discharge in violation of the Rehabilitation Act (RA). The trial court granted the employer's motion for summary judgment. The 7th Circuit remanded with instructions to dismiss the case without prejudice. The court found that Teal's discharge was not related to the claim filed with the Equal Employment Opportunity Commission (EEOC). The court noted that Teal should have initiated an additional EEOC claim after her July 2003 discharge. The court concluded that Teal failed to exhaust administrative remedies. 9th - Trial court lacked subject matter jurisdiction under LMRA.Int'l Union Of Engineers v. County
of Plumas (9th Cir 03/20/2009) The union sued to compel arbitration in state court. The employer removed the case to federal court. The trial court ordered arbitration. The 9th Circuit reversed. The court stated that the employer could raise jurisdictional challenges at any time. Because the county was not an employer under the Labor Management Relations Act (LMRA) and the claims did not arise under the Constitution or federal law, the court concluded that the trial court lacked subject matter jurisdiction. CA - Employee was not required to exhaust administrative remedies.Lloyd v. County of Los Angeles
(California Ct App 03/19/2009) Lloyd sued the employer for retaliation in violation of public policy and in violation of the whistleblower statutes. The trial court granted the employer's motion for summary judgment. The California Court of Appeals affirmed. The issues were whether the action was barred by failure to exhaust administrative remedies and whether a triable issue of fact existed. Because Lloyd's whistleblowing activity did not constitute a claim of discrimination under the employer's civil service rules, the court concluded that Lloyd was not required to exhaust his administrative remedies. The court held that Lloyd's causes of action alleging statutory violations of the Labor Code were not barred by his failure to exhaust the administrative remedy of Labor Code section 98.7 because there was no requirement that a plaintiff pursue the Labor Code administrative procedure prior to pursuing a statutory cause of action. The court held that Government Code section 815 eliminated common law tort liability for public entities barring Lloyd's retaliation and wrongful discharge claims. The court found that Lloyd failed to raise a triable issue of material fact. IL - Employee did not established investigation of sexual orientation complaint was inadequate.Powell v. City of Chicago HRC
(Illinois Ct App 03/17/2009) Powell appealed the employer's decision denying her claim of discrimination based on sexual orientation alleging inadequate investigation. The trial court affirmed as did the Illinois Appellate Court. The court stated it was not up to the employer to support Powell's allegations of discrimination. The court concluded that the evidence supported the employer's finding that the investigation was adequate and that the lack of substantial evidence warranted dismissal of Powell's compliant. MO - Promise not to discriminate did not create employment contract.Doran v. Chand (Missouri Ct App
03/17/2009) Doran sued the employer for breach of contract and negligent supervision. The trial court dismissed all claims for failure to state a claim. The Missouri Court of Appeals affirmed in part and reversed in part. The court found that Doran pointed to nothing in the employer's handbook or policies or the acknowledgement forms that would lead a reasonable at-will employee to believe that the employer clearly and definitely offered to modify her at-will status. Because federal and state law prohibit discrimination based on race, national origin, or color, the court stated that any promise by the employer that it would not discriminate on the basis of race did not constitute consideration necessary to create an employment contract. NJ - Agreement settling sexual harassment suit was publicly available.Asbury Park Press v. Monmouth County
(New Jersey App Div 03/17/2009) The issue was whether the employer (Monmouth County) could withhold public disclosure of its agreement with an employee to settle her sexual harassment and discrimination lawsuit. The New Jersey Appellate Division reversed the trial court finding that the Legislature, in the Open Public Records Act (OPRA), did not undertake to assure privacy when an alleged victim of sexual harassment chose to seek redress in the courts. OH - Summary judgment granted on racial and gender discrimination, retaliation, and wrongful discharge claims; but denied on breach of contract claim (2-1).Lindsay v. Children's Hospital (Ohio
Ct App 03/18/2009) Lindsay sued the employer for breach of contract, racial discrimination, gender discrimination, retaliation, and wrongful discharge in violation of public policy. The trial court granted the employer's motion for summary judgment. The Ohio Court of Appeals affirmed in part and reversed in part. With respect to the breach of contract claim, the court found there was a genuine issue of material fact on compliance with the notice provisions of the contract. The DISSENT argued that Lindsay was given notice that the one year notice period could be reduced to thirty days if her performance did not improve. VT - Employee failed to establish stigma for his due process claim.Herrera v. Union School District
(Vermont 03/20/2009) Herrera sued the employer for deprivation of his due process rights in violation of 42 USC Section 1983. The jury found in favor of the employer. The Vermont Supreme Court affirmed. In this stigma-plus claim, the court found in the previous appellate case that the decision to place Herrera on paid administrative leave that was tantamount to dismissal satisfied the "plus" component of the claim. The court concluded that the evidence presented at trial failed to establish that the employer stigmatized Herrera, in the constitutional sense of depriving him of employment opportunity, beyond the act and declaration of his discharge for performance reasons. |
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Employment Law Editor: Ross Runkel, Professor of Law Emeritus.
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