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August 08, 2005
Employment Law Memo
Employment Law Memo emails summarize employment law cases from all federal and state appellate courts. It is a fee based service, with a 4 week free trial. Here is a sample:
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Employment Law Memo 08/05/2005 by LawMemo - First in Employment Law |
*** Featured Cases ***10th - Forced use of sick leave for FMLA parental leave could violate Title VII.Orr v. City Of Albuquerque (10th Cir 08/02/2005) Claiming mistreatment in connection with their requests for FMLA parental leave, police officers sued under the pregnancy discrimination provisions of Title VII and the New Mexico Human Rights Act. The trial court granted summary judgment for the employer; the 10th Circuit reversed. Two female officers arranged with supervisors to use accrued compensatory time and vacation time to accommodate the birth of their children. The personnel officer learned of this and forced the officers to use only sick leave. The trial court held that the officers did not make out a prima facie case (1) because they had not suffered an adverse employment action and (2) because they were not treated differently than other situated similarly. The 10th Circuit reversed. (1) Forced use of sick leave in this case was an adverse employment action. It resulted in a reduction of accumulated sick leave and an inability to use compensatory time that the supervisor had authorized to be accumulated for this purpose. It also had the effect of preventing them from working additional overtime. The court also stated that failure to allow an employee to use the FMLA's 12-weeks leave to care for a medical condition can constitute an adverse employment action under Title VII. (2) There was evidence that three non-pregnant officers had been allowed to use compensatory time for FMLA leave. 2nd - ADEA liquidated damages can be assessed against public employers.Cross v. New York City Transit (2nd Cir 08/02/2005) Cross and a co-plaintiff sued under the Age Discrimination in Employment Act (ADEA) and the New York Human Rights Act. A jury returned a verdict in favor of plaintiffs for lost earnings ($42,000 and $2,500 respectively), mental distress ($50,000 each) and liquidated damages under the ADEA (in the amount of the lost earnings). The 2nd Circuit affirmed. The employer first promoted the plaintiffs from "helpers" to "maintainers," and then demoted them. In upholding the jury verdict, the court found that there was evidence "(1) that defendants had initially taken steps to avoid promoting the plaintiffs, which defendants were compelled to abandon by union protests; (2) that after reluctantly promoting Cross and Francis, the defendants ensured the plaintiffs’ eventual demotion by deliberately denying them the training necessary to perform satisfactorily as Maintainers, while at the same time providing that training to younger counterparts; (3) that defendants made various disparaging comments about older workers, including the plaintiffs; and (4) that after the plaintiffs’ demotions, defendants placed their younger replacements in a structured training program for Maintainers." The question of assessing ADEA liquidated damages against a public employer was a matter of first impression for the 2nd Circuit. The court held that, although "liquidated damages" under the ADEA are properly treated as punitive damages, such damages are expressly provided by statute. The ADEA specifically includes government actors in the definition of "employer," and the ADEA incorporates provisions of the Fair Labor Standards Act (FLSA) that expressly provide for liquidated damages to be recovered from public entities. 1st - Off-payroll employees properly excluded from ERISA plan.Edes v. Verizon Communications (1st Cir 08/02/2005) Three employees sued under the Employment Retirement Income Security Act (ERISA) claiming that the employer violated ERISA by placing them on the payroll of third-party payroll agencies with the result that they were excluded from the employer's ERISA plans. The trial court dismissed the claims; the 1st Circuit affirmed. When the plaintiffs were hired in April 1994 the employer required them to sign on with independent payroll agencies who issued their paychecks during the entire time of their employment. In 1998 the employer terminated the plaintiffs' employment. In 1999 the plaintiffs demanded ERISA plan benefits, and the employer refused. The ERISA plans were expressly limited to employees who were paid directly by the employer, and the plaintiffs sued in October 2001 alleging that this violated ERISA. (1) Plaintiffs were not entitled to benefits under ERISA Section 502(a)(1)(B) because, although they may have been common law employees, they were explicitly excluded from the ERISA plans because they were not paid directly by the employer. (2) Plaintiffs' Section 510 claim (that the employer failed to move them to the employer's payroll after they were hired) was time-barred under the state's three-year statute of limitations. The claimed wrong was a misclassification that occurred in April 1994, and there was no "continuing violation" based on each subsequent paycheck. (3) Plaintiffs' ERISA Section 404 claim (breach of fiduciary duty) was time-barred by the ERISA three-years statute of limitations. Although there is an apparent split of opinion among the circuits as to how to analyze questions of "actual knowledge" of a breach or violation, these plaintiffs had actual knowledge in April 1994, even though they did not have actual knowledge of the plans' eligibility criteria. (4) The employer did not violate ERISA's minimum participation standards, as there is "no statutory provision that prohibits the use of such arbitrary eligibility criteria." Even if the employer failed to comply with certain tax regulations, that would not permit a court to re-write a plan. *** Capsules ***4th - State secrets doctrine results in dismissal of CIA agent's Title VII case.Sterling
v. Tenet (4th Cir 08/03/2005) A covert CIA agent sued the CIA Director and 10 CIA employees under Title VII claiming racial discrimination by CIA management plus retaliation for using internal EEO procedures. The court dismissed the case under the "state secrets doctrine" based on a declaration by the CIA Director that pursuing the case would result in disclosure of highly classified information about the identity, location, and assignments of CIA operatives. 6th - Discharge for not supporting supervisor's political campaign did not violate the constitution.Simasko
v. County of St. Clair (6th Cir 08/03/2005) Simasko was an assistant county prosecutor whose supervisor was running for a judicial vacancy. Simasko claimed that the County Attorney discharged him because (a) he refused to support his supervisor's campaign and (b) he refused to try to curtail his brother's public support of the supervisor's political opponent. The court held that Simasko's job was a "policymaking position," and that he could therefore be discharged for his political views without violating the first amendment. 7th - Oral promise of bonus was not clear and definite.Lillian v. Peak6 Investments (7th Cir 08/02/2005) Lillian claimed he was fraudulently induced into entering an agreement to be employed as general counsel, and that the employer breached the contract by discharging him without paying a pro rata portion of a year-end bonus. The 7th Circuit affirmed summary judgment for the employer. There was a written agreement specifying an annual salary and a "year-end discretionary bonus." Lillian claimed there had been an oral promise of a $150,000 bonus, but the court found that Lillian could not prove a "clear and definite promise" as required by Illinois law. The fraudulent inducement claim failed because there was no misrepresentation of fact and no fraudulent concealment of facts. 9th - Arbitration agreement was unconscionable, even after Luce Forward decision.Circuit City Stores v. Mantor (9th Cir 08/03/2005) In a previous decision in this case the 9th Circuit held that the employer could not enforce an arbitration agreement because it was unconscionable under California law. After the 9th Circuit decided EEOC v. Luce Forward, 345 F3d 742 (9th Cir 2003), the employer renewed its motion to compel arbitration, arguing that Luce Forward should change the outcome. The 9th Circuit did not agree, citing the similar case of Ingle v. Circuit City, 408 F3d 592 (9th Cir 2005). 11th - Diabetic was not disabled; using Rule 50(b) motion was proper.Collado v. United Parcel Service (11th Cir 08/02/2005) Collado sued claiming discrimination and retaliation in violation of the Americans with Disabilities Act (ADA), and the case went to trial. The employer filed a Rule 50(a) motion for judgment as a matter of law at the close of Collado's case-in-chief claiming Collado failed to make out a prima facie case because he had not shown he was "disabled." The trial court ruled against the employer. After the jury returned a verdict for Collado, the employer renewed its motion for judgment as a matter of law under Rule 50(b). The trial court granted the motion on the ground that Collado was not disabled. The 11th Circuit affirmed. The evidence was clear that Collado was not disabled. The legal issue on appeal was whether it was proper to grant the employer's Rule 50(b) motion after denying the Rule 50(a) motion on essentially the same question of whether Collado was disabled. The rule is that once a trial court has determined that a prima facie case exists and has denied a Rule 50(a) motion on that basis, the court cannot revisit the prima facie case question. However, the issue in the Rule 50(b) motion was whether Collado provided sufficient evidence as to an element of his claim, and that was properly decided in the Rule 50(b) motion. Fed - Employee's removal from Credit Union Administration position was unlawful.McCollum v. National Credit Union Admin (Fed
08/03/2005) The Board that governs the National Credit Union Administration affirmed McCollum's removal from his job. The court held that this was unlawful because he was not removed by the Board, which was the only entity that had authority to remove him. The court also reversed the Board's decision that denial of work duty status when a removal is pending is not a "personnel action" under 5 USC Section 2302(a)(2)(A). CA - Claim that hospital's "short-shift differential" pay is designed to evade overtime laws can go to trial.Huntington Memorial Hospital v. Superior Court
(California Ct App 08/02/2005) Most nurses in the hospital work 12 hour shifts. State law requires an overtime rate of time and on-half for all hours in excess of eight hours in one day. The hospital pays a "short shift differential" of $4.04 per hour when a 12-hour nurse works less than 10 hours in any one day, the $4.04 being earned for all hours worked. If a nurse works more than 10 hours, the $4.04 is not paid for any hours. The California Court of Appeal held that it was proper to deny summary adjudication because there are disputed issues as to whether the short-shift differential is a subterfuge or artifice designed to evade the overtime laws. CA - Defective arbitration demand did not waive arbitration.SEIU Local 715 v. Cupertino Union School (California Ct
App 08/03/2005) The union sued to compel the employer to arbitrate a grievance under their collective bargaining agreement. The trial court ruled that the union forfeited its arbitration rights; the California Court of Appeal reversed. The collective agreement provided that the union "may submit the grievance to arbitration" within 20 working days "by submitting a letter to the State Conciliation Service (SCS) . . . with a copy to the Superintendent." The union sent a letter to the employer demanding arbitration; the letter was timely but was not sent to SCS as the collective agreement contemplated. The court held that the union did not waive its right to arbitrate. The court cited the preference for arbitration and the general rule that forfeitures are not favored. This collective agreement did not "directly and specifically" condition the union's ability to arbitrate upon making a timely and procedurally proper demand. Construing the agreement so as to avoid a forfeiture, the court found that the union did not waive its right to arbitrate. GA - Tenured teacher's discharge upheld.Boone v. Atlanta Independent School System (Georgia Ct
App 08/01/2005) The school board had a hearing and determined that Boone, a tenured teacher, should be discharged for poor performance. The Board did not notify Boone in a timely manner as to the 2002-2003 contract year. However, the Board was justified in terminating Boone's employment in the following year based on the previous unappealed findings. NY - Whistleblower must allege an actual violation of law.Nadkarni v. North Shore-Long Island Jewish Health (New
York App Div 08/01/2005) In a whistleblower action under New York Labor Law Section 740 the plaintiff must allege an actual violation of law, not merely a reasonable and good faith belief that there was a violation. In this case the employer did not carry out the plan that the employee complained about, so her contention that there was a legal violation was speculative. OH - Commission had jurisdiction over layoff issue.Dryden v. New Philadelphia Civil Service Commn (Ohio Ct
App 07/25/2005) Laid off employees were allowed to appeal to the city Civil Service Commission even though they were covered by a collective bargaining agreement that provided for binding arbitration. Their statutory claims provided for specific rights that were not included in the collective agreement. OH - Age discrimination case to go to trial.Hoffman v. CHSHO, Inc (Ohio Ct App 08/01/2005) The employer discharged Hoffman (age 60) as part of a reduction in force, and Hoffman claimed a violation of the Age Discrimination in Employment Act (ADEA). The court found that Hoffman stated a prima facie case because her duties were assumed by a 27-year-old employee and that Hoffman's professional experience "dwarfed" that of the 27-year-old. There remains a genuine issue of fact as to the reasons for discharging Hoffman rather than the younger employee. OH - Breaching employee was liable for his training expenses.NetJets v. Binning (Ohio Ct App 08/02/2005) . Binning was hired as a pilot, and his agreement provided that he would reimburse the employer for his training expenses if he voluntarily ceased employment within 24 months. Binning left the job, claiming he had to do so because continuing the job would increase the trouble he was having with an injured back. The court found that Binning did quit "voluntarily" and was required to reimburse the employer. Binning had not told the employer about his back problems and had not given the employer a chance to accommodate him. OK - 10-year employment agreement was implied from a stock purchase agreement.Bourke v. Western Business Products (Oklahoma Ct App
08/03/2005) The court upheld a jury verdict based on the breach of an implied contract of employment. There was a contract for purchase of stock to be paid for in monthly installments deducted from the plaintiffs' employment pay for 10 years. From this the jury was entitled to imply a contract for continued employment for 10 years. OR - Employer waived its claim preclusion defense.Aguirre v. Albertson's (Oregon Ct App 08/03/2005) Aguirre sued to recover unpaid overtime and termination wages pursuant to the Fair Labor Standards Act (FLSA) and Oregon's wage and hour laws. The trial court granted summary judgment on the ground that the claims were precluded by a prior federal judgment in a class action in which Aguirre was a member. The Oregon Court of Appeals reversed. While Aguirre and the employer were litigating this individual action in Oregon, a class action involving essentially identical issues was pending in Idaho federal court under multi-district litigation rules. The Idaho case was settled, but Aguirre never received notice of that action. Aguirre's claims would normally have been precluded by the Idaho litigation. However, the court held that the employer waived its ability to rely on claim preclusion because the employer did not notify the Oregon courts or the Idaho court or Aguirre that two litigations were going on simultaneously. SC - No contract breach under express at-will contract.Cape v. Greenville County School (South Carolina
08/01/2005) A teacher's contract with a school was for a definite term and contained an express at-will clause. Therefore, the school could discharge the teacher without breaching the contract. TN - Claim alleged union dues used for objectionable political purposes.Esquinance v. Polk County Education Assn (Tennessee Ct
App 07/29/2005) A public school teacher's complaint sufficiently alleged a cause of action on his claim that the dues which he pays to a union are being used for ideological and political agendas to which he objects. WI - Impairment must be permanent to be a disability under state statute.Erickson v. Labor and Industry Review Commn (Wisconsin
Ct App 08/03/2005) Erickson claimed his employer discriminated against him in violation of state statute by discharging him because of a disability and by refusing to reasonably accommodate a disability. The court found that Erickson was not disabled under the statute because he did not prove that his back injury was permanent, and did not prove that his back pain makes achievement unusually difficult or limits the capacity to work.
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Posted August 08, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
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