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Featured Cases ***
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Capsules ***
Desmond v. Mukasey (DC Cir
07/01/2008)
http://caselaw.findlaw.com/data2/circs/dc/075139p.pdf
Desmond sued the federal employer,
asserting disability discrimination (disparate treatment and retaliation)
claims under the Rehabilitation Act. The
trial court granted summary judgment in favor of the employer on the
discrimination claim, and the employer prevailed after a jury trial on the
retaliation claim. The DC
Circuit reversed as to the disability discrimination claim and affirmed as
to the retaliation claim.
The court held that
"sleeping" is a major life activity under the Rehabilitation Act.
The court reasoned that this conclusion is consistent with the United
States Supreme Court's instruction (in Toyota Motor Mfg., Ky., Inc. v.
Williams, 534 US 184 (2002)) that "'[m]ajor life activities'...refers
to those activities that are of central importance to daily life[.]"
The court also reasoned that sleep is "more central to the life
process itself" than some of the generally recognized major life
activities (such as seeing, hearing, and speaking).
The court rejected the argument that
an employee is required to show some adverse effect on work performance (or
his "waking life" in general).
The court noted that "nothing in the statute suggests that to
claim the Act's protection a plaintiff ... must demonstrate that his
impairment affects his work performance in some way or has an ancillary
effect on his waking life in general."
The court also noted that although such a consideration may become
relevant when an employee requests an accommodation, that was not an issue
in this case.
White v. Baxter Healthcare (6th Cir
07/03/2008)
http://caselaw.findlaw.com/data2/circs/6th/071626p.pdf
White sued the employer, asserting
(among other things) race discrimination (disparate treatment) claims under
Title VII. The trial court
granted summary judgment in favor of the employer.
The 6th Circuit reversed.
One of White's claims was asserted
under a mixed-motive theory and supported by circumstantial evidence. The 6th Circuit had not previously determined the proper
summary judgment framework for a Title VII mixed-motive claim supported by
circumstantial evidence. The
court noted that, since the United States Supreme Court's decision in Desert
Palace, Inc. v. Costa, 539 US 90 (2003), the federal circuits have taken
widely differing approaches to this issue.
The court held, "to survive a defendant's motion for summary
judgment, a Title VII plaintiff asserting a mixed-motive claim need only
produce evidence sufficient to convince a jury that: (1) the defendant took
an adverse employment action against the plaintiff; and (2) 'race, color,
religion, sex, or national origin was a motivating factor' for the
defendant's adverse employment action."
The court noted that "[t]his burden of producing some evidence
in support of a mixed-motive claim is not onerous and should preclude
sending the case to the jury only where the record is devoid of evidence
that could reasonably be construed to support a plaintiff's claim."
The court determined ultimately that
White produced sufficient evidence of discriminatory motive to get to a jury
on his mixed-motive race discrimination claim, and sufficient evidence of
pretext on his other race discrimination claim.
Brady v. Wal-Mart Stores (2nd Cir
07/02/2008)
http://caselaw.findlaw.com/data2/circs/2nd/065486p.pdf
Brady sued the employer, asserting
(among other things) disability discrimination (disparate treatment, hostile
work environment, and failure to reasonably accommodate) claims under the
Americans with Disabilities Act (ADA) and state law.
Brady prevailed in substantial part after a jury trial, and accepted
remittitur. The 2nd Circuit
affirmed.
Brady suffered from cerebral palsy.
Moreover, there was evidence on the record that it was readily
apparent that he suffered from a disability.
However, Brady never requested an accommodation and in fact testified
that he didn't think he needed one. The
2nd Circuit has previously held that "[g]enerally, it is the
responsibility of the individual with a disability to inform the employer
that an accommodation is needed."
Prior to this case, the 2nd Circuit had not been presented with an
opportunity to consider when that general rule might be inapplicable.
Taking advantage of that opportunity here, the court held "an
employer has a duty to reasonably accommodate an employee's disability if
the disability is obvious - which is to say, if the employer knew or
reasonably should have known that the employee was disabled."
The court noted that its approach "is consistent with the
statutory and regulatory language, which speaks of accommodating 'known'
disabilities, not just disabilities for which an accommodation has been
requested."
Reilly v. Atlantic City (3rd Cir
07/01/2008)
http://caselaw.findlaw.com/data2/circs/3rd/062591p.pdf
Reilly sued the employer and
individual defendants, asserting (among other things) a claim for 1st
Amendment retaliation. The
trial court denied the defense of qualified immunity as to this claim.
The 3rd Circuit affirmed.
Reilly's claim arose from the
allegation that he was discharged in retaliation for testifying at trial
during the criminal prosecution of another police officer.
His testimony stemmed from his official duties during an
investigation related to that prosecution.
In Garcetti v. Ceballos, 547 US 410 (2006), the United States Supreme
Court held that "the First Amendment does not prohibit managerial
discipline based on an employee's expressions made pursuant to official
responsibilities." However,
the Garcetti opinion focused solely on speech contained in an internal memo
- it did not decide whether Garcetti's testimony was entitled to 1st
Amendment protection.
The court held that Reilly's
truthful in-court testimony constituted speech touching on a matter of
public concern entitled to 1st Amendment protection.
The court reasoned "the citizen's obligation to testify
truthfully is no weaker when one is employed by the government....Thus, the
act of offering truthful testimony is the responsibility of every citizen,
and the First Amendment protection associated with fulfilling that duty of
citizenship is not vitiated by one's status as a public employee."
Esteňos v. PAHO/WHO Fed Credit
Union (District of Columbia 07/03/2008)
http://www.dcappeals.gov/dccourts/appeals/pdf/04-CV-1093+.PDF
Esteňos sued the employer,
asserting a national origin discrimination claim under the District of
Columbia Human Rights Act (DCHRA). The
trial court granted summary judgment in favor of the employer.
The court reversed.
The trial court determined that
although discrimination based on a foreign accent (or the ability to speak a
foreign language) can constitute national origin discrimination under the
DCHRA, the DCHRA does not prohibit discrimination based on the inability to
speak English proficiently. The
court disagreed, concluding that a national origin discrimination claim
based on an English-proficiency requirement is cognizable under the DCHRA.
The court noted that "[l]anguage-proficiency requirements can be
based on perfectly legitimate considerations, but they are also capable of
use to discriminate against nationals of countries where the language is not
generally spoken." The
court noted that the Equal Employment Opportunity Commission (EEOC) in 29
CFR Section 1606.6(b)(1) "has identified 'fluency-in-English' and
'English-only' requirements for employment as possibly discriminatory and,
thus, it will 'carefully investigate charges involving these selection
procedures for both disparate treatment and disparate adverse impact on the
basis of national origin.'"
On an unrelated issue, the court
held that "timely filing a claim with the [EEOC], which in turn
cross-files with the [District of Columbia Office of Human Rights], tolls
the time for filing a private right of action under D.C. law."
Morrow v. Hallmark Cards (Missouri
Ct App 06/30/2008)
http://www.lawmemo.com/docs/mo/morrow.htm
Morrow sued the employer, asserting
state law claims for age discrimination and retaliation.
The trial court granted the employer's motion to compel arbitration,
and ultimately dismissed the case. The
court reversed.
The employer's arbitration agreement
was presented to employees as a condition of continued employment. Employees were deemed to have accepted the agreement by
continuing to work after being notified of its existence.
The agreement was one-sided, in that the employer was not obligated
to arbitrate any of its potential claims.
The court held that "the arbitration program is not a contract
but a term or condition of employment-at-will that terminates when the
employment terminates." The court concluded that "the purported 'contract' lacks
mutuality in the absence of some...legal consideration to support an
agreement requiring that the employees unilaterally give up their right of
access to the courts." Significantly,
the court also concluded that "continued at-will employment...cannot
constitute legal consideration for a contract to arbitrate."
Since Morrow was no longer an employee at the time she filed suit,
and thus not subject to the employer's arbitration agreement, the court
reversed.
Comens v. SSM St Charles Clinic
(Missouri Ct App 06/30/2008)
http://www.lawmemo.com/docs/mo/comens.htm
Comens sued the employer, asserting
a claim for breach of contract (based on the employer's modification of his
compensation formula). The
trial court granted summary judgment in favor of the employer, based on its
conclusion that Comens was equitably estopped from asserting his claim
because he continued to accept compensation, benefits, and continued
employment after the employer's modification of the parties' agreement.
The court reversed.
In order for equitable estoppel to
apply, "the representation made by the party estopped must be
inconsistent with the claim afterwards asserted ...."
Summarizing Missouri cases on the issue, the court reasoned "[w]e
find that these cases collectively indicate that when a plaintiff has made
timely and frequent complaints which notified the defendant that there was a
disagreement about a particular issue prior to the plaintiff making a claim
about that issue, the plaintiff has not made inconsistent
representations." Since
Comens had made timely complaints about the modification while remaining
employed, the court concluded that the employer did not establish the
affirmative defense of equitable estoppel.
Boesch v. Champaign Natl Bank (Ohio
Ct App 06/30/2008)
http://www.sconet.state.oh.us/rod/docs/pdf/9/2008/2008-ohio-3282.pdf
The National Bank Act (NBA) gives
national bank boards of directors the power to appoint and dismiss bank
officers "at pleasure." The
court held that the NBA preempts Ohio employment discrimination (and
retaliation) laws set forth in R.C. 4112.
The court noted that "[t]he Sixth Circuit has repeatedly held
that the 'at pleasure' language preempts state employment law in this
regard." The court also noted there is an Ohio state court decision
rejecting this approach (White v. Fed. Reserve Bank (1995), 103 Ohio App.3d
534).
Reddington v. Staten Island Univ
(New York 07/01/2008)
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_05955.htm
New York's Whistleblower Law is set
forth in Labor Law Section 740. New
York's Health Care Whistleblower Law is set forth in Labor Law Section 741.
New York's Whistleblower Law has a waiver provision (Section 740(7)),
which provides that "the institution of an action in accordance with
this section shall be deemed a waiver of the rights and remedies available
under any other contract, collective bargaining agreement, law, rule or
regulation or under the common law."
The 2nd Circuit certified to the
court the following two questions: 1) "[d]oes the institution of a
time-barred claim pursuant to...section 740 simultaneously with a claim
pursuant to...section 741 trigger section 740(7)'s waiver provision and
thereby bar the section 741 claim, even if the section 740 claim is
subsequently withdrawn?"; and 2) "[d]oes the definition of
employee in...Section 741 encompass an individual who does not render
medical treatment...?" The
court held that the answers to these questions is "no."
Curcini v. County of Alameda
(California Ct App 07/01/2008)
http://www.courtinfo.ca.gov/opinions/documents/A115652.PDF
The court held that California Labor
Code Sections 510, 226.7, and 1194 (relating to overtime compensation, meal
breaks, and rest breaks) do not apply to California's "charter
counties." The court noted
that under the California Constitution 1) "[w]hen a California county
adopts a charter, its provisions 'are the law of the State and have the
force and effect of legislative enactments[;]'" and 2) "under the
'home rule' doctrine, county charter provisions concerning the operation of
the county, and specifically [those] including the county's right to provide
'for the number, compensation, tenure, and appointment of
employees[,]'...trump conflicting state laws."
Appel v. Spiridon (2nd Cir
07/02/2008)
http://caselaw.findlaw.com/data2/circs/2nd/065723p.pdf
Based on an equal protection
"class of one" claim, Appel obtained an injunction enjoining the
public employer from requiring her to submit to a psychological examination
as a condition of employment. The
court reversed, based on the United States' Supreme Court's disavowal (in
Engquist v. Oregon Department of Agriculture, 128 S.Ct. 2146 (2008)) of such
claims in the public employment context.
United Steel Union v. TriMas Corp
(7th Cir 07/03/2008)
http://caselaw.findlaw.com/data2/circs/7th/071688p.pdf
The union filed suit under the
Labor-Management Relations Act (LMRA), seeking to compel arbitration of a
dispute relating to a "neutrality agreement" between the parties. The trial court granted summary judgment in favor of the
union. The 7th Circuit
affirmed, concluding that "the district court was correct in finding
that the dispute was covered by the language of the [neutrality agreement's]
arbitration clause and in leaving consideration of ... extrinsic evidence to
the arbitrator."
Clements v. Serco Inc (10th Circ
07/01/2008)
http://caselaw.findlaw.com/data2/circs/10th/064316p.pdf
Clements sued the employer,
asserting a claim for unpaid overtime compensation under the Fair Labor
Standards Act (FLSA). The trial
court granted summary judgment in favor of Clements.
The 10th Circuit affirmed. Clements
was a civilian military recruiter who worked for a private recruiting
company under contract with the government.
The court concluded that Clements did not fall within the FLSA's
"outside salesman" exemption, reasoning that civilian military
recruiters "engaged in promotional work, paving the way for someone
else - the United States Army - to make the sale."
The court also affirmed the trial court's calculation of unpaid wages
under the "fluctuating workweek" method.
Griffin v. Yankee Silversmith
(Connecticut Ct App 07/08/2008)
http://www.jud.state.ct.us/external/supapp/Cases/AROap/AP109/109ap324.pdf
Griffin sued the employer, asserting
a state law claim that she was discharged in retaliation for complaining
about sexual harassment. The
employer prevailed after a jury trial.
The court affirmed, concluding that the jury was appropriately
instructed as to the definition of sexual harassment.
Police Benevolent Assoc v. New York
State Police (New York 07/01/2008)
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_05957.htm
The police officers' union filed
suit, claiming that the public employer's denial of counsel (or union
representation) during "critical incident reviews" violated Civil
Service Law Section 75(2) and the officers' constitutional right to counsel. The trial court granted summary judgment in favor of the
union, but the appellate court below reversed.
The court affirmed, concluding that the union waived any right of
representation the officers might have had during critical incident reviews
by not addressing the issue in the parties' collective bargaining agreement.
East Liverpool Ed Assoc v. East
Liverpool Sch Dist (Ohio Ct App 06/30/2008)
http://www.sconet.state.oh.us/rod/docs/pdf/7/2008/2008-ohio-3327.pdf
The public school teachers' union
sought a declaratory judgment finding Ohio's School District Fiscal
Emergency statute (R.C. Chapter 3316) unconstitutional.
The union also sought to void the Ohio State Auditor's declaration of
a fiscal emergency. The trial
court granted judgment as a matter of law in favor of the public school
district and other defendants. The
court affirmed. The court
reasoned that 1) it recently rejected nearly identical constitutional
challenges to the provisions at issue; and 2) R.C. 3316.03(E) "clearly
provides that only the school district board of education can appeal the
Auditor's determination as to a fiscal emergency."
Lindeman v. South-Western Sch Dist
(Ohio Ct App 06/30/2008)
http://www.sconet.state.oh.us/rod/docs/pdf/10/2008/2008-ohio-3303.pdf
Lindeman's position with the public
school district was cut in a reduction-in-force.
He sued the employer, asserting (among other things) a claim for
breach of contract. The trial
court granted summary judgment in favor of the employer.
The court affirmed, concluding that Lindeman failed to exhaust his
administrative remedies.
Thomas-Abel v. Ohio Dept of Rehab
(Ohio Ct App 06/30/2008)
http://www.sconet.state.oh.us/rod/docs/pdf/10/2008/2008-ohio-3302.pdf
Thomas-Abel was placed on
involuntary disability separation from her job as a parole officer.
The trial court determined that Thomas-Abel's due process rights had
been violated. The court
affirmed, agreeing with the trial court's conclusion that Thomas-Abel's due
process rights were violated because "she was first promised and then
denied the opportunity to call witnesses, present testimony, and refute the
[relevant psychological evaluation that led to her separation]."
Reininger v. Texas Building Commn
(Texas Ct App 07/03/2008)
http://www.3rdcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=16974
Reininger sued the public employer,
alleging that she was discharged in violation of the Texas Whistleblower
Act. The trial court granted
summary judgment in favor of the employer.
The court affirmed, concluding that Reininger produced no evidence
that she made a report to an entity she "could have believed in good
faith" was an appropriate law enforcement authority.
Bartosh v. Sam Houston State Univ
(Texas Ct App 06/30/2008)
http://www.6thcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=9346
Bartosh sued the employer, asserting
state law claims for religious discrimination (disparate treatment and
hostile work environment harassment) and retaliation.
The trial court dismissed all of Bartosh's claims.
The court reversed as to the disparate treatment claim, and otherwise
affirmed. The court concluded
that 1) Bartosh's disparate treatment claim was within the scope of the
complaint she filed with the Texas Commission on Human Rights (TCHR), but
the hostile work environment claim was not; and 2) Bartosh failed to produce
sufficient evidence of causation in support of her retaliation claim.
Milwaukee Bd of Sch Directors v.
Wisconsin Empl Rel Commn (Wisconsin Ct App 07/01/2008)
http://www.lawmemo.com/docs/wi/milwaukee.pdf
The Wisconsin Employment Relations
Commission (WERC) determined that the public employer violated the Municipal
Employment Relations Act (MERA) by prohibiting its teachers from placing
signs in certain locations customarily occupied by students.
The trial court upheld that decision.
The court affirmed, concluding that WERC didn't err in determining
that the placement of signs in classrooms constituted "lawful concerted
activity" protected under the MERA.
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