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Employment Law Memo
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Employment Law Memo 02/25/2008
by LawMemo - First in Employment Law

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5th - Court followed 7th Circuit's application of Garcetti.

Davis v. McKinney (5th Cir 02/21/2008)

Davis sued the employer under 42 USC Section 1983 alleging retaliatory discharge in violation of the First Amendment. The trial court denied the employer's motion for summary judgment including the portion requesting qualified immunity. The 5th Circuit affirmed in part and reversed in part that portion of the order denying qualified immunity.

The court found the 7th Circuit's application of the new test established in Garcetti v. Ceballos, 126 S Ct 1951 (2006) persuasive: "Garcetti ... holds that before asking whether the subject matter of particular speech is a topic of public concern, the court must decide whether the plaintiff was speaking 'as a citizen' or as part of her public job. Only when government penalizes speech that a plaintiff utters 'as a citizen' must the court consider the balance of public and private interests, along with the other questions posed by Pickering [v. Board of Educ., 391 US 563 (1968)] and its successors,...." Mills v. City of Evansville, 452 F3d 646 (7th Cir 2006). The court followed the 9th Circuit's approach in Freitag v. Ayers, 468 F3d 528 (2006) and analyzed Davis's complaint letter into those complaints up the chain of command at her workplace about her job duties as an auditor which were made as an employee, and those complaints to persons outside the work place in addition to raising them up the chain of command which were made as a citizen. The court remanded for the trial court's consideration of whether the speech raised as a citizen involved matters of public concern.

CA - Trial court improperly denied motion for attorney fees based Code of Civil Procedure section 1033 in FEHA suit.

Chavez v. City of Los Angeles (California Ct App 02/22/2008)

Chavez filed a motion for attorney fees under the Fair Employment and Housing Act (FEHA) in the amount of $871,000.00 in a statutory retaliation action case where the jury awarded $11,500.00 to Chavez. The trial court denied the motion based on the Code of Civil Procedure section 1033, subdivision (a) because the recovery was below the statutory minimum. The California Court of Appeal reversed. In the court's view, section 1033 did not apply to actions brought under FEHA. The court stated that the statutory fee provisions of the FEHA were meant to ease the burden on plaintiffs of limited means so they could bring meritorious suits to vindicate key public policies. The court distinguished Steele v. Jensen Instrument Co., 59 Cal App 4th 326 (1997) because the employer in this case made no offer to comprise and Chavez prevailed on one cause of action against his employer and one individual.

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2nd - Grievance procedures of CBA were adequate to remedy imposition of deferred pay under Due Process Clause.

Adams v. Suozzi (2nd Cir 02/22/2008)

Adams sued the employer for imposition of a "lag payroll procedure" defined as ten days of pay deferred over ten bi-weekly pay periods to be returned at separation from employment. Adams alleged violation of the Due Process Clause of the Fourteenth Amendment, the Contracts Clause, and other claims. The trial court granted the employer's motion for summary judgment on Adams' substantive due process and contracts clause claims, and granted Adams' motion for summery judgment on the procedural due process claim. The 2nd Circuit reversed on the procedural due process claim. The court found no violation of the Due Process Clause because the employer provided pre-deprivation notice of the lag payroll and the grievance procedures of the collective bargaining agreement (CBA) were adequate to remedy any potential right Adams possessed not to have his pay lagged.

8th - RLA's arbitration provision divested federal court of jurisdiction over ERISA claims.

Hastings v. Wilson (8th Cir 02/22/2008)

Hastings, an airline employee, sued the employer for violation of ERISA alleging breach of fiduciary duty. The trial court granted the employer's motion to dismiss. The 8th Circuit affirmed. One issue on appeal was whether the Railway Labor Act's (RLA) mandatory arbitration provision (45 USC Section 184) divested federal courts of subject matter jurisdiction. The court found that: (1) the agreements between the employer and the union constituted collective bargaining agreements (CBA) and the pension plan was maintained pursuant to them; (2) because the breach of fiduciary duty claims involving the pension plan required an interpretation and application of the CBAs, they constituted minor disputes within the exclusive jurisdiction of the RLA adjustment board: and (3) the pamphlets distributed by the employer indicating plan participants could file suit in federal court did not circumvent the RLA's arbitration requirement.

CA - Union awarded damages for employee's breach of fiduciary duty in violation of LMRDA.

SEIU v. Colcord (California Ct App 02/22/2008)

The union sued Colcord for breach of fiduciary duty in violation of the Labor Management Reporting and Disclosure Act (LMRDA) and common law, for fraudulent concealment, for unfair business practices, and for other claims alleging Colcord secretly organized a decertification campaign while employed as a field representative of the union. The trial court awarded compensatory damages (salary and benefits and decertification campaign costs) and punitive damages to the union. The California Court of Appeal affirmed in part and reversed in part. The court found the disgorgement of salary and benefits was an appropriate remedy in this case as restitution for the tortious wrong Colcord committed against his union employer. The court agreed with Colcord that the election cost award was speculative and could not be sustained.


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