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Employment Law Memo
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Employment Law Memo 03/03/2008
by LawMemo - First in Employment Law

*** Featured Cases ***

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*** Featured Cases ***

DC - Trial court had subject matter jurisdiction over non-discrimination claims after 120 days under 5 USC Section 7702(e)(1)(B).

Ikossi v. Dept of Navy (DC Cir 02/29/2008)
http://caselaw.lp.findlaw.com/data2/circs/dc/055456a.pdf

Ikossi sued the employer for violation of Title VII, the Age Discrimination in Employment Act (ADEA), the Family and Medical Leave Act (FMLA), and the Civil Service Reform Act (CSRA). The trial court granted summary judgment to the employer. The DC Circuit affirmed in part and reversed in part.

The question presented on this appeal of a "mixed case" (adverse personnel actions appealable to the Merit System Protection Board (MSPB) where discrimination played a role) was whether the trial court had subject matter jurisdiction over non-discrimination claims under 5 USC Section 7702(e)(1). The trial court ruled that since the MSPB failed to issue a decision within 120 days, it had jurisdiction over the discrimination claims; but it did not have subject matter jurisdiction over the non-discrimination claims until the MSPB issued a final decision. The court concluded the trial court erred. The court found that the "mixed case" was to be treated as a unit, which was consistent with the statutory language and legislative history of section 7702. The court followed the 6th and 11th circuits and held that the trial court had jurisdiction over non-discrimination claims when agencies fail to issue a decision within the 120 day time line established by section 7702(e)(1)(B).

8th - "White people teach black kids better" was direct evidence of discriminatory attitude.

King v. Hardesty (8th Cir 02/29/2008)
http://caselaw.lp.findlaw.com/data2/circs/8th/064163p.pdf

King (African-American teacher) sued the employer pursuant to 42 USC Sections 1981 and 1983 alleging racial discrimination and retaliation. The trial court granted the employer's motion for summary judgment. The 8th Circuit affirmed in part and reversed in part.

The court concluded that the trial court erred in not applying the direct evidence analysis of mixed-motive cases under the Price Waterhouse test (if there was direct evidence of race discrimination, the burden rested with the employer to show that it more likely than not would have made the same decision without consideration of the illegitimate factor). While many of the alleged racial comments fell into the "stray remark" category, the court found that the employer's statement to King that "white people teach black kids ... better than someone from their own race," was evidence that may be viewed as directly reflecting the employer's alleged discriminatory attitude.

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5th - Damage award vacated in part in disparate-impact racial discrimination case.

McClain v. Lufkin (5th Cir 02/29/2008)
http://caselaw.lp.findlaw.com/data2/circs/5th/0541417cv0p.pdf

McClain sued the employer for violation of Title VII and 42 USC Section 1981 alleging disparate-impact racial discrimination in initial assignment of newly hired black employees and in promotions. The trial court found in favor of McClain. The 5th Circuit found that exhaustion of remedies before the Equal Employment Opportunity Commission had been met except for the foundry division of the employer with respect to the initial hiring claim. The court could not say that the trial court's finding of subjective decision making in promotions amounted to clear error. The court concluded that there was no indication that the trial court applied incorrect legal principles in determining that the employer's practices for promotion were incapable of separation.

7th - Employer took reasonable steps to stop harassment.

Lapka v. Chertoff (7th Cir 02/29/2008)
http://caselaw.lp.findlaw.com/data2/circs/7th/064099p.pdf

Lapka sued the employer for violation Title VII alleging hostile work environment and retaliation. The trial court granted the employer's motion for summary judgment. The 7th Circuit  affirmed. The issue on appeal was whether the employer was negligent in the supervision of a co-worker. The court found that the employer took reasonable steps to stop the harassment.

7th - Employer did not proffer legitimate reason for employment decision under ADEA.

Duncan v. Fleetwood Motor Homes (7th Cir 02/29/2008)
http://caselaw.lp.findlaw.com/data2/circs/7th/071284p.pdf

Duncan sued the employer for violation of the Age Discrimination in Employment Act (ADEA) alleging he was forced to give up his job as a material handler. The trial court granted the employer's motion for summary judgment. The 7th Circuit reversed. The court found that the explanation the employer gave for taking Duncan's job could not be characterized as legitimate: the employer did not dispute that Duncan met the legitimate performance expectations, yet it argued Duncan was unable to meet the physical demands of the material handler job. The court also found that Duncan produced sufficient evidence to call into question the employer's honesty in its explanation for taking away the material handler job.

IA - Deputies in civil service position could challenge discharge only through appeal to civil service commissions, not through arbitration provisions of CBA.

Kucera v. Baldazo (Iowa 02/29/2008)
http://www.lawmemo.com/docs/ia/kucera.pdf

The issue on appeal was whether a deputy county sheriff holding a classified civil service position may challenge his discharge under the grievance and arbitration provisions of the collective bargaining agreement (CBA), or only through an appeal to the employer's civil service commission. The trial court found relief may be granted only by the civil service commission. The Iowa Supreme Court affirmed. The court agreed with the trial court that Iowa Code chapter 314A constituted the exclusive remedy for deputies in civil service positions and that section 341A.12 provided the civil service commissions as the exclusive remedy.

TX - Hearing examiner did not abuse his authority in reducing length of indefinite suspension for drug use.

City of Lancaster v. Clopton (Texas Ct App 02/29/2008)
http://www.5thcoa.courts.state.tx.us/files/05/recent/070210F.HTM

The employer petitioned for a declaratory judgment seeking to set aside a hearing examiner's award reinstating firefighter Clopton. The trial court granted summary judgment in favor of Clopton. The Texas Court of Appeal affirmed. The court stated that the evidence before the hearing examiner contained no evidence of a zero-tolerance policy or that illegal drug usage mandated indefinite suspension, and that Clopton was not informed that his admitted drug use in his employment application more than ten years ago was his first chance. The court concluded the summary judgment evidence showed the hearing examiner did not abuse his authority.

 

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