Keller v. Tuesday Morning (California Ct App unpublished 11/04/2009) Keller sued on behalf of a class of hundreds of store managers who alleged that the employer violated California wage and hour laws by misclassifying them as exempt, and denying them overtime payments. The trial court first denied certification of the class, then granted certification, then decertified the class. The California Court of Appeal upheld the decertification, finding that the trial court did not abuse its discretion.

Although there was a common issue as to whether the managers were improperly classified as exempt, individualized inquiries predominated as to liability and damages. The employer operates 80 stores in California, varying in size and located in diverse communities. The evidence showed a "wide disparity in store location, size, configuration, management duties and styles." There will need to be individualized inquiries into the amount of time each manager spent performing exempt duties and exercising discretion.

Albunio v. City of New York (New York App Div 11/05/2009) Albunio and other public employees sued the employer, asserting retaliation claims under the New York City Human Rights Law (NYCHRL). They prevailed after jury trials. The court affirmed, concluding that the jury verdicts were supported by sufficient evidence.

Murray v. Epic Energy Inc (Texas Ct App 11/05/2009) Murray was discharged from employment. He demanded arbitration, asserting that he wasn't discharged "for cause" and was thus entitled to severance benefits under the terms of his employment contract. Prior to the arbitration hearing, the employer filed suit for breach of non-disclosure and non-competition provisions in the employment agreement, misappropriation of trade secrets, and related claims. The trial court determined that it had personal jurisdiction over Murray, and enjoined the pending arbitration proceedings. On interlocutory appeal, the court affirmed as to jurisdiction, but dissolved the temporary injunction enjoining arbitration. The court concluded that the trial court erred when it determined that the employer would suffer imminent, irreparable harm if the arbitration concluded prior to the litigation. The court noted that the arbitration involved matters relating to Murray's discharge, and the litigation involved allegations of conduct occurring after Murray's discharge.

Ressler v. Ohio Dept of Tran (Ohio Ct App 11/05/2009) Ressler appealed the trial court's decision affirming an order of the State Personnel Board of Review (SPBR). That order granted the public employer's motion to dismiss Ressler's whistleblower claim. The court affirmed, concluding that the trial court didn't err in affirming the SPBR's dismissal of Ressler's claim for lack of subject matter jurisdiction. The court concluded that the SPBR lacked subject matter jurisdiction because Ressler did not make a "report" within the meaning of that term under R.C. 124.341. The court noted that Ressler denied authoring the document she was attempting to rely upon as a "report," and determined that her mere transmission of that document was insufficient.

Donini v. Fraternal Order of Police (Ohio Ct App 11/02/2009) The public employees' union appealed the trial court's judgment vacating a grievance arbitration award rendered in its favor. The court affirmed, concluding that 1) the employer's motion to vacate the arbitration award was timely filed under R.C. 2711.13; and 2) the parties' collective bargaining agreement did not allow for arbitration of a probationary employee's removal, and the arbitrator exceeded his authority in concluding otherwise.

Perlan Therapeutics v. Superior Court (California Ct App 11/04/2009) Perlan Therapeutics brought an action against two former employees claiming misappropriation of trade secrets. Perlan sought discovery against the employees, and filed a statutorily-required trade secret statement. The California statute requires a plaintiff suing for misappropriation of its trade secrets to identify with "reasonable particularity" the purported trade secrets which allegedly have been misappropriated "before commencing discovery relating to the trade secret[s]." The trial court found that the statement lacked the necessary particularity, and granted the employees an order precluding discovery. The California Court of Appeal affirmed.

Finding that de novo review was not the proper standard, the court held that the trial court did not abuse its discretion. The court pointed out that Perlan's trade secret statement lacked clarity, did not segregate its alleged trade secrets, did not clearly explain how its secrets differed from publicly available knowledge, included a large amount of "surplusage," and referenced hundreds of pages of extra documents.

Christie v. DEQ State of Mt (Montana 11/03/2009) Christie was discharged from his state job as a staff attorney for allegedly falsifying his time records. A hearing examiner recommended reinstatement, based on his determination that there lacked good cause to discharge Christie. The director of the agency where Christie worked concluded that the hearing examiner erred, and found that just cause existed because Christie intentionally falsified his time records. The trial court affirmed the director's decision.

The court affirmed, rejecting the arguments that the director improperly substituted his judgment for that of the hearing examiner, and that Christie was entitled to progressive discipline. The court agreed with the trial court's determination that substantial evidence existed in the record "upon which [the director] could determine as a matter of law that Christie's dishonesty required immediate termination."

City of Cincinnati v. State Emp Rel Bd (Ohio Ct App 11/03/2009) The municipal employer appealed the trial court's judgment affirming an order by the State Employment Relations Board (SERB). The order at issue granted the union's request to represent the employer's assistant fire chiefs in collective bargaining. The court affirmed, concluding that the trial court didn't abuse its discretion in concluding that "substantial, reliable, and probative evidence" supported SERB's order. The court reasoned that substantial, reliable, and probative evidence supported SERB's determination that the assistant fire chiefs were not "management level employees" under R.C. 4117.01(L).

Garner v. Civil Service Comm Nashville (Tennessee Ct App 11/02/2009) Garner was discharged from his job as a police officer for allegedly lying to his supervisor about the reason he was late for work (he called his supervisor and told him he was delayed because of heavy traffic, but got pulled over for going 85 miles an hour during the course of that conversation). His discharge was based on the making of a false report "of an official nature." A civil service commission upheld the discharge decision, but the trial court reversed. The court reversed, affirming the commission's determination that Garner's call constituted a report "of an official nature" for purposes of the relevant provision of the employer's policies (General Order 04-05, Art. VIII (S)).

HB Rentals v. Bledsoe (Louisiana Ct App 11/04/2009) HB Rentals sued the former employee, Bledsoe, for violation of the non-compete and non-solicitation provisions. The trial court granted a partial summary judgment in favor of Bledsoe dismissing the employer's demands for injunctive relief and damages. The Louisiana Court of Appeal affirmed. Bledsoe went to work as an employee of a competitor.

The court stated that under the version of LaRS 23:921 in effect at the time the agreement was signed, Bledsoe was not barred from employment by a competitor in which he held no equity interest. The court found the non-solicit overbroad where it had no geographic limitations.

City of Alexandria v. Alexandria Civil Serv Comm (Louisiana Ct App 11/04/2009) The Alexandria Civil Service Commission appealed the trial court judgment reversing its decision to reprimand an employee for engaging in political activity. The Louisiana Court of Appeal affirmed. The employee was reprimanded for testifying under subpoena about utility usage in a home of a political candidate. The court stated it was unreasonable to discipline an employee for obeying a court order.

Satterlee v. Lumberman's Mutual (Montana 11/03/2009) Satterlee's workers compensation benefits (based on permanent total disability) terminated once he became eligible for Social Security Retirement Insurance. He claimed that this violated the equal protection clause and the due process clause of the Montana constitution. The Montana Supreme Court upheld the constitutionality of the Montana Workers Compensation statute which required this outcome.

The court applied a rational basis test to Satterlee's equal protection claim, finding that there was no fundamental right and no suspect classification. In finding that the statute was rational, the court distinguished an earlier case which held that a similar termination of benefits for permanent partial disability was an unconstitutional discrimination based on age. The purpose of permanent total disability benefits is to assist the worker for his or her work life, and the onset of Social Security benefits marks the end of a person's work life. The court also found no violation of substantive due process.

The DISSENT would apply "rational scrutiny with bite," and find that using Social Security eligibility as a proxy for retirement was an illegitimate means of protecting the economic viability of the workers compensation system.

Liberty Mutual Ins Co v. Hurlbut (2nd Cir 11/04/2009) The 2nd Circuit held that federal courts must abstain from exercising jurisdiction in a case involving the constitutionality of New York's Workers Compensation Act.

Several insurance carriers sued in federal district court seeking to enjoin operation of amendments made to the Act in 2007. These amendments expanded the requirement that insurance carriers and self insured employers make payments to a trust fund, and revised the procedures for settling claims. The insurance carriers argued that these revisions violate the federal constitution's contracts clause, due process clause, and equal protection clause.

The court held that the district court should abstain from exercising its jurisdiction, and allow the state courts and state administrative agency to resolve the issues. Abstention is appropriate here because "federal court review would work a disruption of [the] state's purpose to establish a coherent public policy on a matter involving substantial concern to the public."

City of San Antonio v. Gonzalez (Texas Ct App 11/04/2009) Gonzalez sued the employer, asserting a state law gender discrimination (discriminatory discharge) claim. Gonzalez prevailed after a jury trial. The court reversed, concluding that Gonzalez produced no evidence that he was treated differently than a similarly situated female employee.

The court rejected Gonzalez' comparator evidence, reasoning that the misconduct committed by Gonzalez' comparator was not of comparable seriousness to that committed by Gonzalez.

Steele v. Mayoral (Oregon Ct App 11/04/2009) Steele sued the public employer, asserting state law claims for sexual harassment and negligence (negligent supervision and retention), as well as a Title VII claim for retaliation (hostile environment retaliatory discharge and retaliatory constructive discharge). The trial court granted summary judgment in favor of the employer as to part of Steele's sexual harassment claim, and granted summary judgment in favor of the employer as to the negligence and retaliation claims in their entirety. The court declined to consider the sexual harassment claim, reversed as to the negligence claim, and affirmed as to the retaliation claim.

The court concluded that 1) it lacked jurisdiction to consider the partial grant of summary judgment on the harassment claim, since that claim was not disposed of in its entirety; 2) a reasonable juror could conclude that the employer violated its duties under relevant rules and statutes by failing to investigate and discipline Steele's alleged harasser prior to the date he sexually assaulted Steele; and 3) Steele's retaliation claim failed because she was not subjected to conduct sufficient to constitute actionable retaliatory harassment under Title VII, and she was not constructively discharged.

Harps v. TRW Automotive (6th Cir unpublished 11/03/2009) Several retired employees sued their former employer alleging that the employer was obligated to provide lifetime medical benefits, without reductions, to retirees. The suit alleged violation of LMRA Section 301 and ERISA Section 502. The 6th Circuit, in an "unpublished" opinion, upheld the trial court's dismissal for failure to state a claim.

The court found that a collective bargaining agreement (CBA) between the employer and the UAW was unambiguous, and that it did not impose any health care obligations beyond the expiration date of the CBA. The CBA said, "This clause shall not be construed to convey any rights to those beyond the term of this agreement," and it defined "term" as referring to the expiration date. In addition, the court found that a shutdown agreement, signed by the employer and the union in connection with the shutdown of a plant, did not plausibly suggest an intent to provide vested retiree medical benefits.

Hitachi Inc v. Bowler (Massachusetts 11/04/2009) The employer sued Bowler for unjust enrichment alleging retirement money was mistakenly paid to Bowler. The trial court granted Bowler's motion to dismiss. The Massachusetts Supreme Judicial Court affirmed.

The court was asked to determine whether ERISA preempted the unjust enrichment action. (1) The court examined Congress's intent to determine whether a claim for unjust enrichment "relates to" the employer's benefit plan. The court identified the following issues for resolution: (a) whether the employer could demand interest on the overpayment, (b) whether the employer should indemnify Bowler for tax liability incurred because of the overpayment, and (c) whether the employer should reimburse Bowler's attorney and accountant fees. The court pointed out states would resolve these issues with different results. The court noted that the employer's action arose from the actual administration of the plan. (2) The court agreed with Bowler's argument that the unjust enrichment action in state court constituted an "alternative enforcement mechanism." The court rejected the employer's argument that a restitution claim under section 1132(a)(3)(B) required an ill-gotten gain, stating the law had shifted in this area and it was a question for a federal court to decide. The court concluded the unjust enrichment claim was preempted by the threat of inconsistent regulation relating to the administration of ERISA plans and would constitute an "alternative enforcement mechanism."

United States v. Rosenbaum (6th Cir 11/03/2009) Rosenbaum and others were principals in a maintenance services company that employed hundreds of illegal aliens, paid them in cash, and failed to pay relevant federal taxes. He entered a plea of guilty to conspiracy to defraud the United States and harbor illegal aliens, and to harboring over 100 illegal aliens. The trial court sentenced him to 120 months in prison. The 6th Circuit affirmed.

The sentence was at the top of the Federal Sentencing Guidelines. The trial court considered all of Rosenbaum's mitigating arguments. A lower sentence was permissible, but the trial court's logic was reasonable and a lower sentence was not required.

Swanson v. Hearst Corp (5th Cir 11/03/2009) Swanson sued the administrator of her employer's long-term disability plan under the Employee Retirement Income Security Act (ERISA), challenging the plan's decision to terminate her benefits. The trial court granted summary judgment in favor of the plan administrator. The 5th Circuit affirmed, concluding that Swanson failed to exhaust her administrative remedies. The court determined that a letter sent by Swanson's attorney was not sufficient to constitute an administrative appeal within the applicable 180-day limitations period, and that the letter was only an expression of "an intention to appeal." The court rejected the argument that the plan administrator was estopped from invoking Swanson's failure to exhaust administrative remedies as an affirmative defense.

Davis v. Biloxi Public Sch Dist (Mississippi Ct App 11/03/2009) Davis sued the public employer, asserting various state law claims as well as federal claims under 42 USC Section 1983. The claims related to Davis' discharge from his job as a teacher's aide at a public school, and many of the same legal and factual issues were raised in prior litigation. The trial court dismissed the case. The court affirmed, concluding that several of Davis' claims were barred under the doctrines of collateral estoppel and res judicata, and the remaining claims were barred under the applicable statute of limitations.

VanCleave v. Reelfoot Bank (Tennessee Ct App 10/30/2009) VanCleave sued the employer, a bank, under common law and for violation of the Public Protection Act (PPA) alleging retaliatory discharge for refusing to open an account that was contrary to applicable statutes and regulations. The trial court granted the bank's motion for summary judgment. The Tennessee Court of Appeals reversed.

A customer asked VanCleave to open an account with a check payable to the customer's employer in the customer's employer's name with the customer's employer's social security number, where the customer's signature would be required on any checks written on the account. The customer declined to sign a signature card, and VanCleave refused to open the account and was subsequently discharged.

Contrary to the trial court, the court found that the Bank Secrecy Act's (BSA) regulations (31 CFR section 103.34(b)(1)) required the bank to retain an original or copy of the document granting signature authority and information verifying the identity of the signer, if this was the bank's standard practice; which it arguably was. The court also noted that the BSA and its regulations were concerned with weighty public issues involving money laundering and tax evasion. The court stated a trier of fact could reasonably conclude that this regulation would have been violated had the account been opened in the manner the customer requested. The court rejected the trial court's ruling, that VanCleave was required to show an intent to protect the public as opposed to herself or the bank, in a case alleging retaliatory discharge for refusal to participate in illegal activities.

Anton v. SBC Global (6th Cir unpublished 10/29/2009) Two former sales representatives secured a large customer contract, and a dispute arose as to how they would be compensated. The sales representatives claimed they were owed sales commissions under an implied-in-fact contract. The employer agreed that there was a contract, but disputed the terms and the amounts due. A jury returned a verdict of $3,191,400 for one and $3,510,540 for the other.

In an "unpublished" opinion, the 6th Circuit rejected the employer's argument that a reasonable jury would have applied the employer's interpretation of the contract. The evidence must be viewed in a light most favorable to the employees. After a thorough review of the evidence, the court concluded that there was sufficient evidence to support the verdict.

McCullough v. AEGON USA Inc (8th Cir 11/03/2009) McCullough sued his former employer's defined-benefit pension plan under 29 USC Section 1132(a)(2) of the Employee Retirement Income Security Act (ERISA), alleging that various plan fiduciaries breached their fiduciary duties to the plan and engaged in prohibited transactions. The trial court granted summary judgment in favor of the plan. The 8th Circuit affirmed.

The employer's pension plan was substantially overfunded during the relevant time period. In Harley v. Minnesota Mining & Manufacturing Co., 284 F.3d 901 (8th Cir 2002), the 8th Circuit held that "Section 1132(a)(2) does not permit a participant in a defined-benefit plan to bring suit claiming liability under Section 1109 for alleged breaches of fiduciary duties when the plan is overfunded." Section 1109 subjects ERISA fiduciaries to personal liability for breaches of their fiduciary duty. The court concluded that Harley is still good law, and rejected the proposition that it was inconsistent with an intervening decision by the United States Supreme Court in Sprint Communications Co. v. APCC Services, Inc., 128 S.Ct. 2531 (2008). Applying Harley to both of McCullough's claims, the court affirmed.

Rasenack v. AIG Life Ins Co (10th Cir 11/02/2009) Rasenack sued the administrator of his employer's disability plan under the Employee Retirement Income Security Act (ERISA), challenging the administrator's denial of his claim for benefits. The trial court granted summary judgment in favor of the plan administrator, based on application of an "arbitrary and capricious" standard of review. The 10th Circuit reversed.

The plan administrator failed to timely process Rasenack's claim and administrative appeal, finally issuing a decision on the administrative appeal only after Rasenack filed suit. The administrator was vested with discretionary authority under the terms of the plan, which generally entitles a plan administrator to a deferential standard of judicial review. However, in Gilbertson v. Allied Signal, Inc., 328 F.3d 625 (10th Cir 2003), the 10th Circuit held that a plan administrator loses that entitlement when the administrator's delay in deciding a claim results in it being "deemed denied." Under Gilbertson, "not only must the administrator be given discretion by the plan, but the administrator's decision in a given case must be a valid exercise of that discretion."

The court held that Gilbertson is still good law, and was not abrogated by the 2002 amendments to ERISA regulations (in particular, 29 CFR Section 2560.503-1(k)(1)(2002)). Applying Gilbertson, the court held that the administrator's decision should have been reviewed de novo by the trial court. The court remanded for reconsideration by the trial court under that standard. The court declined to remand to the plan administrator, noting "[the administrator] had its chance to exercise its discretion and it failed to do so...."

Schachter v. Citigroup Inc (California 11/02/2009) Citigroup offered a voluntary employee incentive compensation plan that provides employees with shares of restricted company stock at a reduced price in lieu of a portion of that employee's annual cash compensation. Employees agree that, should they resign or be terminated for cause before their restricted shares of stock vest (two years after the purchase date), they would forfeit the stock and the portion of cash compensation they directed be paid in the form of the restricted stock. Schachter enrolled in the plan and then voluntarily terminated his employment prior to the vesting dates.

Schachter sued, claiming that the plan's forfeiture provision violated the California Labor Code sections which require that earned wages be paid promptly upon resignation, and prohibit agreements that purport to circumvent that requirement. The California Supreme Court upheld summary judgment for the employer.

The court found that as an at-will employee, Schachter was free to renegotiate his compensation at any time so that it would be part in cash and part in incentive compensation. Because his right to the stock never vested, it was not something that he "earned," so he has no claim under Labor Code Sections 201 or 202. The court specifically rejected Schachter's claim that his incentive compensation vested on a pro rata basis (such as happens with vacation pay). Because the stock was never earned, the agreement was not an attempt to circumvent the statute.

Sollis v. Local 234, TWU (3rd Cir 11/02/2009) The Secretary of Labor, on behalf of union member Johnson, sued the union for violation of the Labor Management Reporting and Disclosure Act (LMRDA) alleging wrongful disqualification of Johnson's slate of candidates for election as union officers. The trial court granted the union's motion to dismiss for lack of subject matter jurisdiction (Johnson's administrative complaint to the Secretary of Labor was not timely). The 3rd Circuit reversed.

Johnson filed a pre-election protest and a post-election protest. The administrative complaint to the Secretary was untimely with respect to the pre-election protest, but timely regarding the post-election protest. The trial court found that Johnson had just one opportunity to protest under the union's constitution, which in this case was the pre-election protest; alternatively, 3rd Circuit precedent required that timeliness be measured from the pre-election protest. Interpreting the union's constitution regarding election protests, the court found the constitution ambiguous: (1) a "complaint" need not mean "just one election protest;" (2) the provision did not specify whether protests must be filed pre- or post-election; and (3) no where did the union constitution bar a union member from filing a post-election protest because he had already filed a pre-election protest. Construing the union constitution liberally in favor of the rank and file members like Johnson, the court found the language of the constitution supported Johnson's interpretation as reasonable. The court distinguished the precedents relied on by the trial court, and reiterated that ambiguous constitutional provisions must be construed broadly in favor of complaining union members, whose interpretations need only be reasonable under the circumstances.

Steele v. Mara Enterprises, Inc (Ohio Ct App 10/29/2009) Steele sued the employer for promissory estoppel, wrongful discharge, and other claims. The trial court granted the employer's motion for summary judgment. The Ohio Court of Appeals affirmed.

Steele was a shareholder, director, and employee of the employer, and in addition was the trustee of a trust which was the majority shareholder of the employer. At a shareholder meeting all directors were replaced and Steele was discharged. (1) A promise that Steele would have a job for as long as the founder's wife was alive was not a clear and unambiguous promise for continued employment for a specific period. The court found that Steele was unable to create a genuine issue of material fact concerning the first element of a promissory estoppel claim. (2) Steele argued that his discharge violated a recognized public policy of a heightened fiduciary duty between majority and minority shareholders, where he was a shareholder, director, and employee of a closely held corporation. The court pointed out that the corporation did not owe a fiduciary duty, the majority shareholder did; Steele sued only the corporation, not the majority shareholder.

New Process Steel v. NLRB (Certiorari granted 11/02/2009) The NLRB has had only two Members (instead of the normal five Members) since the end of 2007. Near the end of 2007, there were still four Members, and they delegated their powers to a group of three. Everybody knew that only two of those three would be left at the end of the year.

The US Supreme Court has granted certiorari to review the judgment of the 7th Circuit, which held that the two-Member NLRB had the statutory authority to hear cases and issue orders regarding unfair labor practice charges.

Official question presented: "Does the National Labor Relations Board have authority to decide cases with only two sitting members, where 29 U.S.C. § 153(b) provides that "'three members of the Board shall, at all times, constitute a quorum of the Board'?"

Fort Worth Transportation v. Thomas (Texas Ct App 10/29/2009) Thomas sued the employer for breach of the CBA contract and other claims. The trial court granted Thomas's motion for summary judgment. The Texas Court of Appeals affirmed.

Thomas argued that the attendance policy in the operator handbook was part of the CBA and did not allow the employer to count time on (Family and Medical Leave Act) FMLA leave as an absence. The court found that the CBA did not define absence, the operator handbook excluded FMLA leave as an absence, the operator handbook referenced the CBA and was to be construed in accordance with the CBA, the operator handbook was a subsequent document to the CBA, and the operator handbook provided it was not an employment contract. Under the circumstances of this case, the court determined that the CBA and the operator handbook related to the same transaction because they set forth the terms and conditions of Thomas's employment. The court held that the CBA must be interpreted to exclude FMLA leave when calculating whether Thomas was absent from work for more than a year.

The DISSENT argued that a unilateral, nonbargained employee handbook could not create contractual rights and alter the unambiguous language of a CBA where the handbook specifically and plainly stated that it could not do so.

Garner v. State Dept of Education (Hawaii Ct App 10/30/2009) Garner sued the employer alleging underpayment of substitute teacher salary. The trial court granted partial summary judgment in favor of Garner. The Hawaii Intermediate Court of Appeals affirmed in part and reversed in part.

The court ruled that the trial court did not err in ruling that applicable law (HRS section 661-5) barred claims against the employer for back pay prior to November 8, 2000; the doctrine of equitable tolling did not apply. The court found that the per diem salary for substitute teachers (HRS section 302A-624(e)), as a pay-mandating statute, provided an alternative basis for invoking the trial court's jurisdiction under the "founded upon any statute" language in HRS section 661-1.

Greater Missoula Educators v. Child Start (Montana 10/30/2009) The union sued the employer alleging violation of the reduction in force provisions of the collective bargaining agreement (CBA) by refusing to arbitrate the reduction of 40 hours of employment for all employees. The trial court granted the union's motion to compel arbitration. The Montana Supreme Court affirmed.

The union agreed not to seek back pay or other financial reward in this suit. The employer argued the controversy was moot. The court agreed with the trial court that the issue of whether the grievance was moot was for the arbitrator to decide. The court found that at the time the trial court issued its order to compel arbitration the union maintained that the employer must arbitrate by the terms of the CBA, while the employer maintained it was not obligated to arbitrate under the CBA. The court noted that arbitrators have broad powers to fashion remedies.

Marion Center School v. Marion Center Association (Pennsylvania Cmnwlth Ct 10/30/2009) The union filed a grievance under the collective bargaining agreement (CBA) seeking three days of pay withheld from teachers where the statutory school year of 180 days was shortened by three days due to weather. The trial court sustained an arbitrator's award of back pay with interest in favor of the union. The Pennsylvania Commonwealth Court affirmed.

The employer argued the arbitrator's decision was not rationally derived from the CBA and violated public policy. The court stated that the arbitrator was not irrational to conclude that the inclusion in the CBA of a method to increase the teachers' pay for extra days worked, coupled with the absence of a method to decrease the teachers' pay for fewer days worked, implied that the teachers' pay could not be decreased for fewer days worked. Because Act 88 granted teachers the right to strike and the strike was timely settled allowing a 180 day school year, the court concluded it could not be against public policy for teachers to exercise that right granted by statute.

Powers v. Lexington-Fayette (Kentucky Ct App 10/30/2009) Powers sued the employer for retaliatory discharge in violation of Kentucky's Whistleblower Act (KWA) alleging her supervisor had committed numerous administrative violations. The jury found in favor of the employer. The Kentucky Court of Appeals affirmed.

The jury found that Powers had reported the violation of the KWA to an appropriate body or authority and that, by clear and convincing evidence, the report was not a material factor in Powers' discharge. The court found the report by Powers to her own agency satisfied the "any other appropriate body or authority" language of the KWA. Citing Workforce Development Cabinet v. Gaines, 276 SW3d 789 (2008), for the goals of liberally construing the KWA in favor of its remedial purpose and of giving words their plain meaning, the court rejected the employer's argument that the report must be made to third party entities with investigative authority for wrongdoing by public agencies.

Keyes v. North Carolina DOT (North Carolina Ct App 10/20/2009) Keyes appealed the trial court's decision affirming the State Personnel Commission's dismissal of Keyes for just cause. The North Carolina Court of Appeals affirmed in part and remanded.

Keyes left his assigned work as a flagger to respond to his spouse's request for help with a leaking water heater at home despite the employer's notification he had been selected for a random drug test that day as a transportation worker with a commercial driver's license (CDL). Keyes argued (1) he was not subject to a random drug test as a flagger and (2) the administrative law judge (ALJ) did not rule on whether his refusal was willful. The court held that the employer's interpretation that Keyes was an occasional driver according to its rules and regulations was not erroneous. Because the ALJ never reached the issue of willfulness and Keyes did not have the opportunity to present evidence on that issue, the court remanded for further hearing on the issue of willfulness.

Martins v. Univ of Mass Med Sch (Massachusetts Ct App 10/30/2009) Martins, after filing an administrative complaint with the Massachusetts Commission Against Discrimination (MCAD), sued the employer (among other claims) for violation of G.L. c. 151B and for violation of the Massachusetts Equal Rights Act (MERA) alleging discrimination (race and age) and retaliation. The trial court granted summary judgment in the employer's favor. The Massachusetts Appeals Court affirmed in part and reversed in part.

The point of law clarified in this case was whether a complainant seeking a judicial remedy for discrimination who satisfied his administrative requirements could bring parallel claims under the Massachusetts Equal Rights Act (G.L. c. 93, sections 102-103), in addition to his G.L. c. 151B claims in court. The court answered no. The Massachusetts Supreme Judicial Court previously established that the right to file a parallel MERA claim in court turned not on the proper exhaustion of administrative remedies, but on the availability of a remedy under c. 151B. The court stated that in Thurdin v. SEI Boston, LLC, 452 Mass 436 (2008), the Massachusetts Supreme Judicial Court held that where a c. 151B remedy was unavailable, the employee had the right to bring a MERA claim in the first instance in court, a result entirely consistent with the rule of preemption. The court noted a statement made in Thurdin to reconsider the exclusivity rule in cases where c. 151B was applicable, but that statement was dicta where the Supreme Judicial Court harmonized prior case law with Thurdin by indicating it was not changing the exclusivity rule in cases where c. 151B applied (452 Mass 436, at 458 n. 4).

Cox v. Standard Insurance Co (6th Cir 10/29/2009) Cox sued the employer for violation of ERISA alleging wrongful discontinuance of his long-term disability benefits. The trial court entered judgment on the administrative record in the employer's favor. The 6th Circuit affirmed.

The court considered the decision in the light of a conflict of interest, the employer both determined eligibility and paid benefits. The court found the evidence as a whole showed the employer's decision was the result of a principled and deliberative process. While the Social Security Administration (SSA) decided Cox was disabled, the court did not have any information in the record on the SSA's determination of Cox's disability. Without evidence of some abuse on the employer's part, the court concluded that the conflict of evidence factor was not enough.

State v. McPike (Wisconsin Ct App 10/29/2009) McPike, a police detective, was charged with drunk driving. An internal investigation was started, and his supervisor told him she was "administratively compelling" him to take a blood test. Nobody told McPike that a refusal would result in discipline or discharge. He submitted to the test, and also made incriminating statements. At his criminal trial, the court suppressed the test results and the statements. The Court of Appeals reversed as to the statements, and affirmed as to the test results.

(1) Garrity v. New Jersey, 385 US 493 (1967) held that when an officer makes statements under "threat of removal from office," those statements cannot be used in a criminal trial because that would violate the right against self-incrimination. The court decided that McPike's case did not involve an express threat of termination, and there was no police policy that refusal would lead to termination. Therefore, the statements were not involuntary within the meaning of the Garrity case. (2) The blood test was inadmissible evidence due to a Wisconsin statute.

Harris v. City of Santa Monica (California Ct App 10/29/2009) Harris sued the public employer, asserting a pregnancy discrimination (discriminatory discharge) claim under California's Fair Employment and Housing Act (FEHA). Harris prevailed after a jury trial. The court reversed, remanding for a new trial. The court concluded that the jury was incorrectly instructed on the "mixed-motive" theory, because the jury was not instructed that the employer could prevail by showing it would have taken the same action even absent discriminatory animus.

Kitsap Co Deputy Sheriff's Guild v. Kitsap Co (Washington 10/29/2009) Dissent: http://case.lawmemo.com/wa/kitsapcodissent.pdf

The public employer appealed the trial court's decision declining to vacate a grievance arbitration award. The award reinstated a deputy discharged for alleged misconduct (including untruthfulness). The appellate court below reversed, based on its determination that the arbitration award violated public policy. The court reversed.

The court had not yet explicitly adopted the public policy exception as a basis for vacating a grievance arbitration award. The court took that opportunity here, concluding "[w]e now join the federal and other state courts in adopting the narrow public policy exception to enforcing arbitration decisions." The court noted that several lower appellate court decisions have followed or made reference to the public policy exception. Applying that exception to the facts of this case, the court concluded ultimately that the arbitration award reinstating the deputy didn't violate an explicit, well defined, and dominant public policy. The court noted that "Washington statutes prohibit making false statements to a public officer but there is no statute or other explicit, well defined, and dominant expression of public policy that requires the automatic termination of an officer found to have been untruthful."

Three DISSENTERS argued that the award did violate public policy.

Price v. Southwest Airlines (New York App Div 10/29/2009) Price filed a complaint with the State Division of Human Rights (SDHR) alleging race discrimination (disparate treatment and hostile work environment) and constructive discharge. Price appealed the decision of the SDHR finding she failed to prove her claims. The New York Appellate Division affirmed.

Price did not establish disparate treatment with respect to evaluations, posting of commendation letters, or reporting of parking in handicapped spots. The court found the incidents alleged to create a hostile work environment were time barred, occurring more than a year before she filed her complaint.