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Employment Law Memo 07/22/2019
LawMemo - First in Employment Law

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*** Featured Case ***

UT - Using employee's confession of judgment, employer was substituted as plaintiff in employee's suit against the employer, who extinguished claims against itself.

Bradburn v. Alarm Protection Technology (Utah 07/17/2019)

Bradburn, sales representative, sued the employer in the 4th judicial district alleging $348,434 and treble damages in unpaid commissions, and other claims, all totaling $1,045,302. Latter, on the same day, the employer filed in the 3rd judicial district Bradburn's confession of judgement and a promissory note for commission advances. Two months later, the 3rd judicial district entered judgment against Bradburn for $24,000 pursuant to the promissory note and confession of judgment. The employer sought a writ of execution requesting a constable sale of all Bradburn's rights, claims, interest and choses in action against the employer. At the constable sale, the employer purchased Bradburn's choses in action against the employer for $2,500; the next day the employer filed a notice of transfer of claims and a motion to substitute itself as the only plaintiff in Bradburn's pending action in the 4th judicial district, which granted the employer's motion to substitute, precluding Bradburn from further participation in the case. The employer then extinguished all claims against itself in the 4th judicial district case.

Bradburn appealed only from the 4th judicial district's granting the employer's substitution. The court noted, because Bradburn did not appeal from either the confession of judgment action or the constable sale action, the Utah Supreme Court's jurisdiction was limited to determining whether the employer's substitution for Bradburn was proper.

In this case, the court observed that the employer secured a judgment by confession from Bradburn, sought a writ of execution, held a constable sale, purchased Bradburn's choses in action against itself, substituted itself as plaintiff, and extinguished all claims against itself. The court concluded that all of this was, on its face, authorized by the statutory framework. The court concluded that the district court did not abuse its discretion in allowing complete substitution because Utah law permitted the tactic used by the employer in this case. Furthermore, even if the court agreed with Bradburn that this tactic was problematic, the Utah Supreme Court did not have jurisdiction to unwind the entry of judgment against him or the sale of his claims against the employer. The Utah Supreme Court affirmed.

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5th - Jury award to public employee for First Amendment political retaliatory discharge was supported by sufficient evidence.

Griggs v. Chickasaw County (5th Cir 07/18/2019)

Griggs, Waste Enforcement Officer, sued the County for First Amendment retaliation, alleging his position was eliminated because he ran for sheriff as an Independent and against the Board's preferred candidate. The jury found for Griggs. The 5th Circuit affirmed.

In response to the County's arguments:

(1) the Rooker-Feldman doctrine did not apply to administrative proceedings, only to state judicial proceedings;

(2) the award of unemployment benefits did not enquire as to whether Griggs engaged in protected speech, judicial estoppel did not apply;

(3) Griggs failure to appeal the Board's decision in state court did not preclude his First Amendment claim under 42 USC Section 1983;

(4) Without evidence that Griggs created or implemented policy or that he had discretion in performing his duties that was not severely limited by a supervisor, the county's argument that Griggs occupied a policymaking position failed;

(5) At least three of the five board members had retaliatory motive making the evidence legally sufficient to support the jury's verdict.

DC - Court concluded the NLRB's findings were supported by substantial evidence regarding negotiations for new CBA by new employer; Board's Order enforced.

NLRB v. Ingredion Inc (DC Cir 07/19/2019)

The employer petitioned for review of the National Labor Relations Board's (NLRB) decision on the ground that five of the Board's findings were unsupported by substantial evidence and on other grounds. The DC Circuit denied the employer's petition and granted the Board's cross-application for enforcement of its order.

With respect to the charge of direct dealing with employees, the employer did not dispute that Meadows, the employer's chief negotiator, had direct contact with employees and solicited their views about key terms in the soon-to-be commenced bargaining with the union. Whether such contact was too brief or informal to constitute a violation of Section 8(a)(1) and (5) implicated the Board's expertise in labor relations. The employer pointed to nothing in the record considered as a whole that would cause the court to doubt the reasonableness of the Board's finding.

Regarding impasse, the Board found the employer unilaterally implemented new terms and conditions of employment when the parties had not reached an overall impasse in bargaining. The record showed that although the union's proposals used the format of the existing CBA and the employer's proposals used a different format, the court found this did not prevent the parties from proceeding to negotiate and reach agreement on some material issues. Moreover, at the time impasse was declared, major economic issues had received little attention from the parties: the employer made only a single wage proposal, the union had not made any specific proposal. The court concluded a review of the record as a whole showed substantial evidence to support the Board's finding that although the format of the new contract was a major issue, it did not create an overall impasse.

The court also confirmed the Board's findings on denigration of the union, delay in providing requested information, and threats of job loss.

Fed - Merit Systems Protection Board erred in rejecting whistleblower allegations and upholding termination on the ground termination would have resulted due to insubordination anyway.

Smith v. GSA (Fed Cir 07/19/2019)

The Federal Circuit reversed the decision of the Merit Systems Protection Board (Board) upholding Smith's dismissal as Senior Financial Advisor for the General Services Administration (GSA) over his contention he suffered unlawful retaliation for whistleblower activity. The Board upheld the dismissal on the ground GSA would have fired him for insubordination regardless of his whistleblower activity. The Federal Circuit reversed and held the Board erred in not analyzing all of the retaliation factors set forth in Carr v. Soc. Sec. Admin., 185 F3d 1318 (Fed. Cir. 1999) and instructed it to do so on remand. The court emphasized the proper inquiry when whistleblowing is at issue is not whether agency action is justified but whether the agency would have acted the same way absent the whistleblowing.

OH - Email communication did not constitute enforceable severance agreement nor provide basis for promissory estoppel.

Watson v. Franklin University (Ohio Ct App 07/18/2019)

The Court of Appeals affirmed summary judgment against Watson's breach of contract and promissory estoppel claims against the employer. Watson believed the employer, through email communication, agreed to continue her salary through May 13, 2015, as part of a severance agreement. Before signing a final agreement, the employer clarified it intended an end date of May 13, 2014, and no agreement was signed. The Court of Appeals held no contract was formed by the email communication because the parties intended to execute a final written, signed agreement and that Watson suffered no detriment based on the communication.


Editor: Ross Runkel, Ross@LawMemo.com. Copyright 2019 by LawMemo, Inc., PO Box 9182, Portland, OR 97207, (503) 227-1500. We are sending Employment Law Memo three times per week. To unsubscribe, reply to this email with the word "REMOVE" in the subject line.

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