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Supreme Court Review:
2001-2002 Employment Law Cases 

By Ross Runkel   Bio   email
Editor, Employment Law Memo


Cases Decided

Filing a reasonably based but unsuccessful suit is not unlawful retaliation under NLRA.

In BE&K Construction v. NLRB (06/24/2002) the Court construed NLRA Section 8(a)(1) so that it does not prohibit an employer from suing a union with a retaliatory purpose, provided that the suit was reasonably based.  The mere fact that the suit is unsuccessful and retaliatory is not enough.

 ERISA does not preempt state law on independent review of medical decisions (5-4).

In Rush Prudential HMO, Inc v. Moran (06/20/2002) the Court held, 5-4, that the Illinois HMO Act is not preempted by ERISA.  The state statute provides that a patient can make a demand for independent review of an HMO's decision that a covered service is not "medically necessary."  If the reviewing physician decides that the service is necessary, then the HMO "shall provide" the service.

IRS can use aggregate estimation method to calculate tips for FICA taxes (6-3).

In United States v. Fior D'Italia (06/17/2002), the Court held, 5-4, that the IRS may, for purposes of calculating a restaurant's FICA tax liability, use an “aggregate estimation” method.  The IRS examined the credit card slips; found the average percentage tip paid by those customers; assumed that cash-paying customers paid at same rate; calculated total tips by multiplying the tip rates by the restaurant's total receipts; subtracted the tips already reported; applied the FICA tax rate to the remainder; and assessed additional taxes owed.

No punitive damages under ADA Section 202 and Rehab Act Section 504.

Barnes v. Gorman (06/17/2002) was not an employment case.  Gorman sued police officials and officers for discriminating against him on the basis of his disability, in violation of 202 of the Americans with Disabilities Act of 1990 (ADA) and 504 of the Rehabilitation Act of 1973, by failing to maintain appropriate policies for the arrest and transportation of persons with spinal cord injuries.  The Court held that punitive damages are not allowed in such cases.

Potential injury to one's self is an ADA defense.

In Chevron USA, Inc v. Echazabal (06/10/2002) the Court unanimously upheld an EEOC regulation that allows an employer to refuse to hire a disabled worker if that worker’s disability on the job would pose a direct threat to his health, even though it poses no threat to the health or safety of others.

Continuing violation theory allowed in hostile work environment cases (5-4).

In National Railroad Passenger Corp v. Morgan (06/10/2002) the Court unanimously held that a Title VII plaintiff raising claims of discrete discriminatory or retaliatory acts must file an EEOC charge within the appropriate 180- or 300-day period.  The Court held, 5-4, that, a charge alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period; in neither instance is a court precluded from applying equitable doctrines that may toll or limit the time period. [Article]

State waives 11th amendment immunity by removing to federal court.

In Lapides v. Board of Regents of University System of Georgia (05/13/2002) the Court unanimously held that a State waives its Eleventh Amendment immunity when it removes a case from state court to federal court.  The Court follows a general principle that a state's voluntary appearance in federal court amounts to a waiver of its 11th amendment immunity.  Georgia was an involuntary defendant in state court, but voluntarily removed to federal court.  Therefore, the general principle applies, even though Georgia law does not authorize its attorney general to waive immunity.

ADA - Seniority usually trumps disabled employee's right to reassignment.

In US Airways v. Barnett (04/29/2002) the employer refused to accommodate Barnett by reassigning him to another job, because another employee had seniority rights to that job.  The 9th Circuit (en banc, 8-3) rejected the employer's claim that the ADA guarantees Barnett no more than the right to apply for and compete equally for reassignment.  The Supreme Court held that an employer’s showing that a requested accommodation conflicts with seniority rules is ordinarily sufficient to show, as a matter of law, that an “accommodation” is not “reasonable.” However, the employee remains free to present evidence of special circumstances that makes a seniority rule exception reasonable in the particular case.

ADEA - Does impact theory applies to ADEA cases?

In Adams v. Florida Power Corp (04/01/2002) the Court was expected to decide whether former employees can use the disparate impact theory in cases involving the Age Discrimination in Employment Act (ADEA). However, after hearing oral arguments, the Court dismissed the case without decision, leaving the lower court decision intact.  Decision below: Adams v. Florida Power Corp (11th Cir 07/05/2001).

NLRB cannot award back pay to unauthorized aliens

In Hoffman Plastic Compounds v. NLRB (03/27/2002) the Court held, 5-4, that the NLRB lacks the power to award back pay to an unauthorized alien.  The employer had violated the National Labor Relations Act by discharging an employee for trying to organize a union.  The employee, however, had never been legally admitted into or authorized to work in the United States.

Employer need not grant more than 12 weeks of FMLA leave in one year (5-4).

In Ragsdale v. Wolverine Worldwide, Inc (03/19/2002) the Court held, 5-4, that the Department of Labor lacked authority to compel an employer to grant more than 12 weeks of FMLA leave in one year.  This is true even though the employer did not comply with the DOL requirement that it must inform the employee that a previous leave of absence would count against her FMLA entitlement. 

In holding that the bounds of the Secretary's discretion to issue regulations were exceeded, the Court did not decide whether the notice and designation requirements are themselves valid or whether other remedies for their breach might be consistent with the statute.

EEOC charge can be verified after expiration of limitations period.

In Edelman v. Lynchburg College (03/19/2002) the Court held that an EEOC charge that is filed without being under oath can be verified later, even though the verification occurs outside of the applicable time limit.  The Court upheld an EEOC regulation that provides that a late verification relates back.

EEOC - Private arbitration agreement does not limit EEOC's litigation remedies

EEOC v. Waffle House (01/15/2002) held, 6-3, that an agreement between an employer and an employee to arbitrate employment disputes does not bar the EEOC from pursuing victim-specific judicial relief, such as back pay, reinstatement, and damages, in an ADA enforcement action.

ADA - Manual tasks disability has focus on tasks of central importance to people's daily lives

In Toyota Motor Mfg v. Williams (01/08/2002) Williams had carpal tunnel syndrome, and sued her former employer under the Americans With Disabilities Act (ADA) for failing to accommodate her.  The trial court ruled that she was not disabled under the ADA.  The 6th Circuit reversed, finding that the impairments substantially limited Williams in the major life activity of performing manual tasks.  The US Supreme Court reversed unanimously, holding that the 6th Circuit did not apply the proper standard in determining that Williams was disabled under the ADA because it analyzed only a limited class of manual tasks and failed to ask whether Williams's impairments prevented or restricted her from performing tasks that are of central importance to most people’s daily lives.

Tolling statute cannot be applied to state law claim that is dismissed on 11th amendment grounds.

Raygor v. Regents of the University of Minnesota (02/27/2002) held, 6-3, that the federal tolling statute could not be applied to this case.  Raygor filed an age discrimination charge with the state human rights agency.  The agency dismissed the charge.  State statute provides that after the agency dismisses, the complainant has 45 days to file in state court.  Instead, Raygor sued in federal court claiming violation of the federal Age Discrimination in Employment Act (ADEA) and the state anti-discrimination act.  The federal court dismissed without prejudice because the 11th amendment bars such suits in federal court.  Meanwhile, Raygor sued in state court, but not within the 45 day period. 28 USC Section 1367(d) tolls a state statute of limitations for claims asserted under federal supplemental jurisdiction while those claims are pending in federal court.  Applying Section 1367(d) would toll the state's 45 day statute of limitations as to Raygor's state claim.  The Supreme Court held that the tolling statute could not be applied in this case.

ERISA - Third-party reimbursement is not actionable under ERISA

In Great-West Life & Annuity v. Knudson (01/08/2002), After Knudson was injured in an auto accident, an ERISA Plan paid benefits to her and her medical providers.  After Knudson settled a claim against the persons allegedly responsible for accident, the Plan sued Knudson for full reimbursement.  The trial court dismissed the case; the 9th Circuit affirmed.  The US Supreme Court affirmed (5-4).  The Plan sued under ERISA Section 502(a)(3), which allows claimants to seek "equitable" (rather than "legal") relief.  The Supreme Court held that the Plan was seeking "legal" relief -- the imposition of personal liability for a contractual obligation to pay money, and that Section 502(a)(3) does not authorize this action.  The Supreme Court rejected the Plan's arguments that its action was "equitable" under Section 502(a)(3) because (1) it sought an injunction, (2) it sought restitution, and (3) the common law of trusts provides equitable remedies that allow them to bring this action under 502(a)(3).

OSHA has jurisdiction over oil drilling barge

Chao v. Mallard Bay Drilling (01/09/2002) unanimously held that OSHA has jurisdiction over an oil drilling barge.  The Coast Guard's regulatory authority over uninspected vessels is more limited than its jurisdiction over inspected vessels. Its general maritime regulations do not address the occupational safety and health concerns faced by inland drilling operations on uninspected vessels and, thus, do not pre-empt OSHA's authority in this case.

MSPB has authority to consider still-pending discipline

United States Postal Service v. Gregory (11/13/2001) unanimously held that the Merit Systems Protection Board (MSPB), when deciding whether discharge is a reasonable penalty, can consider prior disciplinary actions that were still being contested under a collective bargaining agreement.  The MSPB has authority to make an independent review of disciplinary actions that are pending in grievance proceedings.  The Federal Circuit can review MSPB decisions under a narrow "arbitrary and capricious" standard.  The MSPB's decision to make an independent review of prior disciplinary actions is not arbitrary and is not contrary to any law.

Coal Act does not permit assignment of retired miners to the successors in interest of out-of-business signatory operators.

Barnhart v. Sigmon Coal Co (02/18/2002) held, 6-3, that the Coal Act does not permit the Commissioner of Social Security to assign retired miners to the successors in interest of out-of-business signatory operators.

Discrimination - Minimum pleading requirements

In Swierkiewicz v. Sorema N.A. (02/26/2002) the Court unanimously held that a complaint (at the pleading stage) alleging violation of Title VII and the Age Discrimination in Employment Act (ADEA) need not contain specific facts establishing a prima facie case.  The Court rejected the 2nd Circuit's holding that the allegations in the complaint were so conclusory that they failed to state a claim under Federal Rule 12(b)(6).  See Plaintiff's Amended Complaint.

Court Avoids Deciding Constitutionality of DOT's Race-Conscious Presumptions

In Adarand Constructors v. Mineta  (11/27/2001) The Court unanimously decided not to decide the case, and to "dismiss the writ of certiorari as improvidently granted."  This leaves intact the 10th Circuit's decision:  Adarand Constructors v. Slater (10th Cir 09/25/2000).

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