Carlucci v. Demings (Florida Ct App 03/19/2010) Carlucci and other county sheriff's department retirees sued in a class action for breach of contract. The claim arose from the sheriff's cancellation of a general order (General Order 328.0) establishing healthcare benefits for certain sheriff's department retirees. The trial court granted summary judgment in favor of the employer. The court affirmed, concluding that the sheriff's general order did not constitute a contract.

Spearfish Educ Assoc v. Spearfish Sch Dist (South Dakota 03/17/2010) The public school teachers' union filed a grievance against the employer, alleging that the employer committed a grievable action when it failed to pay all teachers according to the 2006-07 salary schedule implemented by the employer after the parties reached impasse. The dispute arose when the employer decided to pay certain new hires under the 2005-06 schedule, because those teachers would receive more under the 2005-06 schedule than they would under the 2006-07 schedule. The Department of Labor (DOL) determined that the employer's actions constituted a grievable offense, but the trial court reversed. The court reversed.

The court concluded, "[w]e hold that the District's action constituted a grievable offense because SDCL 3-18-8.2 does not authorize the District to deviate from the salary schedule in its last offer for certain teachers in the bargaining unit." Under the circumstances, Section 3-18-8.2 required the employer to "implement, as a minimum, the provisions of its last offer." The employer argued that it complied with this requirement, since its treatment of the new hires actually resulted in them receiving more pay than they would have under the employer's last offer. The court rejected that argument, determining that the "as a minimum" language did not apply to individual teacher contracts.

Jackson v. Brotherhood's Relief & Comp Fund (Nebraska 03/19/2010) Jackson, a railroad employee, sued his union's "Relief and Compensation Fund" for breach of contract, based on the fund's refusal to pay "Held Out of Service" benefits for the time he was suspended for refusing to provide a urine sample for drug testing. Jackson prevailed after a bench trial. The court reversed. The court concluded that, as a matter of law, Jackson was not entitled to benefits under the terms of the union's constitution because he refused to provide a urine sample. The court observed, "Jackson ‘refused,' as a matter of law, to comply with [employer] and federal regulations requiring drug testing."

Jacob North Printing Co v. Mosely (Nebraska 03/19/2010) The employer sued Mosley, asserting claims for breach of the duty of loyalty, misappropriation of trade secrets, conversion, and violation of Nebraska's Consumer Protection Act. The trial court granted Mosley's motion to disqualify the employer's attorney, based on the attorney's representation of Mosley in similar litigation at the time he was hired by the employer. The court reversed, concluding that the two cases were not "substantially related," and that the attorney's representation of the employer did not run afoul of Neb. R. of Prof. Cond. Section 3-501.9(a).

Bonidy v. Vail Valley Ctr (Colorado Ct App 03/18/2010) Bonidy sued the employer, asserting a claim for wrongful discharge in violation of public policy. Bonidy's case arose from the employer's decision to discharge her immediately after receiving her complaint regarding violation of Colorado wage-and-hour laws. Bonidy prevailed after a bench trial, and was awarded back pay for the time period starting on the date of her discharge and ending on the date she started her own business. The court reversed as to the trial court's calculation of back pay, but otherwise affirmed.

1) In order to establish a prima facie case of wrongful discharge in violation of public policy in Colorado, an employee must show that she was "terminated as the result of refusing to perform" an act. The employee must also show that the act would "violate a specific statute related to public health, safety, or welfare, or would undermine a clearly expressed policy relating to the employee's basic responsibility as a citizen or the employee's right or privilege as a worker." The court held that an employee's burden to establish the "refusal element" is satisfied when the employee objects to performing the act and is discharged immediately thereafter – prior to the time the employee has an opportunity to actually refuse. The court concluded that Bonidy's complaint and immediate discharge satisfied this standard.

2) The court noted that "[t]he proper formula for calculating back pay and the events that trigger the termination of the back pay period are matters of first impression in Colorado." The court held, "we adopt the general formula for calculating back pay damages used in other jurisdictions: the amount the employee reasonably could have expected to earn absent the wrongful termination, reduced by either (a) the employee's actual earnings in an effort to mitigate damages or (b) the amount the employee failed to earn by not properly mitigating his or her damages." The court also held that an employee's decision to start a business does not necessarily indicate a lack of reasonable diligence with respect to the mitigation of damages. The court remanded for recalculation of back pay.

Abram v. Div of Human Rights (New York App Div 03/19/2010) In this CPLR article 78 proceeding, Abram petitioned for review of a determination by the New York State Division of Human Rights that she failed to establish her disability discrimination and retaliation claims against the public employer. Abram asserted her claims under the Americans with Disabilities Act (ADA) and state law. The court dismissed, concluding that the Division's determination was supported by substantial evidence. The court reasoned that 1) Abram failed to establish that she could perform her essential job functions with reasonable accommodation; and 2) Abram failed to establish the "causal link" element of her prima facie case of retaliation.

Niagara Frontier Trans Auth v. NFTA Superior Officers Assoc (New York App Div 03/19/2010) The transit authority officers' union appealed from the trial court's order granting the transit authority's CPLR article 75 petition for a permanent stay of arbitration. The dispute arose from the promotion of a firefighter to acting captain, resulting from an alleged vacancy. The court reversed, stating "[w]e conclude that the dispute is arbitrable inasmuch as the alleged ‘promotion' may be deemed to constitute an ‘assign[ment],' thus obligating petitioner to determine the availability of the existing captains and to offer them overtime before making that assignment. Those issues should be resolved by an arbitrator."

Ford v. Cardiovascular Specialists (New York App Div 03/19/2010) Ford sought a declaratory judgment invalidating a non-compete agreement he had with his former employer. After commencement of the proceedings, Ford moved for a preliminary injunction enjoining the employer from enforcing the agreement. The trial court declined to rule on Ford's motion, but instead ruled on the ultimate merits of the action and declared the agreement invalid. The court reversed. The court concluded that, given the procedural posture of the case, the trial court erred in granting the ultimate relief requested in the complaint. The court noted that neither party had an opportunity to conduct discovery.

CASE v. Schwarzenegger (California Ct App 03/19/2010) Employees of the State Compensation Insurance Fund (SCIF) petitioned for a writ of mandate prohibiting the Governor from implementing furloughs. The trial court granted the petition for writ of mandate. The California Court of Appeal affirmed.

The California Insurance Code section 11873, subdivision (c) provided: "Notwithstanding any provision of the Government Code or any other provision of law, the positions funded by the State Compensation Insurance Fund are exempt from any hiring freezes and staff cutbacks otherwise required by law." The court found that the authority to determine staffing needs was vested in the SCIF board and not the Governor, consistent with SCIF's structure as a "quasi-governmental entity" mandated to be self-sufficient. The court concluded that the trial court correctly interpreted section 11873, subdivision (c) and issued a writ of mandate directing the Governor to set aside Executive Order No. S-16-08 insofar as it applies to SCIF employees represented CASE.

Jobe v. Medical Life Ins Co (8th Cir 03/19/2010) Jobe sued the employer for denial of long-term disability benefits in violation of ERISA. The trial court granted the employer's motion for summary judgment, finding the plan administrator had discretion by reason of the plan summary. The 8th Circuit reversed.

The issue on appeal was whether a summary plan description prevailed over the formal policy where the summary plan granted to a plan administrator rights not present in the formal policy, yet also indicated that the policy prevailed if the two documents conflicted. The policy did not provide the plan administrator with discretion. The court joined the 7th, 9th, and 11th circuits in holding that the summary plan description did not vest the administrator with discretion under such circumstances. To rule otherwise, the court found, would enlarge the administrator's authority and undermine the provisions for amending the policy.

Kinneary v. City of New York (2nd Cir 03/19/2010) Kinneary sued the employer for violation of the Americans with Disabilities Act (ADA) and the state and city Human Rights Law alleging failure to accommodate. The jury found in favor of Kinneary and the trial judge denied the employer's motion for judgment as a matter of law. The 2nd Circuit reversed.

Kinneary was subject to random drug testing as a sludge boat captain for the employer, New York City. Kinneary suffered from paruresis (shy bladder syndrome) and lost his captain's license for failure to produce a satisfactory urine sample within three hours, by action of the Coast Guard, from which Kinneary did not timely appeal. Kinneary had passed drug tests using hair samples, blood tests, and saliva tests. The employer provided an accommodation by referring Kinneary to his physician for an evaluation within five days. The physician's note (stating the name of the condition, that it was chronic and could be helped by an alpha blocker that Kinneary had been given, and that Kinneary was not a substance abuser) did not constitute a basis for the drug test to be cancelled under the regulations (49 CFR Section 40.193 - a medical condition precluded or there was not an adequate basis for determining that a medical condition precluded Kinneary from providing a sufficient amount of urine).

The court found that the Coast Guard revoked Kinneary's license, that Kinneary had been given an accommodation to cancel the drug test by referral to his physician, and that Kinneary was unqualified to perform the essential functions of his job without a captain's license.

Paradise v. Midwest Asphalt (Missouri Ct App 03/16/2010) Paradise sought a declaratory judgment voiding a non-compete agreement with the employer. The employer counterclaimed, asking the trial court to either find the agreement enforceable or modify it to make it enforceable. After a bench trial, the trial court modified the agreement, declared it enforceable as modified, and refused the grant injunctive relief to the employer. The trial court also declined to award the employer its attorney fees. The court affirmed, concluding that 1) the trial court erred when it declined to grant an injunction after modifying the non-compete agreement and finding the agreement to be supported by a protectable interest, but an injunction was not available because the truncated term of the agreement had expired as of the date of the court's opinion; and 2) the employer failed to establish that it was a "prevailing party" entitled to attorney fees under the parties' agreement.

Calvao v. Town of Framingham (1st Cir 03/17/2010) Municipal police officers sued the employer in a putative class action, seeking unpaid overtime compensation under the Fair Labor Standards Act (FLSA). The trial court granted partial summary judgment in favor of the employer, and the parties stipulated to judgment on the remaining issues. The 1st Circuit affirmed.

29 USC Section 207(k) establishes a partial exemption for public safety officers, which alters the maximum number of hours covered employees may work before they are entitled to overtime compensation under the FLSA. In order for a public employer to avail itself of the benefits of Section 207(k), it must establish that 1) the employees at issue are engaged in fire protection or law enforcement; and 2) the employer has established a qualifying work period (of at least seven but not more than twenty-eight consecutive days). The court held that a public employee need not provide notice to its employees prior to taking advantage of Section 207(k). The court noted that the relevant regulations "make it clear the Secretary rejected a notice requirement under Section 207(k)." The court thus rejected the employees' argument that they were entitled to advance notice from the employer of its intention to utilize Section 207(k) – and affirmed.

Burns v. Bd of Admin (Florida Ct App 03/17/2010) Burns appealed from the State Board of Administration's (SBA) order denying his request for reimbursement of losses incurred in his Florida Retirement System (FRS) Investment Plan account. The Florida Court of Appeal affirmed.

Burns retired and did not request a distribution for four months during which time his investment account lost $100,000 in value. Burns argued that the FRS violated ERISA by concealing a material fact that he had the ability to reallocate his investment fund during the three month waiting period. The court found that substantial evidence (Burns' testimony and signed form acknowledging liability for any loss) supported the SBA's factual finding that it did not conceal from Burns his ability to continue managing his account during the three month waiting period.

Samaniego v. Keller (Texas Ct App 03/17/2010) The Civil Service Commission (CSC) ruled it did not have jurisdiction under the collective bargaining agreement (CBA) to hear Keller's appeal for failure to reappoint. Keller sued the employer for retaliatory discharge under Chapter 451 of the Texas Labor Code and appealed the CSC's ruling. The trial court denied the employer's plea to the jurisdiction and motion to dismiss. The Texas Court of Appeals dismissed in part and reversed in part.

(1) The employer argued that Keller failed to give the requisite notice of suit to the county judge and county under Texas Local Government Code Section 89.0041(a). The employer abandoned this contention based upon El Paso County v. Alvarado, 290 SW3d 895 (2009), but the court corrected its ruling in Alvarado stating it lacked jurisdiction to hear the appeal and should have dismissed the appeal rather than affirming the trial court's order denying the plea to the jurisdiction.
(2) The court reversed the trial court's order denying the employer's plea to the jurisdiction of the appeal of the CSC's ruling, finding the appeal was untimely under the thirty day time period provided in Texas Local Government Code Section 158.037(a).

Larco Inc v. Strebeck (Arkansas Ct App 03/17/2010) Strebeck sued the both employers (Larco and RCR) for unpaid commissions and a vehicle allowance. The trial court found in favor of Strebeck. The Arkansas Court of Appeals affirmed in part and reversed in part.

One issue on appeal was whether the two corporate employers were jointly and severally liable. The court answered no. The court found that evidence showing the corporations were operated by the same person and employed the same people were not sufficient grounds to disregard the separate legal existence of the corporate, particularly where each corporation filed separate tax returns, filed separate payroll tax reports, paid separate benefits to employees, and maintained separate workers' compensation coverage.

SEIU v. USA (9th Cir 03/17/2010) SEIU appealed the IRS imposition of penalties for filing a late informational return. The trial court reduced the penalties. The 9th Circuit reversed. The issue was whether penalties on tax exempt organizations for late filing of informational returns could be reduced by trial courts as a matter of discretion. The court agreed with the IRS that the statute (26 USC Section 6652(c)(1)(A)) provided a formula for calculating penalties for late filing by exempt organizations using mandatory language. The court concluded trial courts did not have discretion to reduce statutorily mandated penalties.

Combs v. City Electric Supply (North Carolina Ct App 03/16/2010) Combs sued the employer, asserting a common law claim for wrongful discharge in violation of public policy. He also asserted a common law claim for tortious interference with contract, against a superior. The trial court granted a directed verdict in the employer's favor on each of these claims. The court reversed, concluding that 1) Combs produced sufficient evidence that he was discharged from the utility company where he worked, in retaliation for reporting that the company wasn't properly crediting customers whose accounts had negative balances (and had affirmatively acted to conceal the existence of such negative balances); and 2) Combs produced sufficient evidence in support of his tortious interference claim.

Wigglesworth v. Mettler Toledo Intl Inc (Ohio Ct App 03/16/2010) Wigglesworth sued the employer, asserting a state law age discrimination (discriminatory discharge) claim. The trial court granted summary judgment in favor of the employer. The court affirmed, concluding that Wigglesworth produced insufficient evidence that the reasons given for his discharge were pretext for age discrimination. The court rejected Wigglesworth's argument that the employer's failure to apply progressive discipline constituted evidence of pretext. The court opined that even a "complete failure" by an employer to follow internal company policies "does not necessarily suggest that the substantive reasons the employer gave for its employment decision were pretextual."

Taravella v. Town of Wolcott (2nd Cir 03/16/2010) Taravella sued the municipal employer and its mayor, asserting (among other things) claims under 42 USC Section 1983 for violation of her 14th Amendment procedural due process rights. The trial court denied the mayor's assertion of qualified immunity. The 2nd Circuit reversed. The court concluded that although Taravella alleged the violation of a clearly established constitutional right, the mayor was entitled to qualified immunity because his conduct was objectively reasonable. The DISSENT argued against the majority's application of a three-step (rather than two-step) qualified immunity analysis. The dissent noted that 2nd Circuit cases have been inconsistent on this issue, having applied both approaches.

Alcazar v. Catholic Archbishop of Seattle (9th Cir 03/16/2010) Alcazar sued the Catholic church, asserting a claim for unpaid overtime compensation under the Washington Minimum Wage Act. His claim arose from work performed during a ministry training program, as part of the process for becoming an ordained priest. The trial court dismissed Alcazar's claim on the basis that it was barred under the 1st Amendment's "ministerial exception." The 9th Circuit affirmed.

1) The court noted that the 1st Amendment's Establishment and Free Exercise Clauses "require a ‘ministerial exception' to employment statutes if the statute's application would interfere with a religious institution's employment decisions concerning its ministers." Relying on cases addressing application of the ministerial exception to Title VII, the court determined that the exception applies to the Washington Minimum Wage Act.

2) The court noted, "[w]e have never clearly announced a test to determine whether an employee is a ‘minister' under the ministerial exception." Taking the opportunity to do so, the court held that an employee falls within the ministerial exception when he 1) is employed by a religious institution; 2) was chosen for the position based "largely on religious criteria;" and 3) performs some religious duties and responsibilities. The court noted that this test is similar to one adopted by the 5th Circuit, and declined to adopt the "primary duties" test used in the 4th and DC Circuits. Applying its new test, the court concluded ultimately that Alcazar fell within the ministerial exception.

Acevedo v. Allsups Convenience Stores (5th Cir 03/15/2010) Acevedo sued the employer for unpaid wages and overtime under the Fair Labor Standards Act (FLSA). The trial court dismissed the action for misjoinder. The 5th Circuit affirmed in part and reversed in part.

Acevedo opted into a representative action under the FLSA, which was decertified, and then filed this action seeking joinder of all dismissed plaintiffs. Acevedo argued that in employment discrimination cases allegations of a pattern or practice of discrimination could satisfy Rule 20's same transaction requirement, which should apply when an employer maintained a working off the clock policy. Even if this argument was accepted, the court found it was not an abuse of discretion for the trial court to conclude that trying 800 claims involving more than 300 stores would be too challenging logistically, given the divergent working conditions at each store and the different defenses applicable to each employee's claim. The court found the trial court erred when it dismissed the entire action without allowing the individual employees time to pursue their claims.

Schexnayder v. Hartford Life (5th Cir 03/12/2010) Schexnayder sued the employer under the Employee Retirement Income Security Act (ERISA), seeking review of a decision terminating his long-term disability benefits. The trial court granted summary judgment in favor of Schexnayder, and awarded him his attorney fees. The 5th Circuit reversed as to attorney fees, but otherwise affirmed. The court found that the plan administrator's decision was supported by substantial evidence, but determined that a conflict of interest combined with "procedural unreasonableness" acted as a "tiebreaker" leading to the conclusion that the plan administrator abused its discretion. With respect to procedural unreasonableness, the court noted that the plan administrator failed to address a determination by the Social Security Administration (SSA) finding Schexnayder to be totally disabled. The court noted, "[w]e agree with the Sixth Circuit's conclusion ... that ‘[h]aving benefitted financially from the government's determination that [the plaintiff] was totally disabled' [the plan administrator] should have at least acknowledged the SSA award."

Sullivan v. Leor Energy (5th Cir 03/15/2010) Sullivan sued the employer for breach of contract, quantum meruit, unjust enrichment, fraud, promissory estoppel, and detrimental reliance. The trial court dismissed the suit for failure to state a claim. The 5th Circuit affirmed.

An employment agreement was drafted, but never executed. Sullivan was paid a salary before the employment relationship was terminated by the employer. The court agreed that enforcement of the alleged employment agreement was barred by the Texas statute of frauds, where the alleged agreement was for more than one year and was not signed by the employer (Gilliam v. Kouchoucos, 340 SW2d 27 (1960)).

SEIU v. NUHW (9th Cir 03/15/2010) SEIU sought an injunction for restoration of properties allegedly taken illegally by the National Union of Healthcare Workers (NUHW) and individual defendants, former officers and leaders of the local affiliate. The trial court issued a temporary restraining order (TRO). The 9th Circuit affirmed.

The SEIU imposed a trusteeship pursuant to the SEIU constitution on the local affiliate United Healthcare Workers, whose leaders and officers formed the NUHW. The primary issue on appeal was whether Section 301(a) of the Labor Management Reporting and Disclosure Act (LMRDA) applied to actions against individual union members. NUHW and the individual defendants argued that Building Material & Dump Truck Drivers, Local 420 v. Traweek, 867 F2d 500 (9th Cir. 1989), foreclosed jurisdiction under section 301(a) for a union's action for damages against a union member. The court distinguished Traweek as not dealing with the question of injunctive relief, nor circumstances involving two unions competing for the rank and file. The court concluded that section 301(a) provided federal jurisdiction for an international union's action for breach of the union constitution against the former officers of a local union. The court reasoned: (1) providing a federal forum for injunctive relief against the former officers and leaders of the local affiliate promoted the stability of the parent-local relationship and the representation of rank-and-file members, (2) permitting section 301(a) jurisdiction promoted a consistent forum for labor disputes, (3) permitting suits for injunctive relief will not involve the federal courts in minor disputes, and (4) the principles that section 301(a) was not to be interpreted narrowly and that it contemplated that federal courts fashion a body of law for the enforcement of contracts between labor organizations required that federal courts have jurisdiction to provide injunctive relief. (2nd and 11th Circuits agreed).

McBride v. Murray (Georgia 03/15/2010) McBride filed a second amended complaint two years after the trial court held a name-clearing hearing. The trial court dismissed the second amended complaint. The Georgia Supreme Court affirmed.

The trial court at the name-clearing hearing did not make a ruling, but stated the name-clearing hearing had been held, to which McBride did not object. The court found the dismissal proper where McBride got the hearing she requested and neither objected to nor appealed from the procedure followed in the name-clearing hearing.

Serafinn v. Intl Brotherhood of Teamsters (7th Cir 03/12/2010) Serafinn sued the local union and others for violation of the Labor Management Reporting and Disclosure Act (LMRDA) alleging violation of his free speech, assembly, and due process rights. The jury found in favor of Serafinn. The 7th Circuit affirmed.

Serafinn offered a "motivating factor" jury instruction and the local union offered a purported "mixed-motive" instruction. The court gave a "but-for cause" instruction, denying both parties offered instructions. The local union appealed the denial of its "mixed-motive" instruction as one issue on appeal. Relying on Gross v. FBL Fin. Servs., 129 SCt 2343 (2009), the court found that the LMRDA did not contain language comparable to the Civil Rights Act's authorization of claims that an improper consideration was a motivating factor for the contested action, such that the trial court properly denied Serafinn's instruction. The court continued, under the reasoning of Gross, that the language of the LMRDA required that Serafinn bear the burden of persuasion to establish a but-for cause such that a mixed-motive theory of liability would be improper in any case brought under the LMRDA.

Holschen v. Intl Union of Painters (8th Cir 03/12/2010) Holschen sued the union for violation of the Labor Management Reporting and Disclosure Act (LMRDA) alleging retaliation among other claims. The trial court granted the employer's motions for summary judgment and directed verdict. The 8th Circuit affirmed.

Holschen alleged retaliation by not referring him for jobs through the union's non-exclusive hiring hall for expressing his preference in a union election. Holschen argued on appeal that he brought his retaliation claim under the LMRDA Section 101 (bill of rights of members of labor organizations) rather than Section 609 (union retaliatory disciplinary procedures). One issue on appeal was whether the free speech provisions of Section 101 of the LMRDA, in conjunction with the use of the word "infringed" in the remedy provision of Section 102 of the LMRDA, gave rise to a free-standing retaliation claim, or must an LMRDA free-speech retaliation claim always be brought pursuant to Section 609 and thus subject to the limits and contours contained therein. The court acknowledged that the Supreme Court had intimated that a claim under Section 101 may exist, but twice declined to address whether it actually did exist, and that some courts appeared to recognize such a claim. The court expressed doubt whether a free-standing retaliation claim existed; stating it was unaware of a dual analytic framework for addressing not only retaliation claims limited by the scope of and tethered to the retaliation provision, but also free-standing retaliation claims which arose from the statute creating the substantive rights (citing NLRA, ADEA, ERISA, Title VII, and ADA). The court declined to decide the issue where it was not fully developed or briefed.

Collins v. Clark Cnty Fire Dist (Washington Ct App 03/11/2010) Collins and three female co-workers sued the public employer, asserting (among other things) claims for hostile environment sexual harassment under the Washington Law Against Discrimination (WLAD). The employees prevailed after a jury trial, and were each awarded substantial damages by the jury. The trial court granted in part the employer's motion for remittitur, but otherwise left the jury's damages awards undisturbed. The trial court also awarded attorney fees. The court reversed as to the trial court's grant of remittitur, but otherwise affirmed. The court concluded that the jury's damages awards were supported by sufficient evidence as to each of the employees, and that the trial court thus erred as to its grant of remittitur. The court also affirmed as to attorney fees.

Stockwell v. City of Harvey (7th Cir 03/12/2010) Stockwell sued the employer for violation of Title VII alleging failure to promote based on reverse race discrimination. The trial court granted the employer's motion for summary judgment. The 7th Circuit affirmed.

While the trial court held Stockwell failed to establish a prima facie case that background circumstances demonstrated that the employer discriminated against whites, the court focused on Stockwell's evidence of pretext. The court found that the decisionmaker's honestly believed impressions that Stockwell was retiring soon and that other white candidates had negative qualities were not challenged by sufficient evidence to create a genuine issue of fact regarding whether the reasons were pretextual.

Sweeney v. Dyncorp International (Texas Ct App 03/11/2010) Sweeney appealed a decision by the Texas Workforce Commission (TWC) denying his claim that the employer violated the Texas Payday law when it refused to pay him a $25,000 bonus. The trial court affirmed the Commission's decision. The court affirmed, concluding that the Commission's decision was supported by substantial evidence. The court reasoned, "there is evidence in the record to support TWC's conclusion that Sweeney was not entitled to the $25,000 bonus because he did not successfully complete [the employer's] employment assessment."

Torres v. City of Corpus Christi (Texas Ct App 03/11/2010) Torres sued the public employer, asserting a whistleblower claim under Tex. Gov't Code Section 554.002. The trial court dismissed for lack of jurisdiction, agreeing with the employer's argument that Torres failed to "initiate action under the [employer's] grievance or appeal procedures" prior to filing suit as required under Section 554.006(a). The court reversed, based on its determination that Torres complied with Section 554.006(a) by initiating the employer's grievance procedure.

Twigland Fashions v. Miller (Texas Ct App 03/11/2010) Miller sued the employer, asserting (among other things) a state law claim for hostile environment sexual harassment. Miller's claim arose from alleged harassing conduct by her supervisor. Miller prevailed on this claim after a jury trial. The court reversed, concluding that the conduct complained-of did not rise to the level of actionable sexual harassment. The court reasoned, "we must conclude that Miller has not presented legally sufficient evidence that any sexual harassment ... rose to the level of altering the terms, conditions, or privileges of her employment and ‘creat[ing] an abusive working environment.'" In reaching its determination, the court relied upon "the infrequency of [the supervisor's] alleged conduct, its lack of relative severity, and the limited degree to which it impacted Miller's work performance."

Communications Workers of America v. State Policemens Bnvlnt Assoc (New Jersey App Div 03/11/2010) The Public Employment Relations Commission (PERC) determined that assistant superintendents in a county weights and measures department were "policemen" for purposes of NJSA 34:13A-5.3, and therefore not generally eligible for membership in unions containing non-policemen. PERC based that determination on the employees' limited authority (pursuant to NJSA 51:1-106) to arrest in instances when a provision of the Weights and Measures Law is violated in their presence. As a result of its determination, PERC severed the employees from their union - and the union appealed. The court reversed, concluding that PERC erred by establishing "a per se rule based upon authority to arrest, no matter how narrow its scope, without considering the relevance of that rule to the Legislature's purpose in limiting the right of a policeman to join unions with membership that includes persons who are not policemen." The court remanded for reconsideration.

CSEA v. Torrence Unified School Dist (California Ct App 03/11/2010) The public school employees' union petitioned for writ of mandate, alleging that the school district violated California Education Code Section 45203 by failing to pay regular wages to classified employees who did not work on certain "staff development" days when students were not present at school. The trial court denied the petition. The court affirmed, concluding that Section 45203 did not require the classified employees to be paid for the days at issue when they did not work. The court noted that the statute refers to "any schoolday during which pupils would otherwise have been in attendance but are not..." The court agreed with the employer that the staff development days at issue were not school days "during which pupils would otherwise have been in attendance."

Lindsey v. Green (Arkansas 03/11/2010) In this legal malpractice suit, employees sued their former attorneys after their Title VII claims were dismissed by a federal court because they failed to exhaust their administrative remedies. The primary issue on appeal was whether the federal court's dismissal constituted a "decision on the merits" for purposes of res judicata – effectively barring a subsequent lawsuit in state court. The court held that the answer to that question was "no," noting that "[i]n Costello v. United States, 365 US 265 (1961), the Supreme Court held that a dismissal for failure to satisfy a precondition was not a decision on the merits and did not bar a subsequent action on the same claim." The court reasoned, "[i]t follows that the federal court[‘s] dismissal for failure to file with the EEOC was not a judgment ‘on the merits' that would operate to bar appellants' state law claims under res judicata."

Schaar v. Lehigh Valley Health (3rd Cir 03/11/2010) Schaar sued the employer, asserting interference and discrimination claims under the Family and Medical Leave Act (FMLA). The trial court granted summary judgment in favor of the employer. The 3rd Circuit reversed.

The primary issue on appeal was "whether a combination of expert and lay testimony can establish that an employee was incapacitated for more than three days as required by the FMLA's implementing regulations." The court held that the answer to that question is "yes," noting that there is a split among the circuits on this issue. The court rejected the approach taken by the 5th and 9th Circuits, which have concluded that lay testimony, by itself, may be sufficient to create a genuine issue of fact in this context. The court noted that the relevant regulation (29 CFR Section 825.114) does not address whether medical evidence is required. The court concluded ultimately that the combination of lay and expert testimony produced by Schaar was sufficient to establish a genuine issue of fact as to whether she was incapacitated for more than three days.

Dept of Labor v. Div of Human Rights (New York App Div 03/11/2010) The public employer sought review of a determination by the State Division of Human Rights, which found that the employer discharged its employee in retaliation for complaining about sexual harassment. The court annulled that determination, based on application of res judicata and collateral estoppel arising from prior grievance arbitration proceedings. The court concluded that the employee was "precluded from relitigating either the arbitrator's findings of fact or his conclusions...."

Corbitt v. Home Depot (11th Cir 03/10/2010) The 11th Circuit has vacated its prior opinion (12/04/2009) and will rehear this case en banc.

In this factually complex case, the court previously upheld (2-1) summary judgment for the employer on Corbitt's claim of sexual harassment. The court found that the employer's conduct was not sufficiently severe or pervasive to support a hostile work environment claim. The DISSENT argued that the majority decided factual matters which should be reserved for jury determination.

Ensley v. Ford Motor Co (6th Cir 03/10/2010) Ensley sued the employer for violation of ERISA alleging misclassification interfering with acquisition of benefits. The trial court granted the employer's motion for summary judgment. The 6th Circuit affirmed in an unpublished decision.

Ensley argued that the employer classified him as "rehired" rather than "reinstated' to interfere with his acquisition of retirement benefits in violation of ERISA section 510. The employer countered that a 1991 policy directive divested all transferred employees of reinstatement rights. The court concluded the section 510 claim failed where the directive stripped Ensley of any legitimate expectation that the employer would credit his transferred service years when calculating employer pension benefits.

Huth v. Haslun (2nd Cir 03/11/2010) Huth sued the employer for violation of her First Amendment free speech rights pursuant to 42 USC Section 1983. The trial court denied the employer's motion for summary judgment. The 2nd Circuit reversed.

Because Huth passed along a coworker's concerns about the actions of certain employees to Huth's division head in a daily meeting, the court had no difficulty concluding that such speech was made pursuant to her official duties. The court found the lawsuit was personal in nature and did not involve a matter of public concern. The court stated that Huth lacked standing to raise a third party claim based on the coworker, where the coworker did not suffer any injury.