Johnson v. Weld County (10th Cir 02/08/2010) Johnson sued the public employer after she was denied a promotion, asserting (among other things) claims for gender and disability discrimination under Title VII and the Americans with Disabilities Act (ADA). The trial court granted summary judgment in favor of the employer. The 10th Circuit affirmed, concluding that 1) Johnson produced insufficient evidence rebutting the employer's contention that the successful male candidate for the job at issue possessed superior qualifications; and 2) Johnson produced insufficient evidence that she was substantially limited in the major life activity of working, and thus produced insufficient evidence that she was disabled at the time the employer decided not to hire her. Although Johnson also attempted to proceed on her Title VII claim under the "direct evidence" model of proof, the court concluded that the trial court didn't err in excluding as inadmissible hearsay the statements offered as purported direct evidence.

Covell v. Menkis (7th Cir 02/08/2010) Covell sued the employer for wrongful discharge under 42 USC Section 1983 alleging violation of his property and liberty interest rights. The trial court granted the employer's motion for summary judgment. The 7th Circuit affirmed.

Covell was the director of the Illinois Deaf and Hard of Hearing Commission. Viewing the facts in the light most favorable to Covell, the court concluded that he failed to demonstrate that he had a property interest in his employment because he did not establish that there was a mutually explicit understanding that he could only be discharged for cause. Failing to find any evidence that any individual defendant disseminated the stigmatizing information to the public, the court concluded that Covell did not demonstrate that the defendants' actions deprived him of a liberty interest.

Turner v. The Saloon Ltd (7th Cir 02/08/2010) Turner sued the employer for Title VII sex discrimination, violation of the Americans with Disabilities Act (ADA), and failure to pay overtime wages under the Fair Labor Standards Act (FLSA). The trial court granted the employer's motion for summary judgment on all claims. The 7th Circuit affirmed in part and reversed in part.

Turner, a male waiter, was supervised by Lake, a female assistant manager. The employer argued that Lake's alleged acts of sexual harassment of Turner were time-barred. The court stated that under National Railroad Passenger Corp. v. Morgan, 536 US 101 (2002), the trial court "should have asked whether any of Lake's alleged acts of sexual harassment occurred within the statutory time period; it is undisputed that her August 2004 suggestive comment fell within that window. As such, the [trial] court should have analyzed whether all of Lake's conduct, taken as a whole, created an actionable hostile work environment." The court found that Turner had established a genuine issue of material fact on the hostile-workplace claim, but that the trial court could consider the employer's liability under an Ellerth/Faragher affirmative defense.

Richardson v. Friendly Ice Cream (1st Cir 02/05/2010) Richardson sued the employer for violating the Americans with Disabilities Act (ADA) by failing to accommodate her disability. The trial court granted the employer's motion for summary judgment. The 1st Circuit affirmed.

Richardson, an assistant restaurant manager, injured her shoulder on the job and had right shoulder surgery, after which she was limited on right arm movement overhead, repetitive movement, and lifting more than 5 pounds. The issue was whether Richardson could perform the essential functions of the assistant manager position with or without reasonable accommodation. The court concluded that any reasonable jury presented with this summary judgment record would find that it was essential for Richardson to assist in the kitchen, dining, and take-out operations, and that she had to be capable of performing a broad range of manual tasks in order to carry out that function. The court explained that it would be unreasonable for a jury to conclude that Richardson was able to perform the essential function of physically assisting with the restaurant's operations even when modifications (delegation and modified manner of performing manual tasks) were taken into account. The court found that Richardson failed to present sufficient evidence that she was a qualified individual within the meaning of the ADA.

Battoni v. IBEW Pension Plan (3rd Cir 02/05/2010) Battoni sued the union for violation of ERISA's anti-cutback rule (29 USC Section 1054(g)). The trial court ruled in favor of Battoni. The 3rd Circuit affirmed.

Two local union chapters merged and their pension and welfare plans were also combined. The disputed amendment required that Local 675 members would lose healthcare benefits if they chose the lump sum pension benefits, a condition not present for Local 675 members before the plans were combined. The court stated the disputed amendment constructively amended the pension plan because it conditioned receipt of the lump sum pension benefit, an accrued benefit, on surrendering healthcare benefits provided by the welfare plan. The court concluded this condition on the receipt of the lump sum pension benefit decreased the value of that benefit in violation of the anti-cutback rule.

Barbour v. UAW (4th Cir 02/04/2010) Retirees sued the union in state court, asserting state law claims for negligent misrepresentation and negligence. The retirees' claims arose from the allegation that the union provided them with false information regarding their eligibility to receive retirement incentive packages. The union removed the case to federal court on the basis of complete preemption under the National Labor Relations Act (NLRA). The trial court denied the retirees' motion to remand, concluded that their claims were "completely preempted by the duty of fair representation" arising under the NLRA, and dismissed for failure to comply with the NLRA's six-month limitations period. The 4th Circuit affirmed the trial court's determination that the case was timely removed, but otherwise reversed. The court remanded, with instructions to remand the case to state court.

1) 28 USC Section 1446(b) provides the statutory basis for removal jurisdiction, and generally requires that "a defendant" file a notice of removal within 30 days of receipt of a copy of a complaint. Since the statute references only a single defendant, there has been a split of authority as to how to treat cases involving multiple defendants. The court adopted the "last-served defendant" rule, holding that "in cases involving multiple defendants, each defendant, once served with formal process, has thirty days to file a notice of removal pursuant to 28 USC Section 1446(b) in which earlier-served defendants may join regardless of whether they have previously filed a notice of removal." The court joined the 6th, 8th, and 11th Circuits in adopting this approach. In reaching its conclusion, the court held that the "first-filed" rule set forth in McKinney v. Bd. of Tr. of Maryland Cmty. Coll., 955 F.2d 924 (4th Cir 1992) was non-binding dicta.

2) With respect to preemption, the court concluded that the trial court had conflated "complete" preemption with "ordinary" preemption, and had consequently erred in determining that it had subject matter jurisdiction. The court reasoned, "[a]lthough the [union's] claim that the duty of fair representation may be a defense of federal law to the Retirees' claims, it is a defense of ordinary preemption and not a case where Congress has clearly and unequivocally ‘displaced any state cause of action.'" The court noted that the United States Supreme Court has found complete preemption under only three statutes: the National Bank Act, Section 502(a) of the Employee Retirement Income Security Act (ERISA), and Section 301 of the Labor Management Relations Act (LMRA).

The DISSENT argued that McKinney was binding precedent.

Williams v. Board of Trustees (Illinois Ct App 02/02/2010) Williams challenged the Board of Trustees' denial of a line-of-duty pension. The trial court affirmed. The Illinois Appellate Court reversed.

The court found that the continued participation of the village's officials on the Board of Trustees, after the village was allowed to intervene in the hearing, did not create a per se conflict of interest; but the actions of the village's attorney, sitting as a member of the Board of Trustees, infected the whole proceedings and denied Williams a fair and impartial hearing. Because the statute (40 ILCS 5/4-121) governing the composition of the Board of Trustees was amended since Williams' hearing, the court found amended section 4-121 was procedural and could be applied on remand.

Robinson v. Tyson Foods Inc (11th Cir 02/05/2010) Robinson filed for Chapter 13 bankruptcy in 2002 and filed a plan to pay all creditors within five years. Robinson filed an employment discrimination suit in 2006 and did not notify the bankruptcy court of the suit. The trial court granted the employer's motion for summary judgment based on judicial estoppel. The 11th Circuit affirmed, finding that, even though Robinson paid all creditors in full, she had not presented sufficient evidence to show the trial court's finding that she had a motive to conceal her suit was clearly erroneous.

Mortenson v. Suffolk Cnty Police Dept (New York App Div 02/02/2010) Mortenson appealed the administrative determination that dismissed her claims that the employer discriminated against her based on sex and disability. The New York Appellate Division affirmed.

Mortenson complained that the employer discriminated against her by failing to make a reasonable accommodation for her alleged disability of postpartum depression. The court concluded that substantial evidence supported the administrative determination where Mortenson failed to make a prima facie demonstration that she was suffering from a disability as that term was defined in Executive Law, section 292(21) and/or that the employer had notice of the disability.

Miller v. Hersman (DC Cir 02/05/2010) Miller sued the employer for discriminatory non-promotion and discriminatory treatment. The trial court granted the employer's motions for summary judgment on the two non-promotion claims and dismissal on the treatment claims. The DC Circuit reversed.

The employer argued that Miller did not consult an Equal Employment Opportunity (EEO) counselor within 45 days of the alleged discriminatory action. The court found that the employer did not carry its burden of identifying evidence that demonstrated the absence of any genuine issue of material fact where it offered no evidence to resolve the disputed issue of when Miller knew or should have known of the alleged discrimination in Count I. Because the employer's statement and Miller's statement materially differ on the date of first contact to request an EEO counselor, the court found summary judgment inappropriate on Count II. The court concluded that Miller did respond to the employer's motion to dismiss Count III.

Balmert v. Reliance Standard Life (6th Cir 02/05/2010) Balmert sued the employer for violation of ERISA challenging the limited grant of long-term disability benefits for a closed period of time. The trial court granted the employer judgment on the administrative record. The 6th Circuit affirmed.

The court found that the administrative appeal was not procedurally unfair because the initial denial was based on lack of documentation and the limited closed period of benefits was based on the lack of documentation beyond September 29, 2006. The court stated the fact that Balmert did not request a copy of a known medical report or otherwise attempt to address the accuracy and reliability of the medical findings, did not render the administrative appeal procedurally defective.

Harris v. Metro Govt of Nashville (6th Cir 02/05/2010) Harris sued the employer (among other claims) for violation of the Family and Medical Leave Act (FMLA) alleging improper reduction in coaching supplemental pay after reinstatement. The trial court granted Harris's motion for judgment as a matter of law. The 6th Circuit reversed in part and affirmed in part.

Harris missed half of the basketball season and took FMLA leave from his teaching position for illness. The court found that under the coaching contract and the employer's policies, Harris was not entitled to the coaching supplement for the period when he did not coach. The employer argued that Harris received more than half of the full 12% head basketball coaching supplement. The court noted that, irrespective of how the coaching supplemental payments were divided, it was undisputed that Harris was not prejudiced by the reduction in the coaching supplement after he returned from leave. The court concluded that Harris could not prevail on his FMLA claim as a matter of law.

Harris v. City of Santa Monica (California Ct App 02/04/2010) Harris sued the employer, asserting a pregnancy discrimination claim under California's Fair Employment and Housing Act (FEHA). Harris prevailed after a jury trial. The court reversed. The court concluded that the trial court committed reversible error when it refused to instruct the jury on the employer's mixed-motive defense (that it would have taken the same employment action even absent discriminatory animus). The court noted that the California Civil Jury Instructions' (CACI's) omission of that defense does not undermine its validity. The court reasoned, "[w]e take from the CACI's omission...a likely recognition by the drafters of the CACI that the law involving the mixed-motive defense is not stable and clear, but instead arguably in flux."

Hicks v. UBS Financial (Utah Ct App 02/04/2010) The employer appealed the trial court's order vacating an arbitration award. The trial court's order was based on its determination that the arbitration panel's discovery decisions substantially prejudiced Hicks' right to present his case. The court reversed. The court concluded that 1) it had jurisdiction to consider the matter, pursuant to Amalgamated Transit Union, Local 382 v. Utah Transit Authority, 99 P.3d 379 (2004); and 2) although discovery decisions can provide a basis for vacatur, in this particular case Hicks' rights were not substantially prejudiced.

Goodman v. Best Buy Inc (Minnesota 02/04/2010) Goodman sued the employer in state court, asserting claims under the federal Family and Medical Leave Act (FMLA) and the Minnesota Human Rights Act (MHRA). The employer removed the case to federal court, where the federal trial court granted summary judgment in the employer's favor on the FMLA claim and dismissed the MHRA claim. Goodman re-filed the MHRA claim in state court, but the state trial court dismissed the claim as untimely. The appellate court below reversed, and the court affirmed.

The primary issue on appeal was whether 28 USC Section 1367 (the federal supplemental jurisdiction statute) entirely suspended the running of the limitations period for Goodman's FMLA claim. Section 1367(d) provides that the running of a limitations period on a state law claim "shall be tolled" during the time the claim is pending in federal court and for 30 days after dismissal. The court held that Section 1367 completely suspends the running of the limitations period during the time a state law claim is pending in federal court (and 30 days thereafter), and does not merely suspend the expiration of the limitations period. The court rejected the argument that Section 1367(d) acts to extend the limitations period of a claim expiring during pendency of federal proceedings, so that the claim must be filed within 30 days of termination of federal court proceedings in order to be timely. The court acknowledged that it was adopting the minority approach among state appellate courts on this issue.

Doyle v. City of Medford (Oregon 02/04/2010) Doyle and other retired municipal employee sued the employer, asserting (among other things) a claim for deprivation of their property interests without due process. The trial court granted summary judgment in favor of the employer, based on its determination that no property interest was created by ORS 243.303(2). ORS 243.303(2) provides that local governments "shall, insofar as and to the extent possible," make the same health care insurance coverage available to retired employees as they make available to current employees.

To assist in determining whether this provision creates a property interest, the 9th Circuit certified the following question on appeal: "[w]hat amount of discretion does [ORS] 243.303 confer on local governments to determine whether or not to provide health insurance coverage to their employees after retirement?" The court held that "ORS 243.303(2) creates an obligation for local governments to make health insurance coverage available for retirees; however, we also conclude that the obligation is limited to making coverage available ‘insofar as and to the extent possible,' and that, depending on the circumstances, the local government may be excused entirely from its obligation if it can demonstrate that it was not possible, under the statutory standard, to make coverage available." The court noted that local governments bear the burden of establishing the impossibility of providing such coverage.

Potlatch Educ Assoc v. Potlatch School Dist (Idaho 02/03/2010) The teachers' union sued the public school district, asserting that the district violated the parties' collective bargaining agreement when it allegedly mischaracterized a teacher's one day absence (spent "defending" the final project in his Masters Degree program) as "personal" rather than "professional" leave. The trial court granted summary judgment in favor of the employer. The court affirmed, concluding that 1) the agreement gave the employer "unfettered discretion" to authorize leave; and 2) there was no indication that the employer acted in bad faith.

Chiofalo v. Kelly (New York App Div 02/04/2010) Chiofalo filed a petition pursuant to CPLR article 78 challenging his discharge following an administrative hearing. The New York Appellate Division denied the petition.

Chiofalo was discharged for marijuana use. Chiofalo argued that the police commissioner substituted his own judgment on matters of credibility and that the required use of the radioimmunoassay method of hair testing violated the Fourth Amendment and the collective bargaining agreement. The court found that the police commissioner was entitled to substitute his own judgment on matters of credibility where substantial evidence supported that judgment, ie the radioimmunoassay showed that the high levels of marijuana could not be caused by ingesting marijuana in contaminated food and inhaling second hand smoke. The court applied City of New York v. Patrolmen's Benevolent Assn. of City of NY, Inc, 2009 NY Slip Op 09314 (2009), that the commissioner was empowered to choose the method of testing and that choice was not subject to collective bargaining.

Physio GP Inc v. Naifeh (Texas Ct App 02/04/2010) Dissent: http://case.lawmemo.com/tx/physio1.pdf

Naifeh sued the employer corporation and the owner-employees of the corporation for wrongful discharge against public policy. The trial court granted summary judgment to defendants on the alter ego claim, and, in a bench trial, found in favor of Naifeh. The Texas Court of Appeals reversed.

Naifeh alleged she was discharged for refusing to sign off on fraudulent paperwork on patient treatment used for billing insurers. The issue was whether an individual, as opposed to the employer, could be held personally liable for a Sabine Pilot violation (discharged for refusal to commit an illegal act). The court followed the reasoning of other states concluding that, absent a finding of alter ego, corporate employees could not, in their personal capacity, wrongfully discharge an employee because they had no personal authority to fire an employee.

The DISSENT argued that the majority's rationale rested on a legal fiction: no one disputes the fact that Naifeh was fired by the owner-employee. The dissent viewed the public policy considerations raised in Sabine Pilot, (to relieve at-will employees from being pressured to commit criminal acts), would rationally apply to both employer and its agents.

King v. McMillan (4th Cir 02/03/2010) King sued the public employer, asserting (among other things) a Title VII claim for sexual harassment. King prevailed after a jury trial. The 4th Circuit affirmed. King's claim arose from her employment at a sheriff's department, and her claim was filed against the sheriff in his official capacity. During the pendency of the case, the sheriff lost an election and was replaced by his successor. Pursuant to Fed.R.Civ.P. 25(d), the trial court substituted the successor in her official capacity as the defendant. On appeal, the successor argued that she couldn't be substituted as defendant because under Virginia law each sheriff is a singular entity with an independent tenure. The court rejected that argument, reasoning that "acceptance of this argument would allow state law to override Title VII in violation of the Supremacy Clause."

Demings v. Nationwide Life Ins Co (6th Cir 02/03/2010) A county sheriff sued the insurance company administering his employees' "deferred compensation plan" in a class action, on behalf of all public employers who sponsor 26 USC Section 457(b) deferred compensation plans. The employer asserted claims for breach of fiduciary duty and unjust enrichment, based on the insurance company's receipt of revenue-sharing payments from the mutual funds in which the plan invested. The trial court dismissed, based on its determination that the class action was barred by the Securities Litigation Uniform Standards Act (SLUSA). SLUSA provides that private state law "covered" class actions alleging untruth or manipulation in connection with the purchase or sale of a "covered" security may not "be maintained in any State or Federal court." The 6th Circuit affirmed, agreeing with the trial court that the class action did not fit within the narrow state-action exceptions to SLUSA preclusion.

Dotson v. Amgen Inc (California Ct App 02/03/2010) Dotson sued the employer, asserting a state law whistleblower claim. The employer moved to compel arbitration, but the trial court denied that on the ground that the parties' arbitration agreement was unconscionable. The trial court based that determination on a clause in the agreement limiting each party to one deposition "of one individual and any expert witness designated by another party." The clause also provided that additional discovery could be had "upon a showing of need." The court reversed, concluding that "the language permitting the arbitrator to expand discovery upon a showing of need removes any taint of ‘unconscionability' from the agreement."

Bray v. Aberdeen Police Dept (Maryland Ct App 02/03/2010) The trial court affirmed the administrative hearing board which found Bray had committed misconduct and recommended discharge. The Maryland Court of Special Appeals affirmed.

Bray was charged with making false statements during interrogation, missed court appearances, and providing false or inaccurate information on his payroll sheet. The primary issues on appeal was whether Bray was provided proper notice under the Law Enforcement Officers' Bill of Rights (LEOBR) of the nature of the complaint prior to his interrogation and of the nature of the charges prior to his administrative hearing. Initially, the court concluded Bray had the option to pursue the issue of sufficiency of the notice before the hearing (Md Code, Public Safety Article, section 3-105) and after the hearing (section 3-109). The court found that the notice before interrogation correctly and adequately set forth the nature of the investigation up to that point in time by clearly identifying the date of the alleged incident and the exact misconduct charged - failure to report to juvenile court. Because the notice before hearing included the charged offense, the relevant law, and a brief statement of facts in support of the charges, the court concluded that the notice was sufficient to allow Bray to prepare for the administrative hearing.

Schoonmaker v. Spartan Graphics Leasing (6th Cir 02/03/2010) Schoonmaker sued the employer for violation of the Age Discrimination Employment Act (ADEA) alleging wrongful discharge. The trial court granted the employer's motion for summary judgment. The 6th Circuit affirmed.

Schoonmaker, 58, was let go as part of a reduction in force, while Taylor, 29, was retained. The issue was whether Schoonmaker was replaced by someone outside of the protected class. In work force reduction cases, the court stated the test was modified to require additional direct, circumstantial, or statistical evidence tending to indicate the employer singled out the employee for discharge for impermissible reasons. The court further explained in Barnes v. GenCorp Inc., 896 F2d 1457 (6th Cir 1990), that a person was replaced only when another was hired or reassigned to perform the discharged employee's duties. The court concluded that Schoonmaker had failed to present a prima facie case where she did not show that another employee was hired or reassigned to perform her duties.

Assuming a prima facie case was established, the court found that Schoonmaker could not prove that the employer's proffered reason - low productivity and the inability to get along with others - had no basis in fact, did not actually motivate the employer's challenged conduct, or was insufficient to motivate the employer's challenged conduct.

Johnson v. Univ of NC (North Carolina Ct App 02/02/2010) Johnson sued the public employer, alleging that the employer breached his teaching contract when it discharged from his job as a university professor. The trial court dismissed for lack of subject matter jurisdiction. The court affirmed, concluding that Johnson failed to exhaust his administrative remedies. The court noted that Johnson initiated, but failed to complete, the multi-step administrative review process provided by the employer.

Chamber of Commerce of USA v. Edmonson (10th Cir 02/02/2010) The Oklahoma Taxpayer and Citizen Protection Act is one of a number of recent state enactments regulating illegal immigration and verification of employment eligibility. Various chambers of commerce and trade associations sued, challenging Sections 7(B), 7(C), and 9 of the Act on the basis of federal preemption. Section 7(B) forces businesses to utilize the Basic Pilot Program to verify their employees' work authorization status. Section 7(C) provides that it is a discriminatory practice for an employer to discharge an authorized worker while retaining a worker that the employer knows (or reasonably should know) is unauthorized to work. Section 9 requires contractors to either verify the work eligibility of their individual independent contractors or withhold certain taxes from them. The trial court granted preliminary injunctions as to all three provisions. The 10th Circuit affirmed as to Section 7(C) and Section 9, but reversed as to Section 7(B). The court concluded that the plaintiffs were likely to succeed on the merits of their claims that Section 7(C) is expressly preempted and Section 9 is impliedly preempted.

Smith v. Johnson and Johnson (3rd Cir 02/02/2010) Smith sued claiming overtime pay under the Fair Labor Standards Act (FLSA). The trial court granted summary judgment for the employer; the 3rd Circuit affirmed.

Smith was a senior professional sales representative who visited physicians and hospitals to extol the virtues of a specific drug. The court found that she was exempt from the FLSA because she was an "administrative employee." She had a non-manual job that required her to form a strategic plan to maximize sales, and executed nearly all of her duties without direct oversight. She described herself as the manager of her own business who could run her own territory as she saw fit. (Although the trial court specifically found that Smith was not an "outside salesman," the 3rd Circuit court declined to consider that issue.)

ILWU v. Port of Tacoma (Washington Ct App 02/02/2010) The longshore workers' union filed suit, seeking enforcement of an arbitration award relating to a representation dispute. The trial court dismissed for lack of subject matter jurisdiction. The court reversed, but concluded that the Public Employment Relations Commission (PERC) had exclusive decision-making authority over which union rightfully performed the disputed work. The court remanded to the trial court for determination of what other relief the union might be entitled to under the arbitration award.

Patterson v. Methodist Healthcare (Tennessee Ct App 02/02/2010) Patterson (a physician) sued the hospital after he was deemed to have voluntarily relinquished his staff privileges by failing to maintain compulsory insurance coverage. Patterson asserted claims for (among other things) breach of contract and intentional interference with business relationships. The trial court granted summary judgment in favor of the hospital. The court affirmed, concluding that 1) Patterson's breach of contract claim failed, because it was undisputed that Patterson did not obtain the required coverage and was thus the first to breach the parties' contract; and 2) Patterson's intentional interference claim failed, because Patterson was unable to establish that the hospital's actions were based on "improper motive or improper means."

Hicks v. Baines (2nd Cir 02/02/2010) Hicks sued the employer alleging retaliation under 42 USC sections 1981, 1981a, and 1983 and the New York State Human Rights Law (NYSHRA). The trial court granted the employer's motion for summary judgment on all claims. The 2nd Circuit affirmed in part and reversed in part.

Hicks provided information on another employee's discrimination claim and testified on behalf of that employee's workers' compensation claim for stress. The dominant issue on appeal was whether Hicks suffered an adverse employment action. The court found that he did on one workplace sabotage claim (locking a door to the computer room which prevented setting the alarm, and then disciplining for failure to set the alarm) and several punitive scheduling claims (intentionally adjusting shift times, break times, work locations, and work assignments, which required Hicks to work alone). The court concluded that the trial court did not apply the broadened scope of retaliation claims announced in Burlington N. & Santa Fe Ry. Co. v. White, 548 US 53 (2006), holding that the proper inquiry was whether "the employer's actions [were] harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination."

Phillips v. US Bank (Wisconsin Ct App 02/02/2010) Phillips sued the employer, alleging that the employer discharged her in order to avoid paying promised benefits. Although the benefits were described as having accrued, receipt of the benefits was contingent on continued employment. The trial court granted summary judgment in favor of the employer. The court reversed.

The court noted that an employer is not obligated to act in "good faith" when exercising its right to discharge an at-will employee. The court concluded, however, that "an at-will employee does not forfeit benefits that have accrued during his or her employment even though the agreement governing those benefits conditions their receipt on the employee's continued employment [,] if the employer fires the employee solely to prevent the employee from getting the accrued benefits…." The court observed that, although an employer need not comply with "good faith" in discharging an at-will employee, "an employer must comply in good faith with its 'contractual obligations.'" The court applied agency principles in arriving at its decision.

Laborers Intnl Union v. NLRB (10th Cir 02/02/2010) The union petitioned for review of the National Labor Relations Board's (NLRB's) decision finding it in violation of the National Labor Relations Act (NLRA). The NLRB determined that the union violated the Act when it persuaded an employer to discharge a union member for non-payment of dues, without providing the union member with sufficient notice of his delinquency and a reasonable opportunity to cure it. The 10th Circuit affirmed, concluding that the NLRB's decision was supported by substantial evidence. The court noted that, "before invoking the union-security clause against an employee, the union's obligation to deal fairly with employees requires it to: (1) provide the employee with actual notice of the precise amount due, including the months for which dues are owed; (2) explain how it computed the amount due; (3) give the employee a reasonable deadline for payment; and (4) explain to the employee that failure to pay will result in discharge."

Malallah v. Noble Logistic Services (Texas Ct App 02/02/2010) Malallah sued the employer for breach of his three-year term employment contract. The trial court rendered judgment upon a jury verdict that Malallah's claim was time-barred. The Texas Court of Appeals affirmed.

Malallah argued that he could not be discharged without cause absent written notice or that a cause of action accrued each time the employer failed to pay his wages after discharge. The court found a notice requirement for without cause discharge was not implied from a contract provision of no notice for discharge for cause. The court stated that an employee under a term contract who was discharged before the end of the contract was entitled to damages, not wages.

Lane v. Harborview Medical Cntr (Washington Ct App 02/01/2010) Lane sued the public employer, asserting a claim under Washington's employee misclassification act, Chapter 49.44 RCW. Lane's claim arose from the allegation that she had been misclassified as a "per diem" nurse rather than a part-time classified nurse. The trial court granted summary judgment in favor of the employer. The court affirmed, concluding, "[b]ecause the commitments between Lane and the employer were objectively different from the commitments between a part-time classified nurse and the employer, Lane was not misclassified." The court applied the "objective standards" set forth in RCW 49.44.160 in reaching its conclusion.

Hinkel v. Sataria Distribution (Indiana Ct App 02/01/2010) Hinkel sued the employer for breach of contract and/or promissory estoppel. The trial court granted summary judgment in favor of the employer. The Indiana Court of Appeals affirmed.

Hinkel alleged he was orally promised one year's salary and insurance coverage if involuntarily discharged. The court held that the written contract, which did not provide for one year's salary and insurance coverage, constituted a final representation of the parties' agreement. The court found that Hinkel provided no consideration if the employer promised salary and insurance after the execution of the written agreement. With respect to the promissory estoppel claim, the court found that Hinkel did not show an injury so independent and severe that injustice could only be avoided by enforcement of the employer's alleged promise.

The DISSENT argued the parol evidence rule did not apply in that a genuine issue of material fact existed regarding whether the parties intended the employer's written offer to be completely integrated, and in that the terms of the severance package did not vary from or contradict the terms of the written offer.

Hamilton-Ryker Group v. Keymon (Tennessee Ct App 01/28/2010) The employer sued Keymon, its former employee, claiming violation of a non-competition agreement, misappropriation of confidential information, and violation of the Tennessee Trade Secrets Act. After a bench trial, the trial court held for the employer and awarded over $900,000, a doubling of the actual damages.

Keymon and the employer had executed a confidentiality agreement and an agreement not to compete. After the employer laid off Keymon, she immediately went to work for one of the employer's customers, doing essentially the same work she had done before. She also emailed confidential documents from the employer to her personal email account.

Although the non-competition agreement did not contain any geographic limitation, the court still found it to be reasonable and enforceable because "a restriction against soliciting the employer's customers can in effect substitute for a geographic limitation." The emailing of documents was a misappropriation of trade secrets, done willfully and maliciously, and thus the actual damages could be doubled as provided in the Trade Secrets Act. The calculation of actual damages properly considered both the loss to the employer and the amount by which Keymon was unjustly enriched.

Wicomico Fraternal Order of Police v. Wicomico Cnty (Maryland Ct App 02/01/2010) The voters in Wicomico County enacted an amendment to the County charter which required the County Council to enact a law providing for collective bargaining with binding arbitration of disputes between the County and the deputies in the Wicomico County Sheriff's Office. The Maryland Court of Special Appeals held the charter amendment to be unconstitutional. The Maryland constitution allows voter-initiated charter amendments only if they are amending the form or structure of government. However, the amendment in this case served as a vehicle for adoption of local legislation, a function which the constitution vests in the County Council.

LaMore v. Check Advance (Tennessee Ct App 01/28/2010) LaMore recovered a jury verdict on her claim that she was discharged because she reported her manager to authorities for suspected sexual abuse of a minor. The jury awarded $8,250 in back pay plus $500,000 in punitive damages, and the trial court awarded $10,288 in front pay and reduced the punitive damages award to $250,000. The Tennessee Court of Appeals affirmed.

The employer argued that (1) no reasonable juror could find by clear and convincing evidence that its actions were egregious enough to justify punitive damages, and (2) the award, even as reduced, is excessive and violates due process.

(1) The court said that the jury could have found that the employer concealed the truth, and that the egregious nature of the employer's actions was supported by a "strong public policy in favor of reporting suspected sexual abuse of a child and a strong public policy against allowing any unnecessary adverse consequences to the one doing the reporting."

(2) After a de novo review of punitive damages, the court found that $250,000 did not violate due process, emphasizing the reprehensible nature of the employer's actions (including trickery and deceit), the vulnerability of a low-paid at-will employee, and the risk to the child at issue.

Hippe v. Miller & Martin (Tennessee Ct App 01/28/2010) Hippe had been a partner in the predecessor to the Miller & Martin law firm. He sued claiming that the firm breached the contract he had with the predecessor by not paying retirement benefits when he retired from the law practice in 2008. The trial court dismissed; the Tennessee Court of Appeals affirmed.

Hippe's complaint stated that he had been compelled to leave the firm in 1994. The court treated this allegation as a claim that the firm had anticipatorily breached the contract at that time. Applying a six year statute of limitations, Hippe's suit, filed in 2009, was out of time.

Bailey v. Blount County (Tennessee 01/28/2010) Bailey sued the employer for conspiring to deny state and federal due process rights, wrongful discharge, defamation, IIED, and several other claims. The trial court granted the employer's motion for summary judgment on all claims. The Tennessee Court of Appeals reversed. The Tennessee Supreme Court affirmed in part and reversed in part.

The issue was whether Bailey was afforded adequate due process in conjunction with his dismissal from his position as a nontenured, nonlicensed, classified teaching assistant. The court held he was. Under Blount County Board of Education (BCBOE) Policy 5.202, the court found Bailey was provided with a pre-termination hearing allowing only a written response and a post-termination hearing before an impartial hearing officer. The court determined this procedure satisfied constitutional due process requirements. The court reversed the summary judgment on all remaining claims because the failure to exhaust remedies did not encompass the remaining claims.

Benson v. AJR Inc (West Virginia 01/28/2010) Benson sued the employer for breach of contract. The jury found that Benson breached the contract and, in special interrogatories, found that the reason for Benson's discharge was drug use, not dishonesty. The trial court entered judgment for liability for Benson. The West Virginia Supreme Court of Appeals affirmed.

Benson's contract guaranteed employment pay for eight years unless discharged for (a) dishonesty, (b) conviction of a felony, or (3) voluntary termination of the contract by Benson. The court previously remanded the case for a jury to determine whether Benson was discharged for dishonesty or drug use. Under the plain language of the employment contract and the jury's findings, the court stated that Benson's breach of the contract was not an enumerated reason that would relieve the employer of the duty to pay him his salary under the remainder of the contract period.

Marshall County v. Carter (West Virginia 01/29/2010) Dissent: http://case.lawmemo.com/wv/carterd.pdf

Briggs complained to the State Human Rights Commission alleging failure to hire disability discrimination. The administrative law judge (ALJ) ordered the employer to produce for in camera review any audio record of the meeting which discussed filling the telecommunications operator position. The employer requested a writ of prohibition of the disclosure of allegedly privileged material. The West Virginia Supreme Court of Appeals denied the writ requested.

The employer argued the ALJ's inspection would violate the attorney-client privilege, the work product doctrine, and the executive session privilege of the Open Governmental Proceedings Act (OGPA). Finding the employer's arguments on the attorney-client privilege and the work product doctrine to be without merit, the court held that when a party to a case brought under the West Virginia Human Rights Act asserts that a communication sought to be discovered is privileged, the ALJ should conduct an in camera inspection of the requested materials to determine whether the communication is privileged.

The court stated that the OGPA " ... and its executive session exception are concerned with the public's access to government meetings, not what may or may not be obtained by means of civil discovery. Mr. Briggs is not simply a member of the public but a party to a discrimination claim with a critical interest in whether the executive session included discussions indicating unlawful motives that would support his claim." The court held that the provisions of OGPA which recognized in specific and limited circumstances the right of governing bodies to meet in an executive session which was closed to the public was not intended to prevent the legitimate discovery in a civil action of matters discussed in an executive session which were not otherwise privileged.

The DISSENT argued that government bodies could not operate effectively if their executive session discussions were subject to lawsuits.

Brett v. Media General Operations Inc (Kentucky Ct App 01/29/2010) Brett sued the employer for breach of contract, breach of the implied covenant of good faith and fair dealing, and other claims. The trial court granted the employer's motion for summary judgment. The Kentucky Court of Appeals affirmed.

Brett was discharged after four women co-workers complained that he sexually harassed them on numerous occasions. Brett argued that he presented sufficient evidence to conclude that his discharge constituted a breach of contract. The court found that Brett was discharged under the morals clause without severance pay and only 24 hours notice. Absent specific contractual provisions, the court stated that the employer was under no obligation to provide Brett with additional investigation measures or an opportunity to be heard. The court concluded that Brett failed to demonstrate any genuine issue of material fact on the breach of contract claim.

Bickford v. Colonel, Dept of State Police (Massachusetts Ct App 01/29/2010) The trial court affirmed the administrative decision suspending Bickford's warrant as a special State police officer. The Massachusetts Appeals Court affirmed.

The court agreed with Bickford that one reason listed for the suspension, failure to cooperate with the investigation, was legal error because public employees could not be disciplined simply because the Fifth Amendment was invoked. The court found that the administrative findings regarding Bickford's role in the disappearance of another employee's weapon and his grossly deficient approach to record-keeping had substantial evidentiary support in the record and, by themselves, provided compelling reasons for suspension of his warrant. The court concluded the impermissible ground did not invalidate the suspension order.

Nordberg v. Dept of Educ (Massachusetts Ct App 01/29/2010) Nordberg sued the Massachusetts Department of Education (DOE) alleging improper use of the DOE's waiver power with respect to certified school business administrators. The trial court granted the DOE's motion to dismiss based on immunity from suit for discretionary acts. The Massachusetts Appeals Court reversed.

Nordberg alleged that waivers of the statutory requirement that school business administrators be certified were requested electronically, and all such requests were granted electronically with no evaluation or review by anyone at DOE. The court found such an alleged process neither exercised nor abused discretion and, as such, discretionary immunity did not apply.

Ramirez-Lebron v. Intnl Shipping Agency (1st Cir 01/29/2010) Ramirez-Lebron sued the employer and a group of three employees (G3) pursuant to Section 301 of the Labor Management Relations Act (LMRA) alleging the employer and G3 fraudulently procured an arbitration award granting seniority rights to G3 in breach of the collective bargaining agreement (CBA). The trial court dismissed the complaint for lack of standing and for failure to exhaust contractual remedies under the CBA. The 1st Circuit reversed.

The court stated the issue was not whether Ramirez-Lebron had standing, but rather whether he alleged circumstances sufficient to sustain a cause of action for breach of the CBA against the employer under Section 301. The court agreed that the employer's conduct was suspect because the claim of a sham transaction, in the sense of being both covert and in bad faith, implied a determination to repudiate the relevant provisions of the contract and thereby avoid arbitration. The court held that the factual allegations of Ramirez-Labron's compliant were sufficient to withstand the employer's motion to dismiss.

Professional Firefighters v. Local Govt Center Inc (New Hampshire 01/29/2010) The firefighters' union sought records from the municipal governments' association, pursuant to New Hampshire's Right-to-Know Law. The trial court granted summary judgment in the union's favor, concluding that 1) two of the association's subsidiaries were subject to the Right-to-Know Law; and 2) certain salary information about the association's employees was subject to disclosure. The trial court also awarded attorney fees to the union. The court reversed as to attorney fees, but otherwise affirmed. The court rejected the association's argument that "because its employees are ‘private' by nature, their salary records are entitled to a greater degree of privacy protection under the Right-to-Know Law than are public employees' records." The court noted, "[w]ith respect to harm, we [have] noted that salaries of public officials and employees, both state and municipal, have been commonly published in different venues ‘without significant damage to individual dignity or the efficient management of the State system.'"

SEIU v. City of Houston (5th Cir 01/29/2010) A union representing over 5000 Houston janitors staged a strike, and applied for permits to conduct parades, marches, and rallies in support of that strike. The city of Houston denied several of the requests, so the union sued - alleging that the city ordinances under which the permit applications were processed violated the First Amendment. The trial court granted some relief. The 5th Circuit affirmed in substantial part. The court noted, "[w]e proceed slightly further in invalidating the City's rules than did the district court but leave most of the City's scheme intact." With respect to reversal, the court concluded that 1) the city's sound ordinance was unconstitutional, to the extent it imposed "[t]he limit of two permits per location per thirty-day period[;]" 2) limitations in the city's parade ordinance, which severely limited the hours of the day when parades could be held, was unconstitutional; and 3) the city's park permitting ordinance requirements were unconstitutional in total.

Roosa v. Belfiore (New York App Div 01/26/2010) Roosa was discharged from public employment after a hearing. Roosa sought review of that determination in this CPLR 78 proceeding. The court granted Roosa's petition, remanding for calculation of back pay and benefits, and ordering a new administrative review of the hearings officer's determination. The court reasoned that the individual charged with reviewing the hearings officer's determination lacked supervisory authority to carry out that function.

Williams v. City of Dequincy (5th Cir 01/28/2010) Williams was sentenced to eight years of hard labor in prison. While serving his sentence, Williams was forced to work for a local mayor and police chief. Williams' work was performed outside of the prison, and inured to their personal benefit. Williams sued the two local officials, asserting a claim that he was entitled to minimum wages and overtime under the Fair Labor Standards Act (FLSA). The trial court granted summary judgment in favor of the two local officials. The 5th Circuit affirmed, concluding that 1) Williams was not an "employee" of the Mayor; and 2) Williams was not "engaged in commerce" while working for the police chief. The court declined to address the issue "whether the FLSA can apply to inmates, like Williams, who are sentenced to hard labor but whose work is carried out for private employers outside the prison."