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Employment Law Memo 07/24/2019
LawMemo - First in Employment Law

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*** Featured Cases ***

9th - 9th Circuit will ask California Supreme Court whether Dynamex applies retroactively.

Vazquez v. Jan-Pro Franchising (9th Cir 07/22/2019)

On May 2, the 9th Circuit held that Dynamex v. Superior Court, 416 P.3d 1 (Cal. 2018), applies retroactively. (Dynamex adopted the "ABC test" for determining whether workers are employees under California wage order laws.) The 9th Circuit has now withdrawn its May 2 opinion, and granted a petition for rehearing. The order granting the rehearing states: "A revised disposition and an order certifying to the California Supreme Court the question of whether Dynamex Ops. W. Inc. v. Superior Court, 416 P.3d 1 (Cal. 2018), applies retroactively will be filed in due course."

CA - Anti-SLAPP statute applies to discrimination and retaliation claims.

Wilson v. Cable News Network (California 07/22/2019)

Wilson, a journalist for the employer news organization, sued for discrimination and retaliation based on race. The trial court granted the employer's anti-SLAPP motion and dismissed Wilson's claims. The Court of Appeal reversed, holding the anti-SLAPP statute does not apply to discrimination or retaliation claims. The Supreme Court reversed.

Wilson alleged he was fired for raising concerns about the employer's treatment of African-American men. The employer alleged Wilson's firing was an exercise of its free speech rights in determining who should speak on its behalf on matters of public interest.

The state Supreme Court held the anti-SLAPP statute applies to discrimination and retaliation claims. Because the employer established Wilson's claims arose, in part, through its protected activity, it was entitled to a minimal merit determination against Wilson's claims to be addressed by the Court of Appeal on remand.

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5th - Employee was unable to establish cognizable claim against employer for FMLA violation.

Tatum v. Southern Company Services (5th Cir 07/22/2019)

Tatum sued the employer for interference in his right to protected leave and retaliation for taking leave in violation of the Family and Medical Leave Act (FMLA). The trial court granted the employer's motion for summary judgment and dismissed the case. The 5th Circuit affirmed.

Tatum conceded that he was not actually covered by the FMLA because he had worked at a site at which, or within seventy-five miles of which, fewer than fifty workers were employed (29 USC Section 2611(2)(B).

Tatum contended the employer was equitably estopped from asserting a non-coverage defense and that he was entitled to judgment as a matter of law on his interference claim. Assuming, arguendo, that equitable estoppel applied and that Tatum could establish a prima facie case of interference and retaliation, the court found that summary judgment was still warranted because the employer articulated a legitimate reason for his discharge: After years of counseling and coaching by his supervisors, Tatum continued to behave inappropriately toward his managers and coworkers, and he delayed reporting a potentially fatal safety risk for over a month. Finally, the employer had a good-faith reason for firing Tatum, given a coworker's account that Tatum had held onto photographs of the potential safely violation as "job security." Tatum was unable to establish pretext.

5th - Proposed class arbitration was a gateway issue for the court, rather than the arbitrator to decide.

20/20 Communications v. Crawford (5th Cir 07/22/2019)

The principal question in these consolidated appeals was whether the availability of class arbitration, like contract formation, was a gateway issue that a court must decide, in the absence of clear and unmistakable language subjecting such questions of arbitrability to an arbitrator rather than a court. The 5th Circuit agreed with its sister circuits (4th, 6th, 7th, 8th, 9th, and 11th) and held that class arbitration was a gateway issue for courts to decide absent clear and unmistakable language to the contrary. The availability of class action was a foundational question of arbitrability, as the sister circuits had described.

The arbitration agreement provided:

"[T]he parties agree that this Agreement prohibits the arbitrator from consolidating the claims of others into one proceeding, to the maximum extent permitted by law. This means that an arbitrator will hear only individual claims and does not have authority to fashion a proceeding as a class or collective action or to award relief to a group of employees in one proceeding, to the maximum extent permitted by law."

While the employees cite to three provisions that vest the arbitrator with various general powers, when the court compared these provisions with the class arbitration bar at issue in this case, the court concluded that none of them state with the requisite clear and unmistakable language that arbitrators, rather than courts, shall decide questions of class arbitrability.

In Blevins, the court reversed the judgment of the trial court and remanded for further proceedings consistent with this opinion. In Crawford, the court vacated the judgment of the trial court and remanded with instructions to dismiss the case as moot, in light of the court's holding that the proposed class arbitration in this case was a gateway issue for the court, rather than the arbitrator, to decide.

7th - Employee's ADA accommodation claim failed because employee did not adequately engage in interactive process; comparator not similarly situated.

Graham v. Arctic Zone Iceplex (7th Cir 07/23/2019)

Graham sued the employer ice rink for violation of the Americans with Disabilities Act (ADA) for failure to accommodate and wrongful discharge. The trial court granted the employer's motion for summary judgment. The 7th Circuit affirmed.

The employer gave five reasons for discharging Graham: poor attitude about his change to night work, poor attitude toward customers; lack of timeliness in completing his duties, insubordination with management; and the Zamboni accident.

With respect to the failure to accommodate claim, the court found this was a textbook example of an employee not providing sufficient information to the employer to determine the necessary accommodation. Because Graham failed to uphold his end of the interactive process, the court affirmed as to the failure to accommodate claim.

Regarding the Zamboni accident, Graham argued the employer overstated the seriousness of it and that another former employee caused more damage, $1500, but was not discharge. The court determined Graham failed to provide enough evidence to support an inference of bad faith: this was the other employee's first strike, whereas Graham had several strikes before the Zamboni incident; Graham's accident posed dangers to the customers, the other employee's accident did not. The court concluded the two employees were not similarly situated.

8th - Unsuccessful assembly plant job applicant with one hand not substantially limited in the major life activity of working under Missouri Human Rights Act.

Heuton v. Ford Motor Co (8th Cir 07/23/2019)

The 8th Circuit affirmed summary judgment for the employer against Heuton's disability discrimination claim under the Missouri Human Rights Act (MHRA). Heuton, who was born without a left hand, alleged the employer discriminated against him when it refused to hire him in its assembly plant. The 8th Circuit affirmed summary judgment for the employer and held Heuton was not disabled under the MHRA because he failed to show he was, or was regarded as, substantially limited in the major life activity of working. Heuton was not significantly restricted in his ability to perform a broad range of jobs nor was he regarded as such by the employer.

MO - Missouri Human Rights Commission was not required to determine its jurisdiction before issuing right-to-sue letter.

Missouri v. Missouri Commission on Human Rights (Missouri Ct App 07/23/2019)

The Court of Appeals affirmed the trial court's dismissal of the employer's petition challenging the jurisdiction of the Missouri Human Rights Commission (Commission) to issue Holloway a right-to-sue letter. The employer argued that Holloway untimely filed his administrative claim of age and race discrimination and that, under statutory amendments that became effective in 2017, the Commission was required to determine its jurisdiction before issuing a right-to-sue letter. The Court of Appeals held the 2017 statutory amendments did not apply to Holloway's claim and the Commission was required to issue the right-to-sue letter by then-current statute.

MO - $1.2 million punitive damages award against state Department of Corrections not subject to reduction based on prior punitive damages award or statutory damages cap.

Dixson v. Missouri Dept of Corrections (Missouri Ct App 07/23/2019)

The Court of Appeals affirmed the trial court's decision not to reduce a $1.2 million punitive damages award on Dixson's state-law retaliation claim. The public employer argued it was entitled to a credit for punitive damages awarded in a prior case to a different plaintiff and that a newly-enacted damages cap applied. The Court of Appeals held the employer was not entitled to a credit for the prior punitive damages award because it involved different conduct and the statutory damages cap did not apply retroactively to Dixson's damages award.


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


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