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Sunday, October 23, 2011

Decisions of interest concerning Labor and Employment Law

Decisions of interest concerning Labor and Employment Law
Source: Justia October 21, 2011
Court: U.S. 1st Circuit Court of Appeals
Docket: 09-1769
 October 20, 2011
Judge: Thompson
Areas of Law: Civil Rights, Labor & Employment Law
Plaintiff, a former municipal employee, claimed that he was harassed and terminated for political reasons. The district court dismissed his suit, alleging various claims under 42 U.S.C. 1983. The First Circuit affirmed in part, but vacated with respect to claims of political discrimination and free-speech retaliation against the mayor and municipality as involving unresolved issues of fact.

Court: U.S. 1st Circuit Court of Appeals
Docket: 10-1953
 October 14, 2011
Judge: Howard
Areas of Law: Labor & Employment Law
Plaintiff worked for defendant, primarily as a stevedore, for 57 years. In 2006-2007, he missed several months of work due to physical ailments and received disability benefits. Plaintiff claims that when he returned to work, his colleagues insulted his age and medical conditions, often in the presence of supervisors. Plaintiff, then age 71, was first suspended, then terminated, after the company's human resources department was informed that he had assaulted his supervisor (also more than 60 years old). In a case under the Discrimination in Employment Act, 29 U.S.C. 621-634, the district court entered summary judgment in favor of the employer. The First Circuit affirmed, finding no evidence of age bias.

Court: U.S. 5th Circuit Court of Appeals
Docket: 10-30854
 October 19, 2011
Judge: Stewart
Areas of Law: Civil Rights, Constitutional Law, Labor & Employment Law
Plaintiff brought suit under the Americans with Disabilities Act (ADA), 42 U.S.C. 12102, against defendant for failing to provide a reasonable employment accommodation in consideration of his diabetes. The district court entered summary judgment in favor of defendant. The court held that because plaintiff's diabetes treatment regiment required only modest dietary and lifestyle changes, no genuine issue existed as to whether his impairment substantially limited his eating. Therefore, the district court properly concluded that plaintiff was not disabled within the meaning of the ADA. The court also held that, based upon the record evidence, no reasonable juror could conclude that defendant was unwilling to, in good faith, participate in an interactive process to reasonably accommodate plaintiff's needs. Accordingly, the judgment was affirmed.

Court: U.S. 7th Circuit Court of Appeals
Docket: 10-2212
 October 18, 2011
Judge: SYKES
Areas of Law: Labor & Employment Law
In 2004 plaintiff began working with a new supervisor,who removed many of plaintiff's job duties because he thought plaintiff, age 57, was too old. Plaintiff complained to the vice president of the company and the Equal Employment Opportunity Commission. The vice president investigated and eventually fired the supervisor. In the meantime, plaintiff took leave, under the Family Medical Leave Act, 29 U.S.C. 2601. When he returned, a new supervisor assigned plaintiff to revamp a training class. Plaintiff suffered a psychological breakdown, exhausted his disability leave, and retired. He sued for discrimination and retaliation (Age Discrimination in Employment Act, 29 U.S.C. 621) and for interference with reinstatement under the FMLA. The district court granted summary judgment for the employer. The Seventh Circuit affirmed. Although the evidence, viewed in plaintiff's favor, established that the 2004 supervisor discriminated against him because of age, the ADEA provides no remedy because the discrimination did not cause any loss and was not linked to the disability that precipitated early retirement. There was no evidence of retaliation based on plaintiff's complaining about discrimination. There was no claim under the FMLA because when plaintiff returned to work after medical leave, the company assigned him equivalent duties without regard to his medical leave.

Court: U.S. 7th Circuit Court of Appeals
Docket: 09-2042
 October 18, 2011
Judge: SYKES
Areas of Law: Civil Rights, Labor & Employment Law
Plaintiff was terminated as a probationary police officer. A supervisor stated that plaintiff violated departmental rules by revealing confidential information to another recruit during a training exercise, repeatedly failed to pass the firearms qualifying test, and admitted not reading the firearms manual (another rules violation). Plaintiff's father, then a deputy sheriff, argued for his son's reinstatement. Believing that the father had placed a threatening call to a school attended by the supervisor's children, the supervisor filed a complaint that resulted in a recommendation of termination and the father's early retirement. The father's suit under 42 U.S.C 1983 was dismissed; the Seventh Circuit affirmed. Plaintiff's (son) suit, alleging bias based on his Polish ethnicity was also rejected by the district court. While both suits were proceeding, father and son pursued administrative remedies before the Equal Employment Opportunity Commission, obtained right-to-sue letters, and jointly filed a suit under Title VII, 42 U.S.C. 200e. The district court dismissed, citing res judicata. The Seventh Circuit affirmed.

Court: U.S. 7th Circuit Court of Appeals
Docket: 10-2117
 October 18, 2011
Areas of Law: Health Law, Labor & Employment Law
Plaintiff had previously worked for the employer before being hired as a full-time employee in 2005. When budget cuts necessitated layoffs, plaintiff thought his job was secure until he requested leave for surgery and was let go. The district court entered summary judgment for employer on claims under the Family and Medical Leave Act, which guarantees employees 12 workweeks of leave for serious health conditions, including the knee surgery plaintiff had, 29 U.S.C. 2612(a)(1). The Seventh Circuit reversed. Because there was evidence from which a jury could infer that termination was based on the leave request, summary judgment was inappropriate. A memo made by a supervisor, for purposes of discussing the termination with the employer's attorney, did not fit within the crime-fraud exception and is protected by attorney-client privilege.

Court: U.S. 8th Circuit Court of Appeals
Docket: 10-2393
 October 14, 2011
Judge: Bye
Areas of Law: Civil Rights, Constitutional Law, Labor & Employment Law
Plaintiff brought a claim under the Americans with Disabilities Act (ADA), 42 U.S.C. 12101-12213, alleging that his employer engaged in prohibited discrimination by rescinding his offer of promotion on the basis of his perceived limitations. The employer moved for summary judgment, contending, in part, that plaintiff's claim was discharged in the company's Chapter 11 bankruptcy, which had concluded two months after rescission of plaintiff's offer. The district court held that plaintiff's ADA claim was discharged by virtue of his failure to submit a request for payment by the bar date for the majority of administrative expense claims. The court found that plaintiff's claim fit squarely within the definition of liabilities incurred in the ordinary course of business. Therefore, the court held that because plaintiff was not required to file a request for payment of an administrative expense at all, the judgment in favor of the employer was reversed and the case remanded for further proceedings.

Court: U.S. 10th Circuit Court of Appeals
Docket: 11-5017
 October 14, 2011
Judge: Murphy
Areas of Law: Labor & Employment Law, Public Benefits
Petitioner Theresa Freeman appealed the denial of her applications for social security disability insurance benefits and supplemental security income benefits. Petitioner applied for benefits in June 2007, alleging she was unable to work as the result of obesity and an on-the-job back injury that had occurred in February 2007. Her applications were denied at the administrative level, on reconsideration, and after a hearing before an administrative law judge (ALJ). The ALJ found that Petitioner's degenerative disk disease and obesity were severe impairments, but that none of her impairments, either alone or in combination, met or equaled one of the listings. Furthermore, the ALJ found that Petitioner had "the residual functional capacity to perform less than the full range of light work." After the Appeals Council denied her request for review, Petitioner filed her complaint in district court, and a magistrate judge affirmed the Commissioner's denial of benefits. Upon review, the Tenth Circuit concluded that Petitioner wanted the Court to "reweigh the evidence or substitute [the Court's] judgment for that of the Commissioner" which the Court declined to do. Accordingly the Court affirmed the Commissioner's decision to deny Petitioner's benefits.

Court: U.S. 10th Circuit Court of Appeals
Docket: 11-6056
 October 14, 2011
Judge: Gorsuch
Areas of Law: ERISA, Injury Law, Insurance Law, Labor & Employment Law
Plaintiff Steven Lucas filed suit against Liberty Life Assurance Company of Boston (Liberty Life), asserting that the company violated the Employee Retirement Income Security Act of 1974 (ERISA) when it denied his claim for long term disability benefits. Finding that the denial of benefits was not arbitrary and capricious, the district court entered judgment in favor of Liberty Life. Plaintiff appealed the district court's decision. Plaintiff was an employee of the Coca-Cola Company. Liberty Life both administered and insured Coca-Cola's long-term disability benefits plan. Under the plan, it has discretionary authority to determine eligibility for benefits. Plaintiff suffered a work-related injury requiring spinal surgery and, after a short period back on the job, stopped working. He filed a claim for long-term disability benefits in August 2005. In September 2007, Liberty Life terminated Plaintiff's benefits after determining that he was not eligible for continued benefits under the "any occupation" provision: while he might not be capable of performing his own occupation, he was capable of performing some occupation comparable to his former position. Plaintiff filed an administrative appeal with Liberty Life, but the company upheld the denial of benefits. Upon review, the Tenth Circuit concluded that Liberty Life's decision was supported by substantial evidence, and that Plaintiff failed to show that it was arbitrary and capricious. Accordingly, the Court affirmed the district court's decision.

Court: U.S. Federal Circuit Court of Appeals
Docket: 11-3103
 October 19, 2011
Judge: Reyna
Areas of Law: Government & Administrative Law, Labor & Employment Law
Plaintiff, employed by the federal government for almost 30 years, appealed from termination of her position with the VA. During her last months on the job she suffered depression and high blood pressure. The parties entered into a settlement in which plaintiff agreed to withdraw her appeal and forego all claims against the VA. An ALJ dismissed the appeal as settled. The March 2009 decision became final in April 2009. In November 2009, plaintiff filed a new appeal, seeking reinstatement. The appeal was docketed as a petition to enforce the agreement, but without allegation of noncompliance. The ALJ dismissed. The Board, unable to determine whether plaintiff's filing was an untimely appeal of the March decision or any basis for appeal, affirmed. The Federal Circuit affirmed. Plaintiff failed to show good cause for her untimely filing of the November 2009 appeal and the March 2009 decision implementing the agreement operated as a res judicata bar.

Court: Georgia Supreme Court
Docket: S11G0556
 October 17, 2011
Judge: Carley
Areas of Law: Injury Law, Labor & Employment Law
Plaintiff brought a slip and fall action against CSX under the Federal Employers' Liability Act (FELA), 45 U.S.C. 51 et seq., which provided a federal tort remedy for interstate railroad employees who were injured while working within the scope of their employment. At issue was whether 29 C.F.R. 1910.24(f) applied to an indoor office building and whether the trial court erred in allowing the jury to hear evidence of, and determine whether, plaintiff was out of service because he was within the broad scope of protection of the FELA. The court held that, because the requirement of section 1910.24(f) that the nosings be of nonslip finish was applicable to the stairs in CSX's office building, was raised by the evidence, and was not otherwise covered in the jury instructions, the trial court should have given plaintiff's request to charge the jury that it could consider a violation of that regulation as evidence of negligence on the part of CSX. The court also held that because the circumstances surrounding plaintiff's dispute with the supervisors a few hours before he went to CSX's administration building to attend the safety meeting were at least indirectly material to matters at issue in this case, including whether plaintiff was acting within the cope of his employment at the time of his fall, the trial court did not abuse its discretion in allowing CSX to cross-examine plaintiff on the issue and in admitting the testimony of supervisors for purposes of disproving certain facts to which plaintiff had testified.

Court: North Dakota Supreme Court
Docket: 20110127
 October 18, 2011
Judge: Maring
Areas of Law: Government & Administrative Law, Labor & Employment Law, Public Benefits
Petitioner Wanda Gottus appealed a district court judgment that affirmed a decision of Job Service North Dakota denying her unemployment benefits and concluding she was discharged for actions constituting misconduct. In January 2008, Petitioner began working as a cashier for Service Oil Inc. d/b/a Stamart. In addition to acting as a cashier, Petitioner's job duties included attending to the store's shelves, light cleaning, and other similar tasks. Petitioner's employment with Stamart ended in August 2010 when she was discharged for poor job performance. Petitioner subsequently filed for unemployment insurance benefits. Job Service initially approved Petitioner for unemployment benefits indicating she was not discharged for misconduct. Stamart appealed this decision, and a telephone hearing was held before an appeals referee. Testimony and evidence presented during the hearing revealed there were at least sixteen instances when Petitioner's job performance fell below the level expected of Stamart employees. The Job Service reviewed the record and affirmed the referee's decision. Petitioner argued on appeal her job performance was merely unsatisfactory but did not constitute misconduct. The district court rejected her argument and affirmed Job Service's decision. The Supreme Court concluded Job Service's findings of fact were supported by a preponderance of the evidence, and its conclusion that Petitioner's actions constituted disqualifying misconduct was supported by the findings.

Court: Ohio Supreme Court
Docket: 2011-0455
 October 19, 2011
Judge: Per Curiam
Areas of Law: Injury Law, Labor & Employment Law
Employee was involuntarily separated from his employment due to disability. Employee's treating physician later certified that Employee was able to return to work, and Employee was subsequently reinstated to the payroll by Employer. Employee appealed the reinstatement order to the extent that the order did not award him back pay or credit his vacation leave from the date his treating physician certified that he could return to work to the day before he was returned to the payroll. The State Personnel Board of Review dismissed Employee's administrative appeal for lack of jurisdiction. Employee then filed a complaint for a writ of mandamus to compel Employer to remit back pay or restore vacation-leave credit. The court of appeals dismissed Employee's complaint. The Supreme Court affirmed, holding that neither Ohio Rev. Code 124.32 nor Ohio Adm. Code 123:1-30-04 required that Employer remit back pay or credit the vacation leave Employee used between the date Employee's treating physician certified that he could return to work to the day before he was returned to the payroll.

Court: Pennsylvania Supreme Court
Docket: 60, of the International Assocation of Fire Fighters, AFL-CIO, Aplt - Nos. 35 - 38 MAP 2010
 October 19, 2011
Judge: Saylor
Areas of Law: Arbitration & Mediation, Constitutional Law, Government & Administrative Law, Labor & Employment Law
Consolidating several appeals, the Supreme Court addressed the effect of a municipality's financial distress and recovery planning on an arbitration award agreed to pursuant to the Policemen and Firemen Collective Bargaining Act (Act). For approximately twenty years, the City of Scranton has been designated a distressed municipality under the Municipalities Financial Recovery Act. Pursuant to the Recovery Act, the City has its Commonwealth-mandated financial advisors who assist in creating a financial recovery plan (essentially a budget). In the most recent collective bargaining agreements between the City of Scranton and its Police and Firefighter Unions expired at the close of 2002. Negotiations as to future terms and work conditions for union members resulted in impasses. Accordingly, pursuant to the Act, arbitrators were selected to establish appropriate terms and conditions. Throughout the arbitrations, the City maintained that the arbitrators lacked legal authority to award relief impinging on the City's financial recovery plan. The City attempted to resist paying the ensuing award that resulted from the arbitration. The Commonwealth Court found that it was required to vacate the awards, holding that they did not conform to the City's Recovery Plan and would result in increased financial and operational burdens on an already distressed municipality. The Unions appealed to the Supreme Court. The Court focused on the distinction between the terms "arbitration award" and "arbitration settlement": the City argued that it was not mandated to pay "awards" but "settlements." The Supreme Court found the term "settlement" ambiguous, and the plain meaning could include the "award" given by the arbitrators in this case. Accordingly, the Court reversed the Commonwealth Court's order that the award negatively impacted the City's Recovery Plan.

Court: Pennsylvania Supreme Court
Docket: 49 EAP 2010
 October 19, 2011
Judge: Orie Melvin
Areas of Law: Government & Administrative Law, Injury Law, Insurance Law, Labor & Employment Law
At issue before the Supreme Court was whether an opinion rendered by a medical expert was sufficient to rebut the presumption of disease causation under the Pennsylvania Workers' Compensation Act. Joseph Kriebel worked for the City of Philadelphia as a firefighter from 1974 to 2003. He died in 2004 from liver disease caused by hepatitis C. His widow Appellant Patricia Kriebel, filed a claim petition under the Act in 2005, alleging that her husband contracted hepatitis C in the course of his employment. Appellant sought to raise the presumption of occupational exposure. In support of her claim, Appellant presented the testimony of her husband's treating physician. The City rebutted the presumption of disease causation with testimony of its own medical expert. Upon review, the Supreme Court held that an expert's opinion does not constitute substantial competent evidence where it is based on a series of assumptions that lack the necessary factual predicate. Since the medical opinions in this case were based on unfounded suppositions, they were legally insufficient to overcome the presumption of disease causation. The Supreme Court reversed the Commonwealth Court that held that the City overcame the presumption with its' medical expert's testimony, and reinstated the order of the superior court which held in favor of Appellant.

Court: Tennessee Supreme Court
Docket: M2010-01975-SC-WCM-WC
 October 19, 2011
Judge: Anderson
Areas of Law: Injury Law, Insurance Law, Labor & Employment Law
In this workers' compensation case, Employee was operating a torque gun, which jerked and twisted her right hand while at work. Employee contended that her injury extended into her arm. Employer agreed the injury was compensable but argued that the injury was limited to Employee's index finger. The trial court found that Employee's injury was properly apportioned to her right arm, rather than to her hand or finger, and awarded seventy percent permanent partial disability (PPD) to the right arm. Employer appealed, arguing that the trial court erred by apportioning the injury to the arm and that the award of PPD benefits was excessive. The Supreme Court Special Workers' Compensation Appeals Panel affirmed, holding (1) the evidence did not preponderate against the trial court's decision to apportion Employee's injury to the arm; and (2) the evidence supported the trial court's award of disability benefits.

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at

A Reasonable Penalty Under The Circumstances at

The Disability Benefits E-book: at

Layoff, Preferred Lists at


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