human resources & employment law - LexisNexis

HUMAN RESOURCES & EMPLOYMENT LAW
CUMULATIVE CASE BRIEFS
Robert A. Martin, J.D.
ramelcc@yahoo.com Updated on January 22, 2015 Staying current on legal developments is essential - I regularly check on
human resources and employment law announcements and share them with
colleagues. . This cumulative collection is free, but I no longer provide opinions
because I have resigned my license to practice law. Thus, no legal
opinions are either expressly or impliedly given here - that's what
your legal counsel is for.
. New information is added on top of previous content and this
collection tends to grow large:
o This is a cumulative collection, which means past information remains
below the recently added content, and past versions can be deleted.
o Don't print it - search it electronically e.g., search for key words
with Ctrl+F, or other software (e.g., OneNote) search methods.
o Toward the end of each calendar year I begin warning that much older
information will be deleted from the end of the collection at the
start of the new calendar year - either save the previous version
under another filename, or contact me later for a copy. . Focus predominates on anti-discrimination laws, leave laws, National
Labor Relations Board decisions, etc. Though I live in Albuquerque,
New Mexico and the 10th Circuit, cases from many jurisdictions are
included in this collection. . Recommended additional resources to check out:
o Employment Law Information Network - excellent for articles,
discussions, notices, recent cases and other valuable information:
http://www.elinfonet.com/
o Society for Human Resource Management: http://www.shrm.org/
o M. Lee Smith: http://www.mleesmith.com/
o Business Law Resources: http://www.blr.com/?source-MSN&effort=648 . I try to be concise - bullet points, minimal legal jargon and
litigation procedural details (litigators can check those by reading
the full decision). . URL links usually are provided to
o a court's full decision for its reasoning, findings of fact, rulings,
or other details litigators might find important, and
o often to an informative or essential article about the case and
related issues. Note: Links marked as "enhanced lexis.com version"
(cases) or "annotated lexis.com version" (statutes) are available to
lexis.com subscribers. . New information is added on top of previous content and this
collection tends to grow large:
o Don't print it - search it electronically.
o Toward the end of each calendar year I begin warning that older
information will be deleted from the end of the collection at the
start of the new calendar year - either save the previous version
under another filename, or contact me later for a copy. . Laws can differ in various jurisdictions. Each case brief usually
contains a jurisdiction designation in bold font (starting 1/31/12).
Cases in your jurisdiction are almost always controlling law. However,
cases outside of your jurisdiction are still helpful because the
reasoning often provides illustrations of legal theories and practical
guidance for matters not yet decided in your jurisdiction - often
another jurisdiction will borrow that reasoning because the court
found it persuasive (and fortunately for us in the field, this leads
to considerable consistency among jurisdictions).
. A map of the various federal appellate circuits is below, and this is
the URL link http://www.uscourts.gov/court_locator.aspx for it and its
helpful resources you can click on.
UNITED STATES FEDERAL APPELLATE CIRCUIT COURT JURISDICTIONS [pic] CUMULATIVE CASE BRIEFS AND NOTES Title VII: litigation - failure of proof, appeals - preserving issue,
adverse employment action - inappropriate behavior, retaliation - proof,
McDonnell Douglas - pretext, summary judgment dismissal affirmed Jurisdiction: Tenth Circuit Davis v, James, No. 14-6063 (10th Cir., 1/15/15);
http://www.ca10.uscourts.gov/opinions/14/14-6063.pdf [enhanced lexis.com
version]. This case provides a good review of a couple of key issues. Though some of
the quotations have been edited for readability, the opinion contains all
of the text. Proof of indirect discrimination: . . . McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).
"[I]f the plaintiff can establish a prima facie case of discrimination
or retaliation, the burden shifts to the defendant to show a
legitimate non-discriminatory or non-retaliatory reason for the
adverse employment action." * * * If the defendant can meet this
burden, then the burden "shifts back to the plaintiff to demonstrate
that the defendant's proffered reason is pretext." Proof of retaliation [edited extensively for readability]: . . . To establish a prima facie case of retaliation, Davis had to
show that: (1) she engaged in a protected activity; (2) she suffered
an adverse employment action; and (3) there is a causal nexus between
the protected activity and the employer's adverse action. * * * Title
VII protects employees from retaliation for opposing, or making or
supporting a complaint about, unlawful employment practices.
* * *
Filing a complaint against an employer is protected by § 2000e-
3(a) only if the complaint is about an employment practice made
unlawful under Title VII. * * * "[A]n employer cannot engage in
unlawful retaliation if it does not know that the employee has opposed
or is opposing a violation of Title VII". Davis did not have to prove
that her employer actually engaged in a violation of Title VII, but
Davis must have had a "reasonable good-faith belief" that the behavior
she opposed - whether through a formal charge or an in formal
complaint - was discrimination prohibited by Title VII. * * * . . .
[B]ecause the plaintiff "failed to establish that her EEO complaint
alleged discrimination forbidden by Title VII . . . she could not have
had a reasonable good faith belief that she was reporting retaliation
or discrimination prohibited by Title VII [and] she did not establish
that she engaged in protected activity by filing an internal EEO
complaint ".
Since Davis argues only that her EEO complaint contained an
allegation that she was being retaliated against because she engaged
in whistleblowing about time card fraud, she could not have had a
reasonable good faith belief that she was opposing conduct prohibited
by Title VII when she filed her EEO complaint. Thus, Davis did not
meet her burden of showing that she engaged in a protected activity.
Accordingly, the district court properly granted summary judgment on
Davis's retaliation claim. Preserving issue for appeal [edited slightly for readability]: We will not normally "address issues that were not considered
and ruled upon by the district court." * * * In determining that no
reasonable jury could find that Davis suffered discrimination in
violation of Title VII, the district court considered only the six
discriminatory acts Davis identified in her discovery responses. And
Davis does not challenge the district court's exclusion of any other
discriminatory acts. Accordingly, Davis's argument that she was
unlawfully discriminated against because of what she found when she
was asked to investigate timecard fraud was not preserved for our
review. SEC: publicly-held company, required pending litigation disclosures,
adverse employment action, retaliation claim, remanded for trial Jurisdiction: Seventh Circuit Greengrass v. International Monetary Systems Ltd., No. 13-2901 (7th Cir.,
1/12/15) [enhanced lexis.com version]:
. http://media.ca7.uscourts.gov/cgi-
bin/rssExec.pl?Submit=Display&Path=Y2015/D01-12/C:13-
2901:J:Williams:aut:T:fnOp:N:1483508:S:0.
. Constangy Brooks & Smith law firm You've gotta be kidding - THIS is
retaliation? article at http://www.employmentandlaborinsider.com/wp-
content/uploads/sites/328/2015/01/1.16.15.Blog_.Greengrass-v-IMS-
7thCir.pdf. The dilemma for the employer was what was required to be included in an SEC
disclosure statement. Practitioners in this area of the law need to study
the law firm article's detailed account of the factual background because
the opinion doesn't provide sufficient information to be helpful and
instructive. Essentially, the employee sued for retaliation when a later
amended disclosure statement listed her pending EEOC charge. Now the
employer faces a trial on the retaliation allegation. [Comment: Damned if
you do, damned if you don't. Tap dancing in a minefield?] Appellate court summary: Celia Greengrass sued her former employer, International
Monetary Systems Ltd. ("IMS"), alleging that IMS retaliated against
her for filing a complaint with the U.S. Equal Employment Opportunity
Commission ("EEOC") against the company by naming her in its annual
SEC filings and casting her complaint as "meritless." The district
court granted summary judgment in favor of IMS on the ground that
Greengrass lacked evidence showing a causal link between her EEOC
filing and the alleged retaliatory act. We reverse. Greengrass made
out a prima facie case of retaliation by demonstrating that she
engaged in a statutorily protected activity when she filed her EEOC
charge, that IMS engaged in