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♦ Mar 31, .. 8th Cir.: Brown v. Conagra Brands, Inc. .. Conagra Brands, Inc. hired Ms. Brown, a biracial woman, in October 1997. She became disabled in 2015 after suffering a workplace injury and filed a workers’ compensation claim in 2017. As an accommodation, Conagra temporarily transferred Brown from her position as a forklift operator to packaging machine operator, moving Mr. King from packaging machine operator to forklift operator. Conagra paid Brown the higher forklift operator rate until July 2020, when her work restrictions became permanent, and then cut her pay to the packaging machine operator rate. After King died in September 2020, Conagra posted the forklift operator and the packaging machine operator jobs. Brown applied for the first-shift packaging machine operator position but was not selected, despite having more seniority than the successful candidate. She was instead assigned to work the second and third shifts for less pay. She filed a charge of discrimination against Conagra with the NEOC and the EEOC, alleging that due to her “disability, record of disability, race, and in retaliation for requesting an accommodation and filing a charge of discrimination, [she] was demoted and assigned to a less favorable shift.” Brown was fired on December 6, 2021, and then sued in state court. .. CONTINUED .. COURT DECISION: (.html)
♦ Mar 31, .. 6th Cir.: Woodie v. Motorola Solutions, Inc. .. Mr. Woodie has nocturnal epilepsy. Mr. Woodie began working for Motorola Solutions, Inc., as a Federal Systems Technologist in 2013. Woodie’s work was primarily done outside of the office at customer sites. Until March 1, 2020, systems technologists traveled about 75% of the time and sometimes had to work weekends. But beginning in March 2020, Motorola required technologists to travel 80% of the time. Woodie was unhappy with the additional travel and asked his supervisors on several occasions to return to the prior arrangement. Woodie initially asked on behalf of all the systems technologists. He later told a supervisor that the new travel schedule was “not sustainable” and would lead to the loss of technologists. Around July 2019, Woodie informed his immediate supervisor, Wes Pellum, that he had nocturnal epilepsy. Pellum directed Woodie to the company’s Occupational Health Resources department (OHR) in the event he needed any accommodations because of the epilepsy. Pellum also offered to contact OHR for Woodie. Woodie declined an accommodation; he stated that he didn’t “expect to need any special accommodations but it was good to know there is someone to reach out to if it were needed.” In June or July 2020, Woodie told Motorola that he needed a schedule change “because of his health.” Samantha Heagney, a Human Resources Business Partner, told Woodie that he could “always apply for a reasonable accommodation if needed” and gave him the company’s Reasonable Accommodation Policy, which contained instructions on how to file a request. Woodie declined and said, “I understand that but at the same time I don’t really want to be treated differently. I just wanted to be treated fairly.” Beginning in November 2020, Woodie increased his demands for a schedule change. He asked Mauro Morin, his group leader, for a reduced travel schedule on multiple occasions. Morin told Woodie to speak with Pellum and another supervisor, Joe Caputo, since Morin didn’t have control over the schedule. Woodie originally explained that he disliked the schedule because “he was missing weekends at home,” but he later told Morin that his epilepsy was affecting his sleeping. As for the latter point, Morin told Woodie that he should direct any accommodation requests to OHR. During this time, Woodie also asked Caputo twice for a reduced travel schedule. Caputo told Woodie that he had to work as directed but if he needed an accommodation, he should speak to OHR. Woodie never requested an accommodation through OHR. Throughout his time at Motorola, Woodie’s supervisors had to counsel him on performance and behavioral issues. Woodie apparently didn’t “understand his place” in the company, trying to do work on projects that were best left for the sales department or a project manager, not a systems technologist. Morin also had to speak with Woodie about his interactions with customers and coworkers. Morin first did so in July 2019, explaining that he had received a request to remove Woodie from a project because of conflicts with both staff and customers. After no improvement in Woodie’s behavior, Motorola terminated his employment on May 22, 2021. Motorola classified the termination as without cause, which left open the possibility that Woodie could be rehired. Woodie received an employment offer from another company the day after his termination; he began work elsewhere one month later. Woodie sued Motorola, bringing claims under the American with Disabilities Act (ADA) ,failure to provide reasonable accommodations, disability discrimination, and retaliation. .. CONTINUED .. COURT DECISION: (.html)
♦ Mar 28, .. 2nd Cir.: Valerio v. Metropolitan Transit Authority (NYC) .. In April 2021, the MTA offered Ms. Valerio a position as a Police Officer with the Metropolitan Transportation Authority Police Department (“MTAPD”). The MTAPD uses the New York Police Department Academy (the “Academy”) to train its recruits. Each recruit enters a six-month training at the Academy. During Ms. Valerio’s training period, MTAPD Police Officer Julie Cutrone acted as the NYPD Liaison at the Academy. In this role, Cutrone was responsible for supervising, running, and administering the recruits’ police training classes. In July 2021, Detective Sergeant John Echavarria issued Ms. Valerio a Letter of Instruction for what he perceived to be an insubordinate attitude. At the same time, Echavarria provided a memo to MTAPD Captain Matthew Taffner explaining his reasons for issuing the Letter of Instruction and informing Taffner that he “advised PO Cutrone to have PPO Valerio removed as assistant company Sergeant.” Valerio believes that Cutrone removed her as company sergeant. In October 2021, Cutrone gave Valerio permission to leave to see a dentist about her fractured tooth. The parties dispute what happened next, but all agree that before leaving the Academy, Valerio did not secure equipment then in her possession, including her MTAPD-issued firearm box, two high capacity law enforcement issue firearm magazines, and 34 rounds or more of ammunition; that she did not physically return to retrieve these items; and that Cutrone ended up taking possession of the equipment and securing it. Ms. Valerio testified in her deposition that she put the equipment in her recruit bag before she left and someone else removed it from the bag when she went to the bathroom before she left for the dentist. However, in the memo she wrote at Cutrone’s instruction three days after the incident, Valerio described what happened with her equipment as follows: On Friday October 22nd, 2021 I left at approximately 1205 hours due to a dental emergency. Prior to me leaving . . . I put my box which had 34 rounds and 2 empty high capacity magazines in them on top of my recruit bag. At some point . . . PO Cutrone instructed for the boxes to be stacked on the side of the room so they wouldn’t be in the way . . . . At that point my box was no longer in my possession and moved to the side of the room along with everyone else’s gun box. At approximately 1205 hours I asked PO Cutrone if I could leave early due to a dental emergency. . . . At that point I went to recruit ops to sign out. As I was rushing to my car I was making phone calls to various Emergency Dentists to schedule a same day appointment. As soon as I exited the building and went to my vehicle, I realized that my gun box was not in my recruit bag, at which point I sent an immediate notification to the group chat asking for someone to secure the gun box for me. I was then told that PO Cutrone requested the box from my coworkers so she could safeguard it. At that point I assumed that my gun box was secured and safeguarded and that the notification was no longer needed. In December 2021, the MTAPD chief issued Valerio a Notice of Intent to Discipline (“NID”). .. CONTINUED .. COURT DECISION: (.html)
♦ Mar 27, .. 6th Cir.: Jones v. Fluor Facility & Plant Servs .. Plaintiff Mr. Jones is an African American man. Defendant Fluor Facility and Plant Services hired Jones as a maintenance worker in May 2020. Fluor is an industrial maintenance contractor. As part of Fluor’s maintenance team, Jones performed labor and industrial maintenance for Fluor’s customer, Logan Aluminum, an aluminum manufacturer located in Logan County, Kentucky. Fluor maintained an onsite office at Logan Aluminum, where Jones and other employees worked. Racial Harassment : Throughout his employment with Fluor, Jones’ white coworkers allegedly racially harassed and ostracized him. Jones asserts that his coworkers’ conduct amounted to racial harassment. His allegations focus on the events that occurred while Jones worked on the night shift, as he did for the bulk of his time at Fluor. We note, however, that Jones was also allegedly racially harassed by a white coworker when he worked the day shift, as he did “early on” in his employment on the maintenance team. Jones was transferred to the night shift following this incident, though the reason for his transfer is unclear. Jones started on the night shift in September or October 2020. About five or six people worked the night shift at that time, and throughout Jones’ time at Fluor. Jones’ immediate supervisor was Mark Thornberry, the night shift supervisor, and Thornberry’s supervisor was Casey Craig, who had hired Jones. Jones was the only African American on the night shift during his tenure at Fluor. Indeed, for most of his time at the company, he was the only African American working at Fluor’s operation at Logan Aluminum. From the time Jones started on the night shift, his white coworkers made comments about the “color of his skin” so frequently that Thornberry felt compelled to start taking notes on what was said in November 2020. Several instances of verbal racial harassment occurred in the first nine days of November 2020. In one incident, a white employee, Alex Walpole, referred to Jones as “nigger” in front of two other coworkers. That same week, another white employee, Tim Bowersock, repeatedly goaded Jones to make racist jokes about white people “in front of the entire staff.” Jones and Thornberry documented that this goading took place on November 2 and 3, 2020. They also testified that Bowersock’s harassing behavior started before November. Bowersock previously attempted to get Jones to tell racist jokes, and Bowersock previously made jokes about Black people. Bowersock expressed to Thornberry that he “thought it should be okay to tell racial jokes.” By November 9, 2020, Thornberry “had enough” of the night crew racially harassing Jones, and called a meeting during which he asked the crew to stop their harassment. Everyone on the crew at the time attended the meeting, including Jones. During the meeting, “it was brought up that everyone knew that [Jones] was called the N word.” In response, one white employee, Joe Fleming, said that the crew “should be able” to call Jones the slur because “this is construction,” and the slur was “a natural term that we use around here.” Jones remained at the company until his suspension in March 2022 and eventual termination, which was after, but unrelated to, his filing of the complaint in this litigation. Plaintiff Jason Jones appeals the district court’s grant of summary judgment to Defendant, Fluor Facility & Plant Services, on his claims of a hostile work environment based on racial discrimination and retaliation. For the reasons set forth below, we REVERSE the district court’s grant of summary judgment to Fluor on all of Jones’ claims and REMAND this matter to the district court for further proceedings consistent with this opinion. .. CONTINUED .. COURT DECISION: (.html)
♦ Mar 27, .. 6th Cir.: Bashaw v. Majestic Care of Whitehall .. Majestic Care operates a skilled nursing home and residential facility in Ohio. Ms. Bashaw served as the Director of Social Services there from November 2021 until she was terminated in March 2022. The Director of Social Services is not a medical position. Instead, Ms. Bashaw’s job was to “direct and manage[] the day-to-day operations of the Social Service department,” which included enhancing the psychosocial experiences of residents and their families. Bashaw’s role also included attending daily morning and end-of-day director meetings. The morning meeting was considered the beginning of the work day. Ms. Bashaw worked at Majestic Care for just under four months. During a six-week span, between mid-January and early March 2022, she was tardy or late for the morning meetings eleven times and absent from work without prior authorization eight and a half days. According to Edward Beatrice, Majestic Care’s Executive Director and Bashaw’s manager, this affected Bashaw’s performance, and she fell behind in her work. During her four months at Majestic Care, Bashaw grew concerned about resident care, which she began to document. Bashaw had specific concerns about one nurse whom Bashaw heard twice cursing at patients and who Bashaw believed was giving inadequate medical treatment to a leg wound suffered by Resident A. Bashaw reported her concerns about Resident A’s care to Beatrice and the Director of Nursing, Amia Ford. These two allegedly responded by telling Bashaw not to worry about the nursing department since that was outside her purview. Soon after, Resident A’s leg was amputated because of a severe infection. Bashaw raised additional concerns about patient care in mid-to-late February, including complaints about patients suffering frequent urinary tract infections, nurses’ failure to provide bathing assistance, lack of staff training to handle behavioral issues, and an overall lack of adequate care. Ms. Bashaw’s concerns went beyond patient care, however. She viewed Beatrice as racially insensitive. As examples, Bashaw offered that Beatrice referred to staff as “ghetto” and “bougie.” He commented that Muslim staff members “don’t celebrate Easter.” And he noted his surprise that he had liked a book by actor Will Smith. Bashaw also believed that Beatrice had engaged in sexually harassing conduct when he allegedly entered Admission Director Jailah Hopson’s office while her door was closed because she was expressing breast milk for her newborn baby. Bashaw then sued, claiming that she was fired because she had expressed concern about resident care and Beatrice’s behavior. .. CONTINUED .. COURT DECISION: (.html)
♦ Mar 26, .. 5th Cir.: Turner v. Oliver .. Philip Turner was principal of Yazoo County High School. Akillie Malone Oliver is the District Attorney for the district that encompasses Yazoo County, Mississippi. Important to Turner’s claims of malice, Oliver’s son attended Yazoo County High School during Turner’s tenure as principal. In early 2019, Turner suspended Oliver’s son, and Oliver went to the school to object to the suspension. Because this is an appeal from an order dismissing Turner’s complaint, we “accept as true all well-pleaded facts and construe the complaint in the light most favorable to the plaintiff.” Our recitation of facts employs that acceptance. According to Turner’s complaint, “Oliver became so loud and disrespectful that [Turner] feared violence” and had her escorted off school property. Turner claims that later events were the result of Oliver’s desire to retaliate for the suspension of her son. In August 2019, another Yazoo County High School student accused the school resource officer of choking him during a disciplinary incident. Upon learning of this accusation, Oliver and an investigator from the District Attorney’s Office went to the school, where Oliver interviewed witnesses and took pictures. Turner was not present during the alleged choking incident, but he removed the student who was the alleged victim from the gymnasium for disruptive behavior, immediately notified the student’s parents and the school superintendent of the possible injuries, and called a youth court judge. Oliver referred to Turner as a “possible defendant” during the later probable cause hearing related to charges against the school resource officer. Turner was to testify at the hearing, but his complaint states that being told he might be a defendant caused him to exercise his right against self-incrimination and refuse to testify. In January 2020, Oliver convened a grand jury and obtained an indictment against Turner, charging him as an accessory after the fact to felony child abuse. The sole factual basis for the charge was that Turner exercised his right not to testify. .. CONTINUED .. COURT DECISION: (.html)
♦ Mar 26, .. CCP Morris v. UCBR .. On October 31, 2022, Ms. Morris filed a claim for UC benefits. She had worked for Employer as a Certified Nursing Aide (CNA) for $18.50 per hour. She reported that her beginning and ending (only) day of work for Employer was August 2, 2022. She asserted that she was “terminated-fired-suspended” from work for “unknown reasons.” In another part of the application, when asked about the conditions of her discharge from employment, Morris described what was later determined (at the first hearing in this matter) to be her separation from a prior employer, Pediatric Specialty Care (PSC), where she worked from August 2020 through July 27, 2022, shortly before the one day she worked for Employer. As to PSC, Morris asserted in her application that she worked there full time and left that position due to medical leave requested by her doctor. Consistent with Morris’s testimony, the FMLA documentation, which was completed in September 2022 after her day working for Employer, indicated that she was being treated for depression and anxiety after being carjacked in early December 2021 and asked for FMLA time off between September 8, 2022, and November 30, 2022. Certified Nursing Aide (CNA), Ms. Morris (Morris) petitions for review from the March 21, 2024, order of the Unemployment Compensation Board of Review (Board). .. CONTINUED .. COURT DECISION: (.html)
♦
Mar 26,
.. CAK:
Highlands Regional Med Ctr v. Shepherd
..
Ms. Shepherd, a social worker, worked as a therapist in the behavioral
health unit at what is now Highlands from October 2016 until October 2019 as a
contractor and from November 2019 until April 2020 as an employee of
Highlands.
Ms. Shepherd’s immediate supervisor was Bruce Fletcher, Head Nurse
Manager, and his supervisor was Susan Ellis, Community Chief Nursing Officer.
On the behavioral health unit, Shepherd worked with patients with mental health
needs. Her job duties included performing safety assessments to determine if the
patients were a danger to themselves or others and, in conjunction with a multi-
disciplinary treatment team, to make discharge recommendations that were heavily
relied on by the psychiatrist, who made the final determinations.
During the term of her work at Highlands, both as a contractor and an
employee, Fletcher repeatedly told Shepherd that Ellis had instructed that patients
who were unable to pay for treatment, generally because they had exceeded their
insurance coverage, needed to be discharged. This typically happened after
Fletcher had attended his morning meeting with management. Depending on the
patient, Shepherd often responded to Fletcher that she was not comfortable with his
instructions because the patients were not safe for release, and, in those
circumstances, she informed the treatment team that she did not recommend
discharge.
On September 23, 2020, Shepherd filed the underlying suit alleging
that she was pressured by Highlands administration, through her supervisor, to
recommend discharge for financial motives on patients who were not safe for
release, that she refused to comply, and that she reported this to her supervisor.
The complaint, asserts that Highlands retaliated against her by placing her in a
hostile work environment and taking hostile actions for the purpose of forcing her
to resign, constituting constructive discharge, and that their actions violated KRS
216B.165. Shepherd sought compensatory damages for emotional pain and
distress as well as punitive damages. Highlands answered the complaint, denying
all claims of wrongdoing and asserting that Shepherd was not entitled to relief.
.. CONTINUED
..
COURT DECISION:
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♦ Mar 24, .. CCA: People v. Hernandez .. On February 17, 2007, Carlos Gomez was working as a security guard at a dance for teenagers at a church in Santa Maria. Gomez noticed Hernandez and other young men standing near the church entrance. When Gomez asked the men to move away, Hernandez responded, “viva la raza.” He wore a football jersey with the number “13” on the front and “Southside” on the back. Gomez soon heard a noise that sounded like firecrackers. Hernandez ran toward the front of the church and shot at people standing in line for the dance. He shouted a gang slogan and walked away. Hernandez entered a vehicle that left the church parking lot. Gomez copied the license plate number of the vehicle. Hernandez wounded two people in the shooting. One sustained a gunshot wound to his left arm, the other a gunshot wound through his left arm and into his chest. Several hours later, a Santa Maria police officer attempted to effect a traffic stop on Hernandez. Hernandez drove away, then stopped his vehicle, and fled on foot. The officer found Hernandez lying beneath a parked vehicle. .. CONTINUED .. COURT DECISION: (.html)
♦
Mar 24,
.. 5th Cir.:
Allen v. FedEx
..
Plaintiff-Appellant Mr. Allen was employed by Defendant-
Appellee FedEx Ground Package System, Inc. as a Pickup and Delivery
Manager (PDM) in the South Austin Station. Allen transferred to this
position in 2020 but had worked for FedEx in other locations and roles since
2016. As a PDM, Allen was hired by, and reported directly to, Steven
Shelton, the Senior Manager of the South Austin Station. Allen split his
responsibilities with two other PDMs who reported to Shelton, Alex Spivey
and Crystal Elorduy.
On Sunday, May 16, 2021, Andy Munoz, another employee at the
South Austin Station, walked into Allen’s office, reached into his backpack,
started pulling out a box, and said, “I just picked up this gun.” Allen
responded by telling Munoz “you cannot have that gun in the building”
and “need to take it out of here right away.” Allen assumed Munoz then took
the gun outside, because he saw Munoz walking out. This occurred about one
month after a mass shooting at another FedEx facility.
Relevant here, FedEx has a weapons policy that “strictly prohibits the
possession of firearms and other weapons on its premises.”
If “an employee
with a firearm or weapon is discovered,” the policy requires that
management take certain enumerated actions, such as, “ask the individual
to place the weapon into a divesting tray and remain in the screening area”;
“take a picture of the weapon”; and “notify FedEx Express Security or
FedEx Ground station/hub management if FedEx Express Security is not
available.”
“Any employee that has potentially violated the weapons policy
must immediately be placed on paid suspension.” FedEx Security “must
complete an investigation of the incident and provide a written report.”
“All
weapon violations are to result in termination of employment.”
At the time Munoz showed Allen the gun, the two were alone in the
building, but Shelton explained that both he and FedEx Security are
accessible by cell phone, and those numbers are readily available and posted
on an emergency contact list.
Allen did not immediately report the incident
to Shelton or security.
Instead, Allen reported the incident to Hendrick the
next time Hendrick was working, a few days later.
According to Allen,
Hendrick responded that he would report it to Shelton and security. Shelton
eventually learned of the incident and informed security on May 20.
A FedEx Security Specialist then interviewed Munoz, Allen, and
Hendrick and prepared a report.
Shelton notified Allen that his employment with FedEx was
terminated on June 1, 2021.
Allen also asserts that Shelton occasionally kept a gun in his car in the
FedEx parking lot. Shelton was investigated for carrying a gun onto company
property after Allen was terminated, and believes Allen reported him.
Shelton told security he did not carry a gun on FedEx premises. Nothing
further came of the investigation.
Allen filed suit against FedEx
.. CONTINUED
..
COURT DECISION:
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♦ Mar 24, .. NYSC NYC: Lilly v. State of New York .. Plaintiff, Mr. Lilly, has worked in New York State and City politics since 19961. In 2022, defendant, Edward Gibbs, was elected to New York State Assembly as the Representative for its 68th Assembly District, comprising primarily the neighborhood of East Harlem. Gibbs hired plaintiff as his Senior Advisor on August Because this motion to dismiss has been made pre-answer, the procedural posture requires that the facts alleged in the complaint be accepted as true. Plaintiff suffers from Type-II diabetes and in summer of 2023 he discovered a hole in his left foot. Plaintiff’s condition worsened and he was admitted into the hospital on July 20, 2023 where he was informed that the condition may require amputation. Plaintiff alleges that he informed Gibbs and his staff of his condition and that he would be out of work for the time being. Gibbs visited plaintiff in the hospital on July 24, 2023 and during that visit plaintiff informed Gibbs that he was scheduled to have his toes amputated on July 27, 2023 and he would have to remain in the hospital to determine if further amputation was needed. Plaintiff alleges that two days after visiting plaintiff in the hospital, on July 26, 2023, Gibbs called plaintiff and terminated his employment. Plaintiff further alleges that Gibbs did not give him an explanation for his termination. .. CONTINUED .. COURT DECISION: (.html)
♦
Mar 21,
.. Supreme Court of the United States:
Glossip v. Oklahoma
..
Barry Van Treese owned a Best Budget Inn in Tulsa and
in Oklahoma City. Richard Glossip managed the Oklahoma
City hotel and lived there with his girlfriend.
In the summer of 1996, Justin Sneed and his stepbrother approached
Glossip and asked him about working for a room.
Glossip agreed to let them stay in return for help with
maintenance and housekeeping. Sneed, however, had a
history of violence, angry outbursts, and substance abuse
that included marijuana, methamphetamine, cocaine, and
acid. When, on January 6, 1997, Van
Treese visited the inn to collect cash deposits there, Sneed
beat him to death with a baseball bat.
After killing Van Treese, Sneed evaded law enforcement
for several days. Police did promptly interview Glossip,
who told them that Sneed had knocked on his door that
night with a bump on his head “like somebody punched
him.”
Glossip added that
Sneed had told him he slipped in the shower. Glossip
disclaimed any knowledge of Van Treese’s murder, but admitted that he helped Sneed replace (from the outside) the
broken window of the room where Van Treese’s body was
later found. The next day, officers arrested Glossip in front
of an attorney’s office with approximately $1,700 in cash on
him.
Glossip then admitted Sneed had
told him “that he killed Barry.”
When confronted with his prior inconsistent statements about the murder and Van Treese’s
whereabouts, Glossip said that he had been scared to tell
the truth because he feared his failure to notify the police
immediately meant he was “already involved in it.”
The State thereafter charged Sneed with capital murder
and Glossip as an accessory after the fact based on his in-
accurate statements to the police.
Eventually, police located and interviewed Sneed, who had $1,680 in bloody
cash on him. The officers told Sneed that before he “ma[de] up
[his] mind on anything” they wanted him “to hear some of
the things” they “[had] to say,” including that they did not
think Sneed had acted alone and that he should not “take
the whole thing” himself. “Everybody”
was making Sneed “the scapegoat in this,” they told him—
especially Glossip, who was “putting it on him the worst.”
Sneed initially responded to the officers’ prompts by at-
tempting to implicate his brother, ibid., but eventually said
that Glossip had wanted to steal Van Treese’s money and
that Van Treese’s death had been the result of a robbery
gone wrong.
Sneed described breaking into
Van Treese’s room and beating him with a baseball bat un-
til he “figured he was knocked out.”
According
to Sneed, he then took Van Treese’s car keys, stole an enve-
lope with approximately $4,000 in cash from his car, and
split the money with Glossip.
When officers pressed him on the state of Van Treese’s body, Sneed
asserted that, “actually,” Glossip had asked him to kill
Van Treese so that he “could run the motel without him being the boss.”
.. CONTINUED
..
COURT DECISION:
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♦
Mar 20,
.. 5th Cir.:
Thornton v. Univ of TX SW Medical
..
In June 2015, UT Southwestern hired Thornton, an African
American, to work as a research associate. For over a year, Thornton filed
several complaints with the university alleging that his manager, Norma
Anderson, discriminated against him on the basis of his race. Thornton
alleges that Anderson’s discriminatory behavior included: (1) hiding
Thornton’s lab coat; (2) failing to order him supplies; (3) refusing to give him
work assignments; (4) drawing Thornton as a black stick-figure with the
caption “Why sad? No one loves him. Y u no hpy?”; (5) making comments
about how great Adolf Hitler was as a leader; and (6) defaming Thornton to
his colleagues and outside vendors. Thornton reported Anderson’s conduct
to UT Southwestern’s Director of the Center for Human Nutrition, Dr. Jay
Horton. Thornton later reported Anderson’s conduct to other departments
and individuals at the university. Despite these complaints, Thornton alleges
that UT Southwestern did not investigate his allegations of discrimination.
Thornton contends that Anderson’s actions created a hostile work
environment that negatively impacted his health. As a result, Thornton filed
for medical leave to seek mental health treatment for anxiety and depression.
UT Southwestern approved Thornton for medical leave from August 15,
2017, to October 30, 2017. In approving his request, the university informed
Thornton that he was “required to present a fitness to return to work notice
to be restored to employment.” After his leave term expired, Thornton
informed UT Southwestern that “he had not been released from his doctor
to return to work, but he would return as soon as he received his medical
clearance” and that he would require accommodations when he returned.
Afterwards, on November 9, 2017, Thornton was notified that Horton
intended to request his termination for failing to return to work. The next
day, Thornton notified Horton that he was available to return to work. Three
days after that, Thornton made a formal request for accommodations, which
the university swiftly denied. The next day, UT Southwestern terminated
Thornton as a result of his “unavailability to work.”
.. CONTINUED
..
COURT DECISION:
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♦
Mar 20,
.. 9th Cir.:
Lui v. DeJoy
..
Plaintiff-Appellant Dawn Lui, a longtime employee of
the United States Postal Service (“USPS”), brought suit
under Title VII of the Civil Rights Act alleging disparate
treatment, a hostile work environment, and unlawful
retaliation.
Lui is a woman of Chinese ethnicity in her late fifties.
She has worked for USPS since 1992 and has been a
Postmaster since 2004. In 2014, she was appointed as
Postmaster of the Post Office in Shelton, Washington.
According to the sworn declarations of Lui and her
supervisor Charles Roberts, employees in the Shelton Post
Office began targeting Lui with a series of false complaints
and grievances after her appointment as Shelton Postmaster.
Roberts and Lui believe that she was targeted because of her
race, sex, and national origin. They state in their
declarations that white male managers at the Shelton Post
Office were not similarly targeted. For example, Lui stated
that workers at the Post Office referred to her as “Asian
bitch” and “witch.” In a sworn declaration, a Shelton Post
Office employee stated that he heard “more than once . . . the
complaint/rumor that Dawn can’t read or speak English and
doesn’t understand it.” Lui stated in her declaration that
during the investigation of one of the submitted grievances,
she was “subjected to a humiliating interview” in which she
was asked if she “had some personal or intimate relationship
with . . . Roberts,” which Lui attributed to the investigator’s
knowledge that Roberts was married to an Asian woman.
Roberts stated in his declaration that he raised concerns
about Lui’s treatment with Human Resources Manager
Alexis Delgado, who was responsible for investigating the
complaints filed against Lui. Roberts told Delgado that he
believed Union Representative Renee Pitts, along with other
employees, were targeting Lui based on her race and gender.
Roberts stated that rather than investigating his concerns
about Pitts, Delgado “worked unusually close[ly] with . . .
Pitts to pursue discipline against . . . Lui,” even inviting Pitts
to a disciplinary meeting regarding Lui that did not involve
union matters. Roberts stated that on numerous occasions,
Delgado and Labor Relations Manager Lacey O’Connell
asked Roberts “whether . . . Lui and [he] were married,
related by marriage, or engaged in a sexual relationship.”
.. CONTINUED
..
COURT DECISION:
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♦ Mar 18, .. 6th Cir.: Johnson v. Univ. Hosps. Health Sys .. Mr. Johnson was employed as the chief executive officer for VisuWell, a telehealth company. On April 24, 2021, Mr. Johnson sat down for dinner at a hotel restaurant. Shortly after, a group of teenagers began taking prom pictures nearby. The group apparently became “rowdy” and “loud,” prompting Johnson to ask a chaperone to settle them down. One of the teenage boys, who was wearing a red prom dress, confronted Johnson after the two made eye contact. Shortly thereafter, the teen’s boyfriend started filming the rest of their interaction. The video captures the boyfriend trying to goad Johnson into reacting negatively to the teen’s red dress and Johnson telling the teen that he “looks like an idiot.” After Johnson and the teens parted ways, Johnson left the hotel to eat dinner somewhere else. The boyfriend posted the video on the internet that evening, and it found a broad audience. By the next morning, April 25, Johnson’s wife and daughter had watched the video online while vacationing several states away. Actress Kathy Griffin saw it, and shared it with two million Twitter followers in a post that identified Johnson as VisuWell’s CEO. The video separately caught the attention of VisuWell after someone messaged VisuWell’s president and chief operating officer on LinkedIn the day after the encounter. The wide distribution of the video and its contents stoked concern among VisuWell’s board of directors. One director found Johnson’s behavior “offensive and not becoming of someone in Johnson’s position.” Others were “disappointed” and concerned “that this would reflect poorly on the company.” The company’s chairman called Johnson on April 25 and expressed his unease about the video but assured him that his job was safe. The next morning, the directors discovered that Johnson had spoken to the press, despite their order not to, and placed him on administrative leave. Meanwhile, the directors continued to assess the public relations issues caused by the video. .. CONTINUED .. COURT DECISION: (.html)
♦ Mar 18, .. 3rd Cir.: Palmer v. Britton Industries .. Mr. Palmer was 63 when he was hired by Britton Industries, Inc. In early 2014, Palmer was 63 years old and had extensive experience selling heavy equipment to municipalities. In February, Britton Industries hired him as the Municipal Account Manager, to sell its mulch and other landscaping products to cities and counties in New Jersey and Pennsylvania. Palmer claimed that he and the CEO, James Britton, talked when he was hired and reached a mutual understanding that it would take Palmer at least a year to build his sales to the point of profitability. According to Palmer, they agreed he would be paid a fixed salary for his first year, while he built up his accounts. Palmer claimed that neither Britton nor the General Manager, James Mangarella, gave him a sales quota. Britton Industries hired three more sales representatives in the following weeks: Mark DeAngelo, age 58, Bennett Levitt, age 66, and Mike Perry, age 55. Palmer began working for Britton Industries on February 12, 2014. The parties agreed that Palmer’s sales figures were low. Britton Industries presented summary judgment evidence that Palmer sold only $1,186.01 worth of its products to new customers during his two months with the company. Palmer also made some sales to existing Britton Industries customers, but the record does not reflect their value. Palmer contended that this performance was in line with the expectations that he and James Britton had discussed and was adequate during the year-long ramp-up period. He denied that he had any performance problem. Britton Industries pointed to summary judgment evidence that within a few weeks after Palmer began working, CEO James Britton and General Manager James Mangarella discussed with each other their disappointment with Palmer’s sales performance. On April 9, 2014 — about two months after Palmer started — Mangarella met with Palmer and expressed dissatisfaction with his sales. Mangarella also noted that two other recently hired salesmen, Levitt, age 66, and Perry, age 55, were outselling Palmer significantly. Six days later, Mangarella fired Palmer. Palmer testified that he believed he was fired for two reasons: his age and “a total lack of understanding on Mr. Mangarella’s part of the business that they hired him to do.” .. CONTINUED .. COURT DECISION: (.html)
♦
Mar 10,
.. DcDc:
Wilcox v. Trump
..
Scholars have long debated the degree to which the Framers intended to consolidate
executive power in the President. The “unitary executive theory”—the theory, in its purest form,
that, under our tri-partite constitutional framework, executive power lodges in a single
individual, the President, who may thus exercise complete control over all executive branch
subordinates without interference by Congress—has been lauded by some as the hallmark of an
energetic, politically accountable government, while rebuked by others as “anti-American,” a
“myth,” and “invented history.” Both sides of the debate raise valid concerns, but this is no
mere academic exercise.
The outcome of this debate has profound consequences for how we
Americans are governed. On the one hand, democratic principles militate against a “headless
fourth branch” made up of politically unaccountable, independent government entities that
might become agents of corrupt factions or private interest groups instead of the voting public.
Additionally, at least theoretically, empowering a President with absolute control over how the
Executive branch operates, including the power to “clean house” of federal employees, would
promote efficient implementation of presidential policies and campaign promises that are
responsive to the national electorate. On the other hand, the advantages of impartial, expert-
driven decision-making and congressional checks on executive authority favor some agency
independence from political changes in presidential administrations, with the concomitant
benefits of stability, reliability, and moderation in government actions. No matter where these
pros and cons may lead, the crucial question here is, what does the U.S. Constitution allow?
To start, the Framers made clear that no one in our system of government was meant to
be king—the President included—and not just in name only. See U.S. CONST. art. I, § 9, cl. 8
(“No Title of Nobility shall be granted by the United States.”). Indeed, the very structure of the
Constitution was designed to ensure no one branch of government had absolute power, despite
the perceived inefficiencies, inevitable delays, and seemingly anti-democratic consequences that
may flow from the checks and balances foundational to our constitutional system of governance.
The Constitution provides guideposts to govern inter-branch relations but does not fully
delineate the contours of the executive power or the degree to which the other two branches may
place checks on the President’s execution of the laws. As pertinent here, the Constitution does
not, even once, mention “removal” of executive branch officers. The only process to end federal
service provided in the Constitution is impeachment, applicable to limited offices (like judges
and the President) after a burdensome political process. See, e.g., id. art. II, § 4 (impeachment of
President); id. art. III, § 1 (impeachment of federal judges). This constitutional silence on
removal perplexed the First Congress, bedeviled a President shortly thereafter and a second
President after the Civil War during Reconstruction (leading to condemnation of the former and
impeachment proceedings against the latter), and has beset jurists and scholars in our modern
era.
.. CONTINUED
..
COURT DECISION:
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♦ Mar 7, .. 5th Cir.: Long v. City of Llano, Texas .. Mr. Long began working for the City of Llano Texas in 1996. From 2006 onward, he served as the City’s Director of Public Works. He reported directly to the City Manager. Although Long apparently worked for the City without incident for several years, this situation changed around 2019. At that time, Long received an evaluation from City Manager Scott Edmonson noting that Long needed to monitor his departments more closely, ensure work orders were completed in a timely fashion, and keep better track of employees. Erica Berry, who became Interim City Manager in 2021, also noticed shortcomings in Long’s job performance. In addition to not following through on projects and exhibiting a general disregard for and dereliction of his duties, Berry found that Long was involved in two projects that resulted in legal issues for the City. Additionally, Berry learned that electric crew members supervised by Long had worked for thirty-six hours straight in July 2021. Long allegedly failed to check on these workers or relieve them, creating a safety issue. Finally, Berry discovered that Long was investigated—but not cited—by the police department in July 2021 for placing a boat into the water of the City of Llano Lake in violation of a City Ordinance. Long contends that the City’s portrayal of these incidents is inaccurate and that, in any case, he was often in the right. On August 10, 2021, Berry and Mayor Gail Lang met with Long about his performance. They advised him that he could voluntarily retire, or he would be terminated based on these issues. When Long declined to retire, the City terminated him. Eugene Long was fifty-seven years old. He sued the City for age discrimination under the Age Discrimination in Employment Act (“ADEA”). We begin with the basics. “The ADEA and the TCHRA prohibit ... .. CONTINUED .. COURT DECISION: (.html)
♦ Mar 6, .. 9th Cir.: Bordeaux v. Lions Gate Entertainment .. In January 2022, Andrea Bordeaux—one of the leading stars of the television show Run the World on the Starz! network—refused to take the COVID-19 vaccine, citing religious objections. Under Title VII of the Civil Rights Act of 1964, an employer must “reasonably accommodate” an employee’s religious practice unless it would impose an “undue hardship on the conduct of the employer’s business.” But World Productions, Inc. (WPI)—the company that produces the show—did not reasonably consider providing accommodations. Instead, it responded by firing her from Season 2 of the show. An employer, however, cannot fire an employee who refuses the COVID-19 vaccine based on religious beliefs—without at first considering alternative options. .. CONTINUED .. COURT DECISION: (.html)
♦ Mar 6, .. CCA: Ryan v. County of Los Angeles .. Dr. Timothy Ryan, a surgeon, was on the medical staff of Harbor-UCLA Medical Center (Harbor-UCLA) for six years. He was terminated in October 2019 after his medical staff privileges lapsed and were not renewed. Ryan sued the County of Los Angeles (County), which operates Harbor-UCLA, for retaliation in violation of three statutes: (1) Health and Safety Code; (2) Labor Code; and (3) Government Code3. The trial court sustained the County’s demurrer to the Health and Safety Code claim, and a jury returned a split verdict on the remaining claims, finding for the County on the Labor Code claim, for Ryan on the Government Code claim, and awarding Ryan noneconomic damages of $2.1 million. The trial court denied the County’s motion for judgment notwithstanding the verdict and awarded Ryan costs and attorney fees in excess of $3 million. Ryan appealed from the judgment, and the County appealed from the judgment and postjudgment orders. On appeal, the County contends it was entitled to judgment notwithstanding the verdict on Ryan’s Government Code section 12653 claim. Ryan contends the trial court erred by sustaining the County’s demurrer to the Health and Safety Code claim and denying Ryan’s motion to amend his complaint to add an additional cause of action. .. CONTINUED .. COURT DECISION: (.html)
♦ Mar 6, .. CCA: Barber v. The Cal. State Personnel Bd .. Appellant, Mr. Barber, began working for the Department of Corrections and Rehabilitation (Department) in 1998 and was later promoted to the position of parole agent at the facility. In 2019, the Department served appellant with a NOAA proposing to dismiss him from his employment based on seven instances of misconduct. The DUI. The NOAA alleged that appellant drove a car with a blood alcohol content above the legal limit. It further alleged appellant provided intentionally misleading information to the arresting officer about the number of drinks he had and why he was using breath mints. At the evidentiary hearing, the arresting officer described appellant has having been “honest and cooperative throughout the stop.” Cell Phone Possession. Department policy prohibits personal cell phones within any institution, unless approved by the warden and accompanied by a doctor’s statement of medical necessity. Appellant’s supervisor held a “Work Improvement Discussion” with him about the policy. He did not want to review it and refused to sign paperwork documenting the discussion. Six days later, appellant attended a meeting with his supervisor and two other senior officers during which he removed his personal cell phone from his pocket. Appellant admitted this was his personal cell phone. Although he claimed to have a medical reason for carrying the phone, appellant did not have the facility superintendent’s permission to bring it into the facility. There was no evidence he had a doctor’s statement documenting his need for the phone until after he was disciplined for possessing it. Discourteous and Hostile Conduct Toward Co-Workers. The NOAA alleged five incidents in which appellant was discourteous or hostile toward his co-workers or toward youth at the facility. The NOAA described an incident in which Youth Correctional Counselor (YCC) King was escorting a youth, Orozco, to his cell when appellant entered the housing unit. Orozco stopped walking with YCC King and started talking to appellant. King told the ward that he would receive a level one rules violation for failing to go to his room. Appellant told King that he would take Orozco to the dayroom. King complained that appellant was undermining him. Appellant then yelled, “‘Fuck you,’” and “‘shut the fuck up,’” to King. The NOAA described appellant’s tone as “aggressive” and noted that his comments were made in front of other staff and youth. The Department of Corrections and Rehabilitation (Department) dismissed Patrick Barber from his position as a parole agent assigned to the Ventura Youth Correctional Facility (the facility) after Barber drove while intoxicated, brought his personal cell phone into the facility, and was repeatedly discourteous, hostile and unprofessional toward his coworkers. .. CONTINUED .. COURT DECISION: (.html)
♦ Feb 17, .. SCD: Griffin v. Police Standards Commission .. On August 26, 2020, Police Officer Anthony Griffin and other Dover Police Department officers responded to a domestic violence call in the city. Griffin drove the female participant in the incident to the police station for processing. The woman was considered both a victim and a suspect because the violence was apparently reciprocal. After the woman was released, Griffin drove her home, and she volunteered her phone number. Shortly before the end of Griffin’s shift on August 26, the woman texted him for the first time. Per the Board, “the text messages became sexually explicit” almost immediately, and featured “a video of the woman dancing suggestively (‘twerking’) and . . . a photograph of Griffin’s . . . genitalia.” Griffin’s texts with the woman also directly implicated her pending criminal prosecution. The woman expressed concerns that the prosecution would hinder her career. Griffin assured the woman that her case would be dropped. In February 2023, Griffin’s photograph was included in a Dover Police Department Facebook post recognizing the Department’s school resource officers. The man involved in the August 26, 2020, domestic violence incident became aware of this post and Griffin’s continued employment and complained to the Department. As a result, Dover Police Lieutenant Kevin Streadwick (the “I.A. Investigator”) conducted an internal affairs investigation into the incident. In the course of this investigation, the I.A. Investigator interviewed both the Complainant and the woman. The woman confirmed the exchange of texts and photographs. Griffin was fully cooperative with the I.A. Investigator’s work, and in fact provided copies of the texts at issue. However—in anticipation of questioning from the I.A. Investigator—Griffin accessed the Delaware Criminal Justice Information System (“DELJIS”) to obtain information on both the woman and the Complainant. Although DELJIS ultimately decided not to revoke Griffin’s access to its system, the Board found that Griffin accessed the system without a departmental purpose. The investigation of the August 26, 2020, incident was not the first time that Griffin’s interactions with women had resulted in discipline. Griffin had previously received a 480-hour suspension, a demotion from corporal to patrolman first class, and imposition of a two-year probationary period for repeatedly visiting a particular woman’s home in his patrol car while on duty. Griffin was romantically involved with this woman for two years, and his supervisors had specifically told him not to visit her in this way. Despite his disciplinary history, there is evidence that two Delaware police departments have offered to employ Griffin. These offers are conditional on Griffin’s retaining his certification. .. CONTINUED .. COURT DECISION: (.html)
♦ Feb 13, .. CSAM: Kasmir v. Retail Services & Systems .. RSSI provides administrative services to retail stores operating under the “Total Wine” brand name. Ms. Kasmir began working as a Facility Manager for RSSI in March 2009. At that time, she was managing 55 Total Wine retail stores. In 2011, Ms. Kasmir was promoted to Director of Facilities Management. By 2018, she was responsible for 220 Total Wine retail stores. Between 2015 and 2017, Sumeet Mittal served as Ms. Kasmir’s supervisor. Mr. Mittal rated Ms. Kasmir as “exceeds expectations” in her 2016 performance review. Mr. Mittal gave Ms. Kasmir the same performance rating in 2017, but he noted in his review that Ms. Kasmir needed “to focus on building relationships in the company and sharing her softer side with her team by acknowledging their good work in the moment and celebrating with them.” Over the years, several of Ms. Kasmir’s direct reports made complaints against her. In May 2015, Christine Fernandes, one of Ms. Kasmir’s direct reports, emailed human resources about an “ongoing issue” the team was having with Ms. Kasmir. Ms. Fernandes stated that working under Ms. Kasmir’s management was becoming increasingly difficult, noting that the team was subject to “continuous and redundant lectures, sarcasm, and [an] unapproachable nature” that Ms. Kasmir brought to the team. In spring 2016, another subordinate complained that Ms. Kasmir had retaliated against her. The complaint resulted in an investigation, and human resources determined that Ms. Kasmir had “mishandled her communication” with the subordinate. .. CONTINUED .. COURT DECISION: (.html)
♦ Feb 13, .. DcDc: Harris v. Buttigieg (Transportation) .. Harris is an “African American” male who was employed as a “Supervisory Management Analyst/Director” by FAA. The complaint alleges that Harris is “disabled,” but does not specify the nature of his disability. Peter Merkle, a Caucasian male, was Harris’s supervisor at FAA from December 2018 to March 2022. Abigail Smith, a Caucasian female, became Harris’s direct supervisor in March 2022. Harris and his supervisors worked in the Unmanned Aircraft Systems Integration Office. Harris was the only African American male manager in the Office. In 2018, Unmanned Aircraft Systems began a reorganization of its divisions and functions. Under a preliminary reorganization plan, Harris was assigned additional supervisory responsibilities and preliminarily approved for a promotion from K-Band to L-Band, which would have increased his compensation and bonuses. Id. But before the plan was implemented, Merkle assumed the role of Executive Director of the Integration Office Harris alleges that Merkle immediately began to “target, scrutinize, [and] attack” him, and that Merkle canceled all meetings with him, including meetings that were “customarily held” between the Executive Director and senior managers. According to Harris, no Caucasian managers were similarly “demeaned” by Merkle; and Merkle approved a 7% increase in salary for Joseph Morra, a Caucasian male manager, but did not give any salary increase to Harris. In March 2019, Merkle submitted the Office’s final reorganization plan and “the only portion of the reorganization plan that was excised was [Harris’s] promotion to L-Band.” The complaint asserts that Merkle made two racially discriminatory comments in 2019 and 2020: he allegedly asked a black female employee why she was “acting like a Black Lady;” and commented that he was “excited about getting new neighbors and no longer being surrounded by Ethiopians.” An employee submitted an anonymous complaint about Merkle’s racially discriminatory comments, and as part of an internal investigation in August 2020, Harris submitted a statement. Harris alleges that because of the statement, in November 2020, Merkle “escalated” his hostile treatment and lowered Harris’s November 2020 performance rating, which reduced his bonus and merit increases. Harris also alleges that Merkle has a history of terminating employees of color: he reassigned and fired two African American female executive assistants and ultimately hired a Caucasian female for that position. .. CONTINUED .. COURT DECISION: (.html)
♦ Feb 12, .. ICA: Moone v. State of Indiana .. In August 2022, Moone began working with Helping Veterans and Families (“HVAF”), a “local nonprofit that serves veterans and families facing homelessness.” Moone began working at HVAF as an intern, and HVAF later hired her for a full-time position as a community center specialist. Early in her employment with HVAF, Moone met R.M., a program coordinator at HVAF. Moone and R.M. discussed Moone’s education and “issues that Moone was having with coworkers.” In early December 2022, Moone came to R.M.’s office and “verbally expressed” her romantic interest in him. R.M. told Moone he was not interested in pursuing a romantic relationship with her because he preferred to “separate his personal and professional lives.” Approximately twenty minutes later, Moone sent R.M. an email summarizing their conversation and “that the proverbial ball was in his court to make a decision if he wanted to pursue any kind of romantic relationship at that point.” R.M. did not initiate a romantic relationship with Moone and they continued to have a professional relationship. At some point, R.M. gave Moone his personal email address “for him to be able to send links to things that would help her with her schooling” and “for her to kind of discuss some of the issues that she was having at work.” At some point during her employment at HVAF, Moone filed several grievances with human resources in which she alleged “theft, discrimination, harm to veteran clientele, and veteran employees, as well as unsafe working conditions.” Moone saw herself as a “whistleblower.” Moone and HVAF’s CEO E.H. met with human resources, and Moone then withdrew her complaints. In December 2022, Moone began having disagreements regarding programming with E.H. because E.H. would not allow Moone to conduct a research project regarding cultural competency at HVAF. In late December, Moone was fired from HVAF because she “created a hostile work environment with several colleagues.” After she was fired, Moone began sending emails 3 to R.M. On January 19, 2023, the State charged Moone with two counts of Level 6 felony intimidation and eight counts of Class A misdemeanor invasion of privacy based on alleged actions in early January against E.H. and R.M. After those charges were filed, the trial court in F6-1754 issued a no contact order that prohibited Moone from having any contact with R.M. or E.H. On January 29, 2023, Moone sent thirty emails to R.M.’s personal email address. R.M. did not respond. These emails included links to pornographic videos, voice messages, video recordings, and nude pictures of Moone. In one email Moone stated, “the prison door is open, and it’s your choice when you want to walk out!” Moone believed she could see the predictive text for an anticipated reply from R.M. in which R.M. stated “I’m going to see you soon” though no such reply materialized. In another email Moone told R.M., “I can’t stop because you don’t let go of who you love. No matter how crazy we look or feel. . . . we’re stuck together. And no matter what I say, I’ll never stop sending you letters from home. On January 30, 2023, and January 31, 2023, Moone sent thirty-four additional emails to R.M. These emails included sexually explicit language and links to pornographic websites. In one email, Moone stated: “I want to make you a dad. . . . I can’t wait. No matter what we’ll have kids together.” In another, she wrote: “Don’t be scared. I’ll never leave you.” On February 2, 2023, Moone posted a message on social media website LinkedIn that stated: “No matter how bad things become, or how lost, sick, or wounded a woman is, a man never leaves her. Not if he loves her. R.M. will never leave me. He loves me. He’ll lie, cheat, give false testimony, kill or die for her.” .. CONTINUED .. COURT DECISION: (.html)
♦ Feb 6, .. CCA: Hearn v. Pacific Gas & Electric Company .. In 1996, Hearn began working for Pacific Gas & Electric Company (PG&E) as a meter reader. A few years later, he began training as a lineman and completed his apprenticeship in 2004. During the relevant time period, Hearn worked out of PG&E’s facility in Napa (the Napa yard). In or around 2016, PG&E became aware of performance issues at the Napa yard, including delays in maintenance and repair projects and rising overtime claims. Roy Surges, PG&E’s Electric Superintendent, began working with Tanya Moniz-Witten, a senior director at PG&E, to help address the situation. In early 2018, Surges noted “excessive meal costs, suspicions of misconduct, a high number of rest periods, poor attendance, schedule performance, multiple retaliatory compliance and ethics complaints, poor moral and bad attitude” among “the bulk” of the senior crew and foreman in the Napa yard. Surges was working with the supervisors to provide “added oversight measures” and brought in corporate security to assist. PG&E began gathering data, including timecards and vehicle GPS records, in order to “deal with” some “bad apples.” Moniz-Witten also brought in ”HR/Labor” for “advisement and help” in addressing the situation. By June 2018, PG&E had focused its investigation on the eight employees from the Napa yard charging the most overtime and double time. The investigation was subsequently narrowed down to five of those eight— Hearn was identified as one of the five based on “potentially false time cards.” In late June 2018, Hearn and four other linemen were suspended. Hearn was informed he was being placed on “crisis leave” due to an “alarming amount of discrepancies” in Hearn’s timecards. .. CONTINUED .. COURT DECISION: (.html)
♦ Feb 6, .. OCA: Bevelacqua v. Tancak .. Just after 2:30 a.m. on August 20, 2016, Sara Bevelacqua was killed when she was thrown from the back of a motorcycle. Its driver, Justin Tancak, was speeding when Lorain County Sheriff’s Deputy Adam Shaw spotted him and signaled for him to stop. A chase ensued, and Deputy Shaw pursued Mr. Tancak at speeds of almost 120 mph. Several minutes later, Deputy Shaw was directed to terminate his pursuit. He acknowledged the directive, reduced his speed, and deactivated his cruiser’s lights and sirens. Nevertheless, he continued to follow the motorcycle and drive well over the posted speed limit. He was still following the motorcycle when Mr. Tancak lost control and crashed near the eastbound ramp to State Route 20 from State Route 57. The crash resulted in minor injuries to Mr. Tancak and fatal injuries to Ms. Bevelacqua. Following a review of the incident, the Lorain County Sheriff’s Department terminated Deputy Shaw’s employment. Mr. Bevelacqua, individually and as administrator of his daughter’s estate, filed suit against Mr. Tancak, Mr. Tancak’s insurance company, the Lorain County Sheriff’s Department, Deputy Shaw, and unnamed John Does. Mr. Bevelacqua’s alleged (1) a negligence claim against Mr. Tancak; (2) a gross neglect claim against Lorain County, Columbia Township, and Deputy Shaw, (3) a negligent hiring, training, and retention claim against Lorain County and/or Columbia Township; (4) an intentional and/or negligent infliction of emotional distress claim against all named defendants; and (5) a wrongful death claim against all defendants. The complaint sought compensatory damages, burial and funeral expenses, costs, attorney fees, and punitive damages from all named defendants, jointly and severally. .. CONTINUED .. COURT DECISION: (.html)
♦ Feb 5, .. OCA State v. Sheppard .. Defendant (Mr. Sheppard) and T.R. were introduced by a mutual friend in 2022 when they worked together at a snack food manufacturer in Massillon, Ohio. The two worked in different departments but would talk when Defendant came to T.R.’s station or when they would see each other around the facility. T.R. initially considered him a work friend. They did not socialize outside of work. Although Defendant gave T.R. his phone number, she never gave hers to him. At one point, T.R. asked Defendant to give her a ride home from work. She gave him her address so he would know where to drop her off. She felt comfortable doing that because she knew she was moving soon after and would not be giving Defendant her new address. On the ride to her home, they talked about their churches and Defendant told T.R. about a difficult experience he had at the church he was attending. T.R. told him that he could come to her church. She gave him the church’s location and the phone number. Defendant began coming to T.R.’s church and attending the Sunday service and a midweek bible study. Soon after he gave her the ride home, Defendant began to make T.R. feel uncomfortable at work. He asked her twice to go on dates. She declined the requests and told him she “was in a relationship with God.” He began following her around and talking to her, even when she asked him to stop. Although she did not take her break at a scheduled time, he would be outside to meet her whenever she went on her break. He asked her if she wanted to have sex and she said no. Defendant once told T.R. that he couldn’t see his children because he was going to ask T.R. to marry him. On one occasion, T.R. fell asleep during a break and awoke to find Defendant standing over her massaging her shoulders. She “shoved him off” and told him to get away from her. He asked “you don’t like that?” and she responded “no.” She was upset at the time because the unwanted touching made her feel scared and uncomfortable. She wanted Defendant to stay away from her. .. CONTINUED .. COURT DECISION: (.html)
♦ Feb 5, .. TWCAB: Payne v. Signet Jewelers .. Ms. Payne (“Employee”) worked as a sales associate for Signet Jewelers (“Employer”) when she was involved in a verbal altercation with another employee on March 3, 2023. Prior to beginning her shift on that date, Employee opened an email from her store manager, Kelly Sandlin (“Sandlin”), regarding allegations that Employee had engaged in inappropriate workplace behavior. In her email, Sandlin related that several employees had reported Employee for unprofessional behavior that made them “uncomfortable.” The email did not describe the nature of the reported behavior but warned Employee that such behavior would not be tolerated. Employee contacted Sandlin for more information, but Sandlin was not working that day and indicated they would discuss it in the near future. Although Employee testified differently, Sandlin testified she told Employee not to discuss the email with her coworkers that day during her shift. Regardless, Employee ultimately confronted one of the coworkers during their shared shift on March 3, which resulted in an argument. Employee testified that her coworker made what she perceived as a threatening gesture but admitted there was no physical contact. Sandlin later met with both employees, which led to another verbal altercation, and both employees were sent home from work. Neither employee was disciplined, but, thereafter, Sandlin no longer scheduled Employee to work the same shift as this coworker. On March 16, Employee saw her primary care physician, Dr. Jian Wei, and reported having increased anxiety because she was “under a lot of stress lately.” Dr. Wei determined a referral to psychiatry was appropriate and prescribed Lexapro. Before obtaining any further treatment, Employee filed a petition for benefit determination in April 2023, requesting temporary disability and medical benefits. Employee obtained a Standard Form Medical Report for Industrial Injuries (“Form C-32”) from Dr. Wei regarding her condition. On the form, Dr. Wei stated that Employee “has a stressful job. Was threatened by her coworkers.” Dr. Wei did not assign an impairment rating but did indicate Employee was restricted from work beginning March 16, 2023 until September 16, 2023. Employer objected to the use of the Form C-32, and the parties took Dr. Wei’s deposition in May 2024. At his deposition, Dr. Wei admitted the medical note from Employee’s March 16, 2023 appointment did not identify any specific incident or incidents as having impacted Employee’s mental health and did not identify work as a specific cause of Employee’s mental health problems. He later testified he may have known at that appointment that Employee had a stressful job but stated that he did not know “any specifics” on that date. Although Dr. Wei confirmed the accuracy of the information he included on the Form C- 32, he admitted he did not see Employee during the time period he restricted her from working and deferred to a “specialist” regarding any diagnosis, impairment, or restrictions from working due to her alleged mental injury. Importantly, he also testified that one verbal altercation with no physical contact was not more than fifty percent the cause of Employee’s mental condition to a reasonable degree of medical certainty. An expedited hearing took place on October 17, 2024. The trial court’s order stated Employee testified she was “bullied, threatened, and insulted” during the March 3, 2023 incident and that the incident worsened her pre-existing anxiety. The statement of the evidence approved by the trial court reflects that Employee admitted she initiated the interaction with her coworker that led to the verbal altercation. The trial court determined Employee had presented insufficient proof at the expedited hearing stage to show she will likely prevail at trial in proving the compensability of her claim and denied her request for benefits. Employee has appealed. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 26, .. FLRA: Prisons v. AFGE .. The Agency temporarily assigned employees from one of its correctional institutions to another institution. The Union filed a grievance alleging that the Agency violated the parties’ agreement by denying those employees overtime assignments. As a remedy, the grievance sought that the employees be made whole, with retroactive overtime, and other relief under the Fair Labor Standards Act. When the parties were unable to resolve the dispute, the Union invoked arbitration. In an interim award, the Arbitrator framed the issue, in relevant part, as whether the grievance was timely under the parties’ agreement. .. CONTINUED .. FLRA DECISION: (.html)
♦ Dec 26, .. MCA: Buckley v. City of Westland .. Plaintiff was terminated from the Westland Police Department (WPD) for violating numerous policies and regulations during an incident involving a jail detainee while plaintiff was the supervising sergeant responsible for overseeing the jail and its detainees. Plaintiff filed this action alleging that he was wrongfully terminated and maliciously prosecuted. He asserted claims for age discrimination, disability discrimination, malicious prosecution, invasion of privacy–false light, civil conspiracy, and intentional infliction of emotional distress. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 26, .. PCC: Bourne v. UCBR .. Claimant was employed as a maintenance custodian driver by the Southeastern Pennsylvania Transportation Authority (Employer) from June 5, 2000, through November 22, 2022, at which time he was discharged for violating Employer’s Substandard Performance Policy. After Claimant’s employment was terminated, Claimant applied for unemployment compensation benefits, which were denied by the Unemployment Compensation Service Center (UC Service Center) pursuant to Section 402(e) of the UC Law. Claimant appealed, and the Referee conducted a hearing. At the hearing, the Referee took testimony from Employer’s witnesses, its Labor Relations Supervisor and its Director of Maintenance, and from Claimant. Employer’s witnesses testified Claimant was initially suspended then later resigned in lieu of termination from employment after he removed a handbag from a raffle table. Director of Maintenance described Employer’s investigation, which included reviewing surveillance video and speaking with Claimant directly. Director of Maintenance testified Claimant admitted to removing the handbag but “indicated it was a misunderstanding” as “he wasn’t sure how the raffle worked,” although Claimant admitted he had been involved in similar raffles in the past. Claimant testified he took the handbag “but misread the raffles.” When the Referee asked Claimant why he thought he was entitled to the handbag, Claimant responded: Yes what I read there, it said, free raffle, personal beeper. And I went up to the counter, and I asked the dispatcher for a pen. He said I don’t need a pen, just sign my name here and get it. She gave me a pen and I walked back, and I signed the board. When I signed the board, just my name on it. When I signed the board then I bring back the pen and I was going to take a gift. And I went back there and took the gift and I walked out. I didn’t hide it and I walked out with it in my hands. And I walked on. I walked back to my location, because it was across the street. I went to my car and put it in to my car. And when I put it in my car I went back, took a seat and started working again. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 20, .. FDCA: Logan v. Logan .. The underlying case is a dispute between Jonathan and Janice Logan—son and mother—regarding the ownership and operation of a family business named Smart Communications. Jonathan is the founder, CEO, and president of the company. Jonathan's father and Janice's husband, James Logan, was a director and the CFO of the company. Janice had no formal role with the company. Jonathan and James each owned 50% of the company's stock, though James later transferred his stock to his trust. In addition to salaries, Jonathan and James received perquisites as part of their "compensation packages." Jonathan had access to several company- owned boats and vehicles, as well as a house and a condominium unit. James had access to another company-owned house, in which he and Janice resided, and another company-owned automobile. Janice was not paid a salary or provided any benefits other than what she enjoyed derivatively through James. James died on October 16, 2022. Janice continued living in the company-owned house and kept possession of the company-owned automobile that James had used prior to his death. Jonathan directed one of the company's accountants to "give Janice about a hundred thousand dollars a year . . . so she has some walk-around money" for her comfort. However, allegedly without Jonathan's authorization or knowledge, the accountant made Janice a salaried employee with health benefits. Precipitating the underlying proceeding was a dispute regarding the disposition of James' stock. Because James had transferred his stock to his trust, the trust, of which Janice was the trustee and beneficiary, remained a 50% shareholder of Smart Communications. However, Jonathan produced a shareholders' agreement purportedly signed by him and James that required the sale of James' stock to the company upon his death. Noting the circumstances and timing surrounding Jonathan's production of the agreement, Janice disputed its authenticity and claimed that the trust was entitled to remain a 50% shareholder. Jonathan and Janice filed suit against each other for declaratory relief concerning the validity of the shareholders' agreement, among other claims, which the trial court consolidated. HERE, Jonathan Logan and Smart Communications Holding, Inc., appeal the trial court's nonfinal order granting a temporary injunction in favor of Janice Logan, individually and as trustee for the James Logan Family Trust dated February 10, 2021. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 19, .. 6th Cir.: Detillion v. Ohio Dep't of Rehab. & Corr. .. Ms. Detillion was a prison guard at the Ohio Department of Rehabilitation. On the night of the incident, Ms. Detillion locked Mr. Jones in a cell by himself and refused to let him speak with a mental health professional about a recent death in his family. When Jones threatened to kill himself, a friend asked to enter the cell to calm him down. Ms. Detillion called the friend a “f*g” who, she claimed, only wanted into the cell “so they could f*ck.” Ms. Detillion had the friend removed from the block. Mr. Jones inquired about his friend, at which point Detillion “announced” to the cell block “that Jones said he was going to kill himself if they didn’t move him to where his ‘boyfriend’ was” located. Ms. Detillion later found Jones with a noose and mocked him for not tying it correctly. She also joked that Jones did not “have the guts” to kill himself. Throughout the evening, Ms. Detillion “kept telling Jones to do it and calling him every name in the book.” Inmate Ronnie Jones eventually succeeded in hanged himself in his cell Afterwards, multiple inmates then threatened Ms. Detillion, blaming her for Mr. Jones' suicide. After an investigation of Ms. Detillion’s alleged misconduct, her employer initially reassigned her and later terminated her employment. Ms. Detillion appeals her wrongful termination. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 19, .. FLRA: AFGE v. VA .. The AFGE Union asked the VA management to address a lack of access to drinking water for bargaining-unit employees in the Agency’s mental-health clinic, which is a locked, controlled-access, outpatient mental-health clinic. Specifically, the Union sought the installation of an ice and water machine in the employee break room. After attempts to informally resolve the issue were unsuccessful, the Union submitted a formal demand to bargain. The parties requested assistance from the Federal Service Impasses Panel (FSIP) with mediation. In the meantime, the Agency installed a reverse-osmosis water filter in the employee break room, but no mechanism that provides ice. When mediation failed, the parties requested further FSIP assistance. The Agency subsequently asserted the issue was nonnegotiable, so FSIP dismissed the parties’ dispute for lack of jurisdiction. The Union then filed this petition for review (petition) with the Authority. .. CONTINUED .. FLRA DECISION: (.html)
♦ Dec 19, .. WCA: Cooper v. German Wise Dental .. Ms. Cooper was an assistant in a dental office. Sam and Rima Wise took over the dental practice. Sam Wise was the dentist and Rima became the office manager of the dental practice. Wise immediately started making frequent inappropriate comments to members of his staff, including Cooper. Despite warnings, he made daily inappropriate comments to or about patients and staff that were sexual in nature or gender based. Cooper and other employees complained but Wise responded that he had unfettered freedom to say what he wanted and any staff who did not like his comments should leave. Wise told his human resources manager to fire anyone who complained and to space out the terminations to avoid any lawsuits. Cooper was eventually fired after complaining and making negative statements about the dental practice in a letter supporting a coworker’s unemployment claim. After she was fired, Cooper did not receive promised bonuses or severance payments. Cooper sued Wise, Rima, and German Wise for gender discrimination, specifically hostile work environment; wrongful termination; breach of contract; and meal period violations. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 18, .. CCA: Dyer v. New American Funding .. In October 2020, Ms. Dyer began working with New American Funding, LLC (NAF) as a “Loan Officer Assistant” for NAF’s outside loan agent division. Dyer was diagnosed with cancer in February 2022, and the parties ended their relationship in September 2022, when Dyer exhausted her approved leave In July 2023, Dyer filed a complaint against NAF, alleging various employment-related claims. In response, NAF moved to compel arbitration of Dyer’s claims pursuant to an electronically executed “Comprehensive Agreement Employment At-Will and Arbitration Policy” (the arbitration agreement), which purportedly bears Dyer’s electronic signature and a “Time Signed” of October 6, 2020 at 6:51 p.m. NAF represents that Dyer “voluntarily resigned from her position,” whereas Dyer asserts that she was “fired” when NAF would not “extend her unpaid leave” so that Dyer could “finish her radiation treatments” and “heal” from surgery. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 18, .. OCA: Homrighausen v. Dover .. Mr. Homrighausen is the former Mayor of Dover, Ohio, a municipal corporation located in Tuscarawas County, Ohio. On March 11, 2022, a Tuscarawas County, Ohio grand jury indicted Appellant on the following felony charges: One count of Theft in Office, and (B)); One count of Having an Unlawful Interest in a Public Contract, and (E)); Six counts of Filing Incomplete, False and Fraudulent Tax Returns, and four misdemeanor charges including: One count of Soliciting Improper Compensation, and (D)); Two counts of Dereliction of Duty, and one count of Representation by Public Official or Employee. The charges arose after an investigation uncovered irregularities with fees paid to Appellant, the then Mayor, to perform weddings. In said case, the state of Ohio asserted Appellant used City resources and charged a fee for the weddings, but pocketed the fees for himself instead of turning them over to the City treasury. On November 17, 2022, a jury found Appellant guilty on the felony charge of Theft in Office, and five misdemeanor charges: four counts of Soliciting Improper Compensation, and one count of Dereliction of Duty. Appellant, Mr. Homrighausen filed an appeal. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 18, .. DcDc: Dickerson v. Grant Leading Technology .. Plaintiff, Mr. Dickerson, was employed at GLT for roughly two years, from 2019 to 2021. During that time, Dickerson “suffered epileptic seizures, insomnia, depression, and anxiety and panic attacks and an associated mental health diagnosis/disorder, exacerbated by work-related stress and demands,” as well as other debilitating health problems. According to Dickerson, these “disabilities and . . . complications related to his disabilities” required him “to miss work and/or telework,” limited his “ability to participate in back-to-back meetings,” required “periodic rest and/or breaks during the day,” and necessitated a “flexible schedule.” At various points in 2019, Dickerson requested disability-related accommodations. In September 2019, he requested the ability to remotely join meetings from his office to avoid a ten-minute walk to a separate building; in December 2019, he requested the ability to sit (rather than stand) during certain meetings. GLT “disregarded” these requests. Dickerson also claims that he became the target of harassment and reprisal due to his disabilities. He alleges that his coworkers “mock[ed]” him for “wearing sunglasses indoors” due to his “ocular migraines” and that, “during an office Christmas party” in December 2019, his coworkers “purchased [him] a pair of women’s sunglasses as a gag gift.” At that same Christmas party, several coworkers remarked that Dickerson appeared “thin” and that Dickerson “should get a plate of food.” When GLT management “took no action to stop” these comments, Dickerson became “so embarrassed and uncomfortable that he made a very early exit from the party.” Dickerson further alleges that he was denied “more desirable workplace tasks, responsibilities, and associated opportunities for workplace advancement” and was given poor performance reviews “heavily motivated by bias and discrimination. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 17, .. NJSC AD Willis v. Board of Review .. Appellant was employed by Housing Authority of the City of Camden, New Jersey (HACC) in various positions beginning on April 3, 2000. On September 21, 2009, she was appointed Director of HACC's Housing Choice Voucher (HCV) program, commonly known as Section. On October 18, 2017, appellant married Mark Willis, a landlord who participated in the HCV program. On December 21, 2018, HACC placed appellant on paid administrative leave while it conducted an internal investigation into alleged conflicts of interest. The investigation was prompted by HACC's receipt of a letter from Mark Willis's former spouse. She reported that while appellant was the Director of the HCV program, she was also a principal of MTW Investment Group, LLC (MTW), which received rent subsidy payments from HACC through the HCV program. The tipster also reported that after Mark Willis married appellant he continued to receive rent subsidy payments from HACC through the HCV program for various properties. The investigation revealed that appellant created MTW in May 2015. MTW began receiving rent subsidy payments from HACC through the HCV program in July 2015. Those payments continued until appellant's suspension. While appellant claimed to have transferred her interest in MTW to a third party on December 16, 2016, state records listed appellant as having an interest in MTW as late as March 2019. HACC also produced evidence that appellant was listed as the party to receive local property tax bills for a parcel owned by MTW in 2019. HACC determined appellant engaged in intentional wrongdoing. At the conclusion of the investigation, HACC terminated appellant. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 17, .. VCA: Campbell v. Groundworks Operations .. Appellants are former employees of Groundworks Operations, LLC, which staffed affiliated companies, including JES Construction, LLC. Groundworks and JES are appellees in this action. Smith, Grandon, and Beck were “certified field inspectors” who were paid solely by commission on the sales they made. Their job was to travel to new customers’ homes to sell construction services. Campbell was a service technician who was paid partially by commission. His job was to “repair previous installations and attempt to sell the existing customers additional goods and services.” When appellants staffed JES, they conducted business in JES’s name. Appellants received half of each commission after JES accepted a signed contract and customer deposit and the customer’s three-day recission period had expired. They received the other half once the job was complete and the customer made final payment. In January 2022, appellees required all employees to sign a new written commission policy as a condition of their employment. The policy provided that appellants would not pay wages to their sales employees for jobs where the customer’s final payment was not received within 14 days of the end of the worker’s employment, regardless of whether the employee left the job involuntarily. Smith, Grandon, and Beck each signed the policy. They estimated that they had not been paid about “$20,000 each for jobs they sold but remained unfinished at the time their employment ended.” Appellants sued in March 2023. Specifically, appellants alleged that: (1) appellees refused to pay earned commissions upon the termination of appellants’ employment; (2) appellees deducted from commissions without appellants’ written consent; and (3) appellees required appellants to sign the agreement forfeiting their commissions as a condition of their employment. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 13, .. FLRA: Customs and Border Protection v. NTEU Union .. On November 28, 2018, Customs and Border Protection placed the grievant on administrative duty due to a medical condition and temporarily revoked the grievant’s authority to carry a firearm (firearm authorization). Although the parties’ collective-bargaining agreement (CBA) requires Customs and Border Protection to give an officer written notice explaining why it is revoking a firearm authorization, the Agency did not issue the requisite notice until February 5, 2019. The Union filed a grievance alleging that the Agency violated the CBA by failing to issue the notice until February 5, 2019, and requested the “immediate return of weapon, backpay and interest for lost overtime . . . , a letter of apology . . . , attorney’s fees, and any other remedy deemed appropriate.” The matter went to arbitration. .. CONTINUED .. FLRA DECISION: (.html)
♦ Dec 12, .. CCA: Assn. for L.A. Deputy Sheriffs v. County of L.A. .. Los Angeles Law Enforcement Gangs .. Finding law enforcement gangs damage the trust, reputation, and efforts to enhance professional standards of policing agencies throughout the state. Effective January 1, 2022, California Penal Code section 13670 requires law enforcement agencies to “maintain a policy that prohibits participation in . . . law enforcement gangs and . . . makes violation of that policy grounds for termination.” It also requires law enforcement agencies to cooperate with investigations into such gangs by an inspector general or other authorized agency. Effective January 1, 2022, California Penal Code section 13510. authorizes revocation of a peace officer’s certification for “serious misconduct,” including “participation in a law enforcement gang” or “failure to cooperate with an investigation into potential police misconduct.” On May 12, 2023, the Office of the Inspector General for the County of Los Angeles (OIG) sent a letter to 35 individual Los Angeles Sheriff’s Department (LASD) deputies selected based on information gleaned from personnel records. Citing Penal Code sections 13670 and 13510.8, the letter directs the deputies to appear and answer questions about their knowledge of and involvement in law enforcement gangs, to display certain tattoos located on their lower legs or arms, and to provide photographs of such gang-associated tattoos on their bodies. On May 18, 2023 – six days after the OIG’s letter – the Los Angeles County Sheriff Robert Luna sent the deputies his own letter, via email, ordering them to participate in the interviews and warning that refusal to cooperate would be grounds for discipline, including termination. The union representing the deputies—the Association for Los Angeles Deputy Sheriffs (ALADS)—filed an unfair labor practice claim with the Los Angeles County Employee Relation Commission (ERCOM) .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 12, .. CCA: Oggel v. Cal. Dept. of Fish and Wildlife .. Appellant Mr. Oggel, a former game warden, was suspended from his position for disciplinary reasons, then medically demoted and then terminated after he failed to report to work at the new, demoted position. The Department medically demoted appellant to an office technician position at a location more than 80 miles from appellant’s home. Between the end of appellant’s disciplinary suspension and the date of his medical demotion, the Department paid appellant $301,000 in backpay and other compensation. Appellant never reported for work at the demoted position or at his former workplace. The SPB found that the Department did not present sufficient evidence to support the medical demotion. It further found, however, that appellant was not entitled to additional compensation because he did not report for work after the medical demotion. The Dept. of Fish and Wildlife appealed the decision. The Appellant appealed the decision. The question presented here is whether the Department of Fish and Wildlife (the Department) owes backpay and other compensation .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 11, .. NJSC AD: Palinczar v. Trenton Police Department .. Hired by the Department in 2001, police officer Palinczar primarily served as a patrol officer. The precipitating event that led to the IA investigation occurred at his home on the night of July 21, 2018. While they were watching television, Ms. T.L. went outside to smoke a cigarette. Shortly after she returned, T.L. "slouched over" and was nonresponsive. Palinczar called 9-1-1 and performed CPR while waiting for emergency services. Palinczar smelled alcohol on T.L.'s breath. He found a small empty bottle of alcohol in her purse, but no evidence of drug use. Officer Fornarotto testified he was dispatched to the scene "for a person having difficulty breathing." When he arrived, however, Palinczar asked if Fornarotto "had the stuff to revive her." Understanding Palinczar meant T.L. "was overdosing on opioids," Fornarotto administered Narcan. Palinczar initially told Fornarotto T.L. "was just drinking." Another dose of Narcan was administered at the home. Upon further questioning, Palinczar initially indicated T.L. "may have taken a pill before arriving at his house" and then stated T.L. "may have taken oxycodone at his house." Ms. T.L. was revived at the hospital. That event led to an Internal Affairs (IA) investigation. At the hearing, Palinczar testified he was "petrified" while performing CPR on T.L. because he "didn't want this woman to die" and "was worried about his job" . . . as it "looked bad." After an extensive investigation of the Incident, IA officers uncovered a multitude of infractions, which occurred during overlapping time periods. HERE, Petitioner Michael Palinczar, a former police officer, appeals his termination by the City of Trenton, New Jersey. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 11, .. OCA: Rivera v. Perlo Construction .. Plaintiff is originally from Chile, and his primary language is Spanish. In Oregon, he worked as a laborer for Perlo, a construction company. On Perlo’s jobsite, the other employees repeatedly harassed plaintiff, improperly touched him, and attempted to intimidate him because of his nationality and limited English skills. When plaintiff reported those incidents to his supervisors and Perlo’s risk management director Wood, they dismissed his complaints. They concluded, without an adequate investigation, that either the conduct had not occurred or that the sort of harassment plaintiff reported was par for the course on construction sites. “As a result of the workplace harassment, mistreatment, assault, and discrimination [that plaintiff suffered at Perlo], plaintiff began experiencing emotional distress symptoms from his dormant PTSD.” Those symptoms led to plaintiff’s filing a workers’ compensation claim “indicating that he was suffering from PTSD” caused by the working conditions at Perlo. After SAIF denied plaintiff’s workers’ compensation claim, he brought this employment discrimination action against Perlo, Wood, and three other defendants involved in processing his workers’ compensation claim. Given the issues raised on appeal, we focus on how, according to the complaint, defendants SAIF, Integrity, and Wicher processed plaintiff’s workers’ compensation claim. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 10, .. CCA: Lee v. Rockstar Staffing .. Rockstar Staffing is a hospitality staffing agency, and Malibu, the operator of a hotel and restaurant, was one of Rockstar’s clients. In their contract, Rockstar agreed to “‘recruit, screen, interview, and assign its employees . . . ’” to work at Malibu. In May 2019, Ms. Lee saw a Rockstar advertisement seeking applicants for restaurant jobs. Rockstar Staffing hired plaintiff and respondent Ms. Lee (Lee) and assigned her to work at Mani MBI (DE), LLC dba Malibu Beach Inn (Malibu). Lee has sickle cell anemia and was hospitalized due to a flare-up of her symptoms. While she was in the hospital, Rockstar informed her that she was no longer needed at Malibu. This lawsuit followed. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 10, .. 11th Cir.: Baker v. Ascend Performance Materials .. Mr. Baker worked for Ascend Performance Materials for almost twenty-six years. Due to his lung condition, Baker began a medical leave of absence beginning on November 9, 2020, and was later approved for longterm disability benefits. He was never medically cleared to return to work and Ascend terminated his employment on May 26, 2021. Mr. Baker first petitioned for workers’ compensation benefits on August 3, 2021. The petition claimed he sustained a bilateral lung injury “due to repetitive exposure to nylon pellets and antistatic fiber particles and dust” while working at Ascend’s manufacturing facility. Ascend denied Baker’s claim, providing the following response: “There is no evidence of any accident or injury arising out of the claimant’s employment. On April 6, 2022, Baker filed a negligence action, alleging Ascend breached its duty to maintain a safe work environment and caused his lung injuries. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 10, .. FDCA: Gessner v. Southern Company .. Mr. Gessner, worked for Gulf Power Company for nearly a decade. He claimed to have received positive performance evaluations for over nine years, while his employer claimed that he consistently struggled with issues relating to performance, skills progression, and competencies as a welder mechanic. Gessner was disciplined for various incidents over the course of his employment, and he raised a number of safety-related concerns throughout his time with the company. Gessner’s employment was terminated after he used disparaging language towards a coworker and acting team leader. In response, Gessner sued Gulf Power Company under the private sector FWA, alleging that he was discharged in retaliation for objecting to certain practices “that were in violation of state and/or federal laws or that he reasonably and objectively believed were in said violation.” .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 6, .. 6th Cir.: Kizer v. St. Jude Children's Research Hosp .. In 2021, Lynn Kizer was employed by St. Jude Children’s Research Hospital as an Electronic Health Record (“EHR”) Applications Analyst assisting with preparations for the hospital’s two-year-long transition to a complex new EHR system known as “Epic.” That same year, a vaccine for COVID-19 became available. Because St. Jude primarily treats vulnerable pediatric patients, the hospital implemented a mandatory COVID vaccine policy for its employees and established a process for considering requests for religious and medical accommodations. Kizer submitted one such request, stating that her sincerely held religious beliefs prevented her from receiving the vaccine and asking for permission to work remotely. St. Jude gathered information about Kizer’s position, including about the upcoming launch (or “go live”) of the new Epic system and determined that it could not reasonably accommodate Kizer because her job required her to work in person in clinical areas and in contact with clinical people. St. Jude ultimately terminated Kizer for failing to become vaccinated. Kizer brought suit for religious discrimination and failure to accommodate under Title VII. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 6, .. 5th Cir.: Cocuzzo v. Trader Joe's .. Trader Joe's is a national chain of specialty grocery stores. Each Trader Joe's location is staffed by a "Captain," the manager in charge of the store; "Mates," assistant managers; "Crew Members," nonsupervisory staff; and sometimes "Merchants," specially designated members of the nonsupervisory staff. Ms. Cocuzzo began working as a Crew Member at the Trader Joe's store in Brookline, Massachusetts, in 2003, when she was roughly sixty years old. By all accounts, Cocuzzo was an exemplary employee, described by her supervisors in her annual performance reviews as "outstanding," "a role model," and "a true neighborhood icon." In 2012, when she was nearly seventy years old, Cocuzzo was promoted to the role of Merchant by the then-Captain of her store. Cocuzzo also received regular pay increases throughout her employment. Cocuzzo testified that Gillum, as Captain of the Brookline store, gave Cocuzzo her annual performance review in 2020 and that the review was positive. Additionally, Gillum approved a $1,200 performance bonus and a $1.00 per hour raise for Cocuzzo in August 2020, when Cocuzzo was seventy-seven years old. Cocuzzo's performance in 2018 and 2019 was also evaluated as "excellent." Trader Joe's terminated Ms. Cocuzzo's employment for violating. Ms. Cocuzzo's sued Trader Joe's for age discrimination. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 6, .. 5th Cir.: Lutz v. Mario Sinacola & Sons .. Defendant-Appellee Mario Sinacola & Sons Excavating, Inc. (“MSSE”) is a company involved in many aspects of the construction industry. Ms. Lutz began working for MSSE as an administrative assistant in 2012. She later requested that she no longer work in that position because of issues she had with her supervisor, Jeff Larson. In 2014, MSSE transferred Lutz to serve as an administrative assistant in its Fuel Oil and Grease (“FOG”) Division. Her new direct supervisor was Jose Ambriz. Before Lutz assumed the role, the administrative assistant position in the FOG Division did not exist. MSSE created the role by taking responsibilities from existing employees. After sustaining a severe injury to her right hip from a domestic violence incident, Ms. Lutz informed Ambriz and Tony Phillips, Vice President of Human Resources at MSSE, that she needed surgery for a full hip replacement and would need medical leave for a minimum of six weeks. Ms. Lutz applied for Family and Medical Leave Act (“FMLA”) leave and short-term disability benefits, which were approved by Cigna, MSSE’s insurer, from the date of her surgery, February 6, 2020, until March 18, 2020. On or about March 18, 2020, Lutz’s physician informed her that she would need to take an additional six weeks of leave because she was recovering slowly. Lutz submitted her request to Cigna, which then extended her FMLA coverage to April 29, 2020, but denied her any further short-term disability benefits. On April 14, 2020, he informed Ms Lutz that MSSE was eliminating her position because of a COVID-19 reduction in force, thereby discharging her. Ms. Lutz concedes that she was not fired for any performance-based reasons, but she contends that the only reason she was discharged was because she was on FMLA leave. Lutz filed suit against MSSE and Grimm, bringing FMLA interference claims against both of them. Lutz additionally raised Americans with Disabilities Act (ADA) and state law claims of disability discrimination and retaliation but only against MSSE. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 4, .. CAW Tuffley v. Employment Security Department .. Ms. Tuffley began working for Starbucks in 2019 as a senior manager in partner communications. Over the course of her employment, the scope of Ms. Tuffley’s work evolved. Ms. Tuffley’s job grew from brand campaigns, such as working on Starbucks 50th anniversary, to topics such as “diversity, mental health, and policy work.” Ms. Tuffley felt she lacked background and experience in these new areas of responsibility. She worked over 60 hours a week in an effort to meet the demands of her work, but her “mental health declined.” Ms. Tuffley advised her supervisor, Alisha Damodaran, about her struggles and Ms. Damodaran decided to place Ms. Tuffley on a performance improvement plan (PIP). According to Ms. Tuffley, Ms. Damodaran told her that another employee had been placed on a PIP and then was forced to leave the company. Ms. Tuffley came to believe Ms. Damodaran wanted to use the PIP as a “tool” to fire her. .. CONTINUED .. COURT DECISION: (.html)
♦
Dec 4,
.. DcDc
Howard v. Run Hope Work Inc
..
Mr.Howard, a black man, was hired as the Executive Director of Run Hope Work, Inc., on June 20, 2022.
Run Hope is a non-profit organization dedicated to improving the lives of at-risk D.C. youth through vocational training and personal wellness programs.
At all relevant times, Ms.Cairns and Mr. Newman were members of Run Hope’s Board of Directors.
When Howard was hired, Run Hope had “three employees on payroll at the time, including Howard.”
During his employment, Howard expanded the District of Columbia Department of Employment Services (“DOES”) and Department of Youth and Rehabilitative Services (“DYRS”).
Mr. Howard assumed the role of program manager for the DOES and DYRS grants.
He was compensated for his management responsibilities, in the amount of $5,000 per month from the DOES grant and $450 per month from the DYRS grant.
According to Howard, Cairns falsely accused him of not “having board approval to authorize payments to himself and Run Hope staff,” even though Newman had “authorized payroll with payments to Howard” under the grants.
On November 17, 2023, Newman and Cairns fired Howard.
According to Howard, prior to his termination, “certain Board members contacted him and told him that Newman and Cairns were trying to fire him,” and that “it was unlawful and racist and suggested that Mr. Howard hire counsel.”
Howard further alleges that Cairns was “demonizing him” in Board meetings,that she has been “instrumental in terminating . . . every Black male director Run Hope has ever had.
.. CONTINUED
..
COURT DECISION:
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♦ Dec 3, .. MCA: People Of Michigan v. McKerchie .. In September 2020, McKerchie was pursued by the police after he stole a vehicle. During the pursuit, he crashed into another vehicle, seriously injuring both the other driver and himself. Although McKerchie attempted to flee on foot, he was apprehended by the police. Because his spleen was ruptured in the crash, he underwent surgery to remove it. He was then housed in the Ingham County Jail awaiting trial on four felony charges arising from the incident. On November 12, 2020, McKerchie escaped from the jail and stole another vehicle. Although a taunting note that he left in his jail cell suggested that he was leaving the state, he was spotted driving yet another stolen vehicle in Eaton Rapids on November 21, 2020. Again, he crashed the vehicle he was driving while being pursued by the police. When he was arrested, he stated, “That old ass jail aint going to hold me. I’ll do it again, watch me.” He also kicked out the center barrier in the police vehicle and spat on the deputy. At the hospital, he threatened to assault and spit on hospital staff until he was sedated. Before trial, McKerchie filed a notice of his intent to present duress and necessity as defenses. He argued that the removal of his spleen left him particularly vulnerable to serious injury or death from “COVID-19” and that he particularly was at risk for contracting it in the jail. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 3, .. FLRA: VA v. AFGE .. Arbitrator Michelle Miller‑Kotula issued an award finding the Agency violated the parties’ collective‑bargaining agreement and an Agency handbook “when it failed to review [the grievants] for promotion” from General Schedule, Grade 9 (GS‑9) to GS‑11. The Arbitrator found the grievants performed GS‑11 duties more than 25% of the time, and, if they met the minimum qualifications for a GS‑11 position, then the Agency must “move forward” with compensating them at the GS‑11 rate. However, the Arbitrator also directed the parties to devise an appropriate remedy and update her about whether they had done so within 180 days. She retained jurisdiction in the event the parties could not devise a remedy. Both parties filed exceptions. The Agency argues the award is contrary to law because the grievance involves classification. .. CONTINUED .. FLRA DECISION: (.html)
♦ Dec 3, .. CAO: Rivera v. Perlo Construction .. Plaintiff is originally from Chile, and his primary language is Spanish. In Oregon, he worked as a laborer for Perlo, a construction company. On Perlo’s jobsite, the other employees repeatedly harassed plaintiff, improperly touched him, and attempted to intimidate him because of his nationality and limited English skills. When plaintiff reported those incidents to his supervisors and Perlo’s risk management director Wood, they dismissed his complaints. They concluded, without an adequate investigation, that either the conduct had not occurred or that the sort of harassment plaintiff reported was par for the course on construction sites. “As a result of the workplace harassment, mistreatment, assault, and discrimination [that plaintiff suffered at Perlo], plaintiff began experiencing emotional distress symptoms from his dormant PTSD.” Those symptoms led to plaintiff’s filing a workers’ compensation claim “indicating that he was suffering from PTSD” caused by the working conditions at Perlo. After SAIF denied plaintiff’s workers’ compensation claim, he brought this employment discrimination action against Perlo, Wood, and three other defendants. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 2, .. FLRA: IRS v. NTEU .. At a mid-year performance evaluation, the Agency notified an employee (the grievant) that she was not performing at an exceeds-expectations level in three critical job elements. The Agency provided some counseling and assistance before the end of the performance year, but the grievant’s final ratings in two critical job elements did not reach the exceeds‑expectations level. Thus, the Agency rated the grievant’s overall performance lower than the previous year. The Union grieved the performance rating, “alleging that the Agency failed to provide the grievant the counseling required by Article 12, Section 4.L of the parties’ collective‑bargaining agreement.” Arbitrator Ann R. Gosline sustained the grievance, finding the Agency did not provide timely assistance of the type specified in Article 12. As a remedy, the Arbitrator directed the Agency to raise the grievant’s rating and provide her with any associated compensation. The Agency filed exceptions to the award on the grounds that it failed to draw its essence from the parties’ agreement and was contrary to management’s rights under § 7106(a) of the Federal Service Labor‑Management Relations Statute (the Statute). The Authority determined that the award affected the management rights to direct employees and assign work under § 7106(a)(2)(A) and (B) of the Statute, respectively. Therefore, the Authority ended the CFPB inquiry, granted the management-rights exception, and set aside the award. On July 9, 2024, the Union filed a motion for reconsideration of IRS and a request for leave to file a supplemental submission concerning CFPB’s application to that case. .. CONTINUED .. FLRA DECISION: (.html)
♦ Nov 26 .. OCA: Seater v. KID .. Plaintiff was employed at Klamath Irrigation Dist (KID as a bookkeeper and office manager. Over a period of time, plaintiff raised numerous issues with management about the way KID was being run, including alleging that it was not complying with the KID Board policies and other laws, rules, and regula- tions. The complaints covered a range of topics, including the delivery of water to delinquent accountholders, prob- lems with the way employee time was being calculated, the improper execution of official documents, the collection or waiver of fees for another water district, balancing of the petty cash fund, noncompliance with procurement regulations, the implementation of new accounting software, and the comingling of distinct accounts. Over the same period, plaintiff was subjected to multiple adverse employment actions, including the alteration of her duties, formal reprimands, being placed on administrative leave, and ultimately being terminated. Following her termination, plaintiff filed an action for unlawful employment practices .. CONTINUED .. COURT DECISION: (.html)
♦ Nov 26 .. SCD: Sullivan v. Unemployment Insurance Appeal Board .. Appellant Elizabeth Sullivan appeals from the March 31, 2023 decision of the Unemployment Insurance Appeal Board (“UIAB”) holding that Sullivan had voluntarily resigned from her employment with the United States Postal Service (“USPS”) without good cause in connection with her work, and was disqualified from receiving unemployment benefits. All parties were sent notice of the Court’s briefing schedule. USPS also was notified that, as an artificial entity, it must be represented by counsel. Sullivan filed her opening brief as directed.4 Counsel for UIAB wrote to the Court advising it that it would not be filing an answering brief because Sullivan was challenging the UIAB’s decision on the merits and the UIAB did not have an interest in seeking to have its decision affirmed on appeal. USPS failed to file an answering brief despite the Court issuing it a “Final Delinquent Brief Notice” on May 30, 2024. Accordingly, notwithstanding the possible merits of USPS’s position, this Court reverses the determination of the UIAB due to USPS’s failure to respond. .. CONTINUED .. COURT DECISION: (.html)
♦ Nov 26 .. ICA WV: Baldwin v. WorkForce West Virginia .. In April of 2020, Ms. Baldwin was employed by Alliance Healthcare Services, Inc. (“Alliance”). On April 17, 2020, Ms. Baldwin filed a weekly application for unemployment compensation benefits for the week ending on April 11, 2020. Ms. Baldwin’s online portal application indicates she was not working, and that she did not receive wages that week. She filed a similar application on April 27, 2020, for the week ending on April 18, 2020. Ms. Baldwin again indicated on the online portal form that she did not work or receive wages that week. On May 11, 2020, Ms. Baldwin filed a third application for unemployment compensation benefits for the week ending on May 9, 2020. According to the May 11, 2020, online portal application, she received $451.20 in earnings for twenty-four hours of work during the week. Ms. Baldwin does not dispute that she was paid unemployment compensation benefits for those three weeks. On December 18, 2020, Alliance completed a “Claims Audit Form” at the request of WorkForce. On the audit form, Alliance reported that for the week ending on April 11, 2020, Ms. Baldwin worked 34.66 hours and received $745.61 in gross wages; that for the week ending on April 18, 2020, Ms. Baldwin worked 29.16 hours and received $547.38 in gross wages; and that for the week ending on May 9, 2020, Ms. Baldwin worked 24.36 hours and received $457.97 in gross wages. Based on the discrepancy between Ms. Baldwin’s application for unemployment compensation benefits and the wages reported by Alliance, WorkForce determined Ms. Baldwin was overpaid unemployment compensation benefits. On August 9, 2023, WorkForce notified Ms. Baldwin of her obligation to repay the overpaid benefits. According to the notice, WorkForce determined that Ms. Baldwin was overpaid $2,054.00 for the weeks ending on April 11, 2020, April 18, 2020, and May 9, 2020. Ms. Baldwin appealed the overpayment determination. .. CONTINUED .. COURT DECISION: (.html)
♦ Nov 25, .. FLRA: AFGE v. SSA .. The Agency administers three Social Security Act programs, and supports other agencies to administer various programs under other laws. The Union represents employees who assist the public – and handle submissions or claims – in connection with those programs. For many years, the field offices where these employees work were closed to the public on Wednesday afternoons from noon to 4:00 p.m., although employees in those offices continued working during that time. Beginning in January 2020, the Agency made a change that required field offices to remain open to the public on Wednesday afternoons (changed hours). The parties bargained over proposals related to the changed hours. During bargaining, the Union expressed concern about the effects that the changed hours would have on “adjudication time,” which – as further defined later in this decision – is time when employees address and process their workloads, lists, and backlogs. The Union proposed that the Agency guarantee employees daily and weekly minimum amounts of adjudication time under specific conditions. The Agency alleged the proposal was outside the duty to bargain, and the Union filed the petition. The Agency argues some of the Union’s filings are untimely. The Union disputes these arguments. Further, the Agency argues the Union failed to properly serve the petition on the Agency head, so the petition should be dismissed. .. CONTINUED .. FLRA DECISION: (.html)
♦ Nov 25, .. FLRA: ARMY v. AFGE .. In January 2017, the Union was certified as the exclusive representative of a unit which includes the civilian employees who work in the Activity’s fire department as firefighters, fire officers, and fire inspectors. In December 2023, the Petitioner filed a petition seeking an election to determine whether the firefighters no longer wanted the Union to represent them. The Petitioner asserted that the Union failed to adequately represent the fire‑department employees. To support this assertion, the Petitioner claimed the Union failed to address safety concerns particular to department firefighters, failed to pursue two firefighter grievances, and agreed to contract language making firefighter performance standards “difficult to grieve.” Additionally, the Petitioner alleged that the Union ignored firefighter concerns regarding three “national and global events” that affected firefighters’ working conditions. The Petitioner also asserted that the current Union president “tends to align himself with management” and that AFGE national representatives do not visit the fire station frequently enough. .. CONTINUED .. FLRA DECISION: (.html)
♦ Nov 22, .. FLRA: AFGE v. VA .. The Union filed a Step 3 grievance alleging the Agency wrongfully failed or refused to process employees’ dues deductions. The Agency responded by providing potential dates and times for a grievance meeting. The Union did not respond, the parties did not schedule or conduct a grievance meeting, and the Agency did not provide the Union with a written response to the grievance. The Union invoked arbitration. At arbitration, the Agency filed a motion to dismiss the grievance, arguing the Union failed to participate in a Step 3 grievance meeting as the parties’ collective‑bargaining agreement requires. In response, the Union alleged the Agency’s argument was untimely because the parties’ agreement requires parties to raise procedural-arbitrability claims no later than the Step 3 grievance decision, and the Agency failed to do so. .. CONTINUED .. FLRA DECISION: (.html)
♦ Nov 22 .. DcDc: Anderson v. Bdo USA .. Mr. Anderson joined BDO’s predecessor firm as a partner in 2007. In that role, he was responsible for applying his expertise to “domestic corporate tax, mergers & acquisitions, bankruptcy and troubled debt restructuring, leasing, and general federal income tax issues” to aid the BDO National Tax Office’s expansion efforts. Throughout his time at the firm, BDO’s leadership praised Anderson for his reliability, attention to detail, and improvements in the quality and scope of BDO’s client services. Plaintiff served as a BDO partner until June 30, 2019, when he turned 65 and reached the firm’s mandatory retirement age for fixed-share partners. After his retirement as a partner, he continued working for BDO as a “Managing Director for the National Tax Office.” Anderson’s work in that role entailed the same duties and the same pay; further, “he continued to be held in high regard by everyone with whom he worked.” Plaintiff’s story took a quick turn after he turned 70 on September 21, 2023. Six weeks later, he was summoned to a meeting with leadership from BDO’s National Tax Office, where he was informed that he could continue working at BDO only if he agreed to certain conditions: he would be compensated on an hourly basis capped at 20 hours per week; nonbillable hours required advance approval from firm leadership; administrative time would be capped at two hours per week; BDO would not contribute to health or retirement benefits; and Anderson could receive neither holiday pay nor paid leave. In essence, Plaintiff was relegated to part-time work with reduced compensation and benefits. BDO proposed these changes without any explanation and despite a lack of decline in Anderson’s work performance. Plaintiff further alleges that “[n]o other employee was given such an ‘offer.’” Anderson attempted to propose a different arrangement with BDO, but the firm declined to participate in any further negotiations. When he rejected its offer, BDO terminated his employment on December 11, 2023, with an effective date of January 1, 2024. .. CONTINUED .. COURT DECISION: (.html)
♦ Nov 20 .. CCA: Wawrzenski v. United Airlines .. Alexa Wawrzenski was a flight attendant employed by United Airlines, Inc. United investigated and ultimately fired her for having a social media account featuring pictures of herself in uniform and wearing a bikini, with a link to a subscription- based account advertised as providing “exclusive private content you won’t see anywhere else.” Wawrzenski sued United, alleging that she endured years of gender discrimination and harassment, that United retaliated against her for complaining about the discrimination and harassment by terminating her employment, that United’s investigation into her social media and her termination discriminated against her as a woman, that United failed to prevent its employees’ misconduct, and that United intentionally caused Wawrzenski emotional distress. .. CONTINUED .. COURT DECISION: (.html)
♦ Nov 20, .. 5th Cir.: Ayorinde v. Team Industrial .. Team Industrial (Team) initially employed Ayorinde from 2016 to 2018, at which time Team terminated Ayorinde. Although Team had designated Ayorinde as ineligible for rehire due to “job abandonment,” Kevin Jarrett, a Team District Manager, received approval to rehire Ayorinde in April 2022 as a Level II Technician at an hourly rate of $32. According to Team’s records, Ayorinde’s supervisor Israel Ortega expressed concerns about the quality of Ayorinde’s welds, his failure of a necessary practical exam, his compliance with safety protocols, and his professionalism. Ortega reportedly spoke with Ayorinde about his concerns and told Ayorinde that he would be demoted to an assistant role for a one- month training period, during which time his pay would be cut from $32 per hour to $24 per hour. Nonetheless, Ayorinde resigned from Team shortly thereafter. In a resignation letter dated August 20, 2022, Ayorinde asserted that he was leaving Team due to a hostile work environment and discrimination, as evidenced by the pay cut, a supervisor’s delay in readministering his practical exam, and Ortega’s failure to schedule Ayorinde for any work after his return from Africa. One month later, Ayorinde filed a Charge of Discrimination with the United States Equal Employment Opportunity Commission, then filed an Amended Charge of Discrimination two weeks thereafter. .. CONTINUED .. COURT DECISION: (.html)
♦ Nov 20 .. 5th Cir.: Serrano Colon v. Dep't of Homeland Security .. Ms. Colon ("Serrano") claims in this employment discrimination action that she was terminated from her position as a Transportation Security Officer ("TSO") because of her disability, gender, and parental status. She further alleges retaliation based on her filing complaints with the Equal Employment Opportunity Commission ("EEOC"). Her former employer, the Transportation Security Administration ("TSA"), attributes her firing to Serrano's years of erratic attendance, including dozens of tardies and unscheduled absences, and her failure to improve despite receiving several letters warning of possible consequences if her attendance problems persisted. .. CONTINUED .. COURT DECISION: (.html)
♦ Nov 18, .. 2nd Cir.: Back v. Bank Hapoalim .. According to the complaint, Ms Back was transferred out of her position at Bank Hapoalim (BHI) for filing a written complaint in December 2021 pursuant to BHI’s Whistleblower Policy, complaining that CEO Karni came to work while suffering from COVID-19 and triggered a COVID-19 outbreak at BHI, with about 30 employees (including Back) testing positive for the virus. Ms. Back alleges that at least five male executives similarly complained about Karni’s behavior and BHI’s lack of a proper response to the COVID-19 outbreak but were not disciplined. Her complaint further alleges other instances in which Karni treated Back differently than her male colleagues as part of a “bank-wide culture of misogyny and impunity.” .. CONTINUED .. COURT DECISION: (.html)
♦ Nov 18, .. SCP: Com (Pennsylvania ) v. Royer .. Ms. Royer and her administrative supervisor, Mr. Emhoff (“Emhoff”), worked at the Pennsylvania Department of Transportation (“PennDOT”) office in Punxsutawney, Jefferson County. On June 8, 2022, Ms. Royer received a written notice of a pre-disciplinary conference (“PDC”) regarding a separate workplace issue. Royer became angry about the notice. After Mr. Emhoff and her immediate supervisor, Matt Gaston, made several attempts to communicate with Royer inside the building as well as in her car, she left work that day, resulting in her suspension from her employment at PennDOT. Later that same day, Royer began sending unwanted and alarming texts to Mr. Emhoff. That evening, Emhoff notified the local police about the texts from Royer. Royer continued to text Emhoff, and the local police urged him to contact the Pennsylvania State Police due to concerns for his safety because of the number and content of the text messages. The next day, Emhoff spoke with Pennsylvania State Trooper Alexis Stitt (“Trooper Stitt”) about the prior incident at PennDOT, and the unwanted texts from Royer. On that day, Trooper Stitt spoke with Royer by telephone and told her to have no contact at all with Emhoff. The following day, Royer sent additional text messages as well as four separate emails to Emhoff. At the conclusion of trial, the jury convicted Ms. Royer of ten counts of harassment graded as third-degree misdemeanors. The trial court scheduled a sentencing hearing and ordered a pre-sentence investigation (“PSI”) report. After reviewing the PSI report, which recommended consecutive sentences, the trial court imposed a term of two months to four months’ imprisonment for each of the ten counts of harassment, to run consecutively. In sum, the trial court imposed a sentence of twenty to forty months’ incarceration and ordered Royer to serve it in a state correctional facility. Here, Ms. Royer appeals her sentence. .. CONTINUED .. COURT DECISION: (.html)
♦ Nov 18, .. CAV: Ingleside Emergency Group v. Hollis, M.D. .. Dr. Hollis is an emergency medicine physician. In July 2020, Dr. Hollis’s professional corporation entered into two provider agreements with IEG and KEG, respectively, to provide emergency medical services at two Virginia hospitals within the HCA Healthcare (“HCA”) network. In her complaint, Dr. Hollis alleged that she was “repeatedly directed” “to upcharge her services as ‘critical care’ even when she was not provi[ding] critical care services as defined in the medical coding.” Dr. Hollis believed this was “an effort by Defendants to generate fraudulent income through overbilling of government programs such as Medicare and Medicaid.” Dr. Hollis “repeatedly refused to illegally upcharge services and reported to management of Defendants in 2020 and early 2021 that she would not improperly upcharge patient care as ‘critical care.’” Dr. Hollis also “complained in emails and verbally to management of Defendants that Defendants had intentionally mismanaged federal [COVID-19 relief] funds intended for Physicians” such as Dr. Hollis. After being terminated from her position as an emergency medicine physician, Dr. Michelle Hollis sued alleging that Ingleside terminated her in violation of the Virginia Whistleblower Protection Act (“VWPA”), Code .. CONTINUED .. COURT DECISION: (.html)
♦ Nov 13, .. TWCAB: Hicks v. Fullen Dock and Warehouse .. Mr. Hicks (“Employee”) was working for Fullen Dock and Warehouse, LLC (“Employer”) on June 21, 2022, when he fell while attempting to connect hooks to cargo that needed to be lifted off of the boat. After the fall, a coworker took him directly to Methodist University Hospital, where he reported falling approximately 6 feet, with no loss of consciousness, and feeling pain in his neck, back, and shoulders. Employee underwent a CT scan of the head, cervical spine, and lumbar spine, all of which were read as normal. He was diagnosed with a back contusion and a scalp hematoma and was given instructions to rest, take Tylenol as needed for pain, and to follow up with his primary care provider in the next two days. Employee returned to work two days later, but for reasons that are unclear in the record, no initial injury report was completed until July 27, 2022. Employer accepted the claim under the Longshore and Harbor Workers’ Compensation Act, which allows the employee to name a preference for a treating physician. Employee indicated he had no preference, and as such, Employer scheduled an appointment with Dr. Christopher Pokabla, an orthopedic specialist. Meanwhile, on August 4, 2022, Employee sought medical treatment on his own with Dr. Mohamad Moughrabieh for complaints of pain in his left shoulder and neck. Dr. Moughrabieh’s records reflect that Employee reported falling approximately twenty feet at work. He also reported suffering a loss of consciousness at the time of the fall. Dr. Moughrabieh prescribed a steroid and an anti-inflammatory and also gave Employee injections in his left arm and left hip. He instructed Employee to follow up as needed. Employee also went on his own to a “Minor Medical Center” at Methodist Healthcare on August 15, 2022, where he saw a nurse practitioner for pain in his left shoulder and neck. The nurse practitioner obtained X-rays of Employee’s neck and left shoulder, which were normal, and she prescribed a muscle relaxer and Ibuprofen. The week after that appointment, on August 22, 2022, Employer terminated Employee for excessive absences and tardiness. .. CONTINUED .. COURT DECISION: (.html)
♦ Nov 13, .. ICA WV: Bradley v. Ohio County Board of Education .. From October of 2004 to January of 2010, Ms. Bradley worked various roles as part-time employee for the OCBOE. Beginning in January of 2010 to May of 2010, Ms. Bradley served as a Title I Math Substitute at Middle Creek Elementary School and worked as a professional for the 2010 Extended School Year Program Elementary/Middle School Component from July 2, 2010, through August 2, 2010. On August 9, 2010, the OCBOE approved Ms. Bradley's appointment for the 2010-2011 school year as a First Year 205- Day Countywide Technology Integration/Library Media Specialist assigned to Warwood School. Ms. Bradley served as the Countywide Technology Integration/Library Media Specialist until May 2013. In August of 2013, Ms. Bradley was appointed as a 200-Day Fourth Grade Teacher at Middle Creek Elementary School. Ms. Bradley served as a 200- Day Fourth Grade Teacher until her retirement on October 15, 2019. In 2017, Ms. Lewis began serving as principal at Middle Creek Elementary School. According to Ms. Bradley’s Complaint, on numerous occasions, Ms. Lewis called Ms. Bradley into her office to "scold" her for occurrences that Ms. Bradley believed did not warrant principal intervention. Ms. Bradley also alleges that other, younger, teachers complained about her to Ms. Lewis regarding minor classroom issues. On one occasion, Ms. Lewis allegedly angrily reprimanded Ms. Bradley in her classroom, in front of her students and colleagues, because one of Ms. Bradley's students did not hear their bus announcement and missed their bus. Ms. Lewis allegedly did not treat the other Fourth Grade Teacher, who is substantially younger than Ms. Bradley, in this manner. .. CONTINUED .. COURT DECISION: (.html)
♦ Nov 12, .. DSC: Sullivan v. Unemployment Insurance Appeal Board .. Appellant Ms. Sullivan appeals from the March 31, 2023 decision of the Unemployment Insurance Appeal Board (“UIAB”) holding that Sullivan had voluntarily resigned from her employment with the United States Postal Service (“USPS”) without good cause in connection with her work, and was disqualified from receiving unemployment benefits. All parties were sent notice of the Court’s briefing schedule. USPS also was notified that, as an artificial entity, it must be represented by counsel. Sullivan filed her opening brief as directed.4 Counsel for UIAB wrote to the Court advising it that it would not be filing an answering brief because Sullivan was challenging the UIAB’s decision on the merits and the UIAB did not have an interest in seeking to have its decision affirmed on appeal. USPS failed to file an answering brief despite the Court issuing it a “Final Delinquent Brief Notice” on May 30, 2024. This failure is consistent with USPS’s failure to appear before the UIAB to defend against Sullivan’s appeal from the decision of the Appeals Referee, despite receiving notice of that hearing. Accordingly, notwithstanding the possible merits of USPS’s position, this Court reverses the determination of the UIAB due to USPS’s failure to respond in violation of Superior Court Civil Rule 107. .. CONTINUED .. COURT DECISION: (.html)
♦ Nov 12, .. FLRA: ARMY v. ACT (union) .. The grievant is a dual-status federal civilian technician under 32 U.S.C. § 709, and, as such, is a member of the National Guard as a condition of his civilian employment. The grievant received orders to “active duty for operational support-reserve component (ADOS‑RC)” effective December 15, 2018, through September 30, 2019, under the authority of 10 U.S.C. § 12301(d). Upon completion of this duty, the grievant requested accrued military leave under 5 U.S.C. § 6323. When the Agency denied the request, the Union filed a grievance alleging the Agency violated the parties’ agreement. The Agency denied the grievance, stating that a technician “on ADOS or ADR [active-duty-reserve] orders of 180 days or more” is ineligible to use accrued military leave under § 6323 because 32 U.S.C. § 709 makes such leave “inapplicable to . . . a National Guard technician . . . who is performing active guard and reserve duty” (AG&R duty) as defined in 10 U.S.C. § 101(d)(6). Arbitrator John Remington issued an award finding the Agency violated the parties’ agreement when it denied the grievant the use of accrued military leave. The Agency argues on exceptions that the award is: (1) incomplete, ambiguous, or contradictory, so as to make implementation of the award impossible; and (2) contrary to law. .. CONTINUED .. FLRA DECISION: (.html)
♦ Nov 8, .. FLRA: NTEU (union) v. Homeland .. Arbitrator Richard Fincher issued an award finding that the Agency did not violate the law, the parties’ national collective‑bargaining agreement (national agreement), or a local memorandum of understanding (MOU) by changing the availability of a particular compressed work schedule, without first notifying and bargaining with the Union. The Arbitrator recognized that the Agency reduced the number of employees who could work a 4/10 schedule – consisting of four ten‑hour workdays each week. However, the Arbitrator also determined that there was no obligation to notify or bargain with the Union because the parties already bargained over the matter, and the Agency did not terminate 4/10 schedules completely. The Union has filed exceptions arguing that: (1) the Arbitrator exceeded his authority by failing to resolve an unfair‑labor‑practice (ULP) issue; (2) the award is contrary to § 7116(a)(5) of the Federal Service Labor‑Management Relations Statute (the Statute),[1] §§ 6130 and 6131 of the Federal Employees Flexible and Compressed Work Schedules Act (the Work Schedules Act), and the covered‑by doctrine; and (3) the award fails to draw its essence from the national agreement and MOU. .. CONTINUED .. FLRA DECISION: (.html)
♦ Oct 25, .. FLRA: IFP & TE v. NAVY .. The overarching context of the parties’ dispute is their longstanding disagreement regarding the location of the Agency’s Portsmouth Naval Shipyard facility: the Agency asserts the facility is in Maine, whereas the Union asserts the facility is in New Hampshire. However, their negotiability dispute concerns the narrower question of the official duty station of a newly‑established architect position. The Agency assigned the architect position to its Portsmouth Naval Shipyard facility, and designated the position’s official duty station as Kittery, Maine. During negotiations over the architect position, the Union submitted the proposal at issue, which would designate Portsmouth, New Hampshire, as the position’s official duty station. After receiving the proposal, the Agency provided the Union with an unsolicited written allegation of nonnegotiability. On August 10, 2023, the Union filed its petition with the Authority. Subsequently, the Agency filed its statement of position (statement). The Union filed its response on October 17, and the Agency filed a reply to the response on November 1. Pursuant to § 2424.23 of the Authority’s Regulations, an Authority representative conducted a post‑petition conference (conference) with the parties and issued a written record of that conference. .. CONTINUED .. FLRA DECISION: (.html)
♦ Oct 21, .. FLRA: SPORT (union) v. Air Force .. After the parties began bargaining over ground rules for negotiating a successor agreement to their 1994 collective-bargaining agreement (the 1994 CBA), the Agency filed an unfair-labor-practice (ULP) charge, alleging the Union unlawfully refused to recognize the Agency’s designated bargaining representatives, and notified the Union that it planned to unilaterally implement its last, best proposal as the parties’ new CBA. The Union filed a ULP charge, alleging the Agency’s notification was a failure to bargain in good faith. An Administrative Law Judge found the Union acted unlawfully as the Agency had alleged, and the Agency implemented its last, best proposal – a document that the Authority referred to in SPORT, and which we mostly refer to here, as “the 2017 CBA.” The Union amended its ULP charge to allege the unilateral implementation of the 2017 CBA was unlawful, but later withdrew that charge. The Union continued to challenge the 2017 CBA’s validity by filing numerous ULP charges, grievances, and appeals, which were all denied or withdrawn. In 2020, the Agency notified the Union that it planned to impose a new agreement to replace the 2017 CBA. The Union filed a new ULP charge in Case No. SF-CA-21-0002, alleging the 1994 CBA was still in effect and the Agency was refusing to comply with it. .. CONTINUED .. FLRA DECISION: (.html)
♦ Oct 18, .. FLRA: AFGE v. VA .. The Department of Veteans Affairs (Agency} operates clinical contact centers that assist veterans in obtaining healthcare services. In 2021, the Agency initiated a reorganization that, in pertinent part, consolidated three clinical contact centers operating within the Black Hills, Minneapolis, and Nebraska‑Western Iowa Health Care Systems, respectively. In conducting the reorganization, the Agency transferred employees to the consolidated clinical contact center (consolidated center), but did not change the location of affected employees’ official duty stations. Arbitrator Joyce M. Klein issued an award finding the Agency violated the Federal Service Labor‑Management Relations Statute by failing to bargain with the Union over changes to employee awards resulting from the Agency’s reorganization. As remedies, the Arbitrator directed prospective bargaining and issued a cease‑and‑desist order. The Union filed an exception arguing the award is contrary to law because the Arbitrator failed to award additional remedies. .. CONTINUED .. FLRA DECISION: (.html)
♦ Oct 16, .. FLRA: U.S. Marine Corps v. AFGE .. The Arbitrator issued an award finding the U.S. Marine Corps violated the parties’ collective‑bargaining agreement, the Fair Labor Standards Act (FLSA)[...] by failing to properly compensate certain employees (the grievants) for overtime. As remedies, the Arbitrator awarded the grievants backpay with interest for unpaid overtime. The Agency filed exceptions to the award on essence, exceeded‑authority, and contrary‑to-law grounds. .. CONTINUED .. FLRA DECISION: (.html)
♦ Oct 11, .. FLRA: Justice (Prisons) v. Council of Prison Locals #33 .. The grievant is a correctional officer. One of the grievant’s supervisors (the captain) reported alleged misconduct to the facility’s warden. Specifically, the captain reported that the grievant failed to perform inmate rounds and fraudulently recorded performing rounds in a log book. The Agency issued the grievant a memorandum on February 25, 2020,[1] notifying him he would be temporarily reassigned to a phone‑monitor position (February reassignment) “pending resolution of the disciplinary process.” While reassigned, the Agency issued the grievant another memorandum on May 13 notifying him he would be temporarily reassigned to another phone-monitor position (May reassignment) “pending resolution of the disciplinary process.” Both memoranda indicated that the grievant was prohibited from working overtime during the reassignments. On July 6, the Agency temporarily reassigned the grievant to a laundry and food service position (July reassignment), and on August 10, the Agency reassigned the grievant back to a phone-monitor position (August reassignment). The Agency did not issue accompanying memoranda regarding the July and August reassignments. On October 8, the Union filed a grievance alleging the Agency violated the parties’ collective-bargaining agreement by erroneously reassigning the grievant and denying him the opportunity to work overtime assignments. .. CONTINUED .. FLRA DECISION: (.html)
♦ Oct 2, .. FLRA: Justice (Prisons) v. AFGE .. The Federal Labor Relations Authority’s (FLRA’s) General Counsel (GC) issued a complaint alleging the Respondent violated [...] the Federal Service Labor‑Management Relations Statute (the Statute) by unreasonably delaying its response to a Charging Party request for information. When the Respondent did not timely file an answer to the complaint, the GC moved for summary judgment. In the attached decision, an FLRA Administrative Law Judge (Judge) found that, under § 2423.20(b) of the Authority’s Regulations, the Respondent admitted to the complaint’s allegations by filing an untimely answer. Consequently, the Judge granted the GC’s motion. On July 1, 2024, the Respondent filed an exception to the Judge’s decision, and on July 17, 2024, the GC filed an opposition to the exception. .. CONTINUED .. FLRA DECISION: (.html)
♦ Oct 2, .. FLRA: Justice (Prisons) v. AFGE .. The Agency hired the grievants as teachers in the education department of its correctional facility. On June 8, 2023, the Union filed a grievance alleging the Agency violated the parties’ agreement and the FLSA by failing to properly pay the grievants. The matter proceeded to arbitration. The Union argued that “during the relevant recovery period from June 8, 2020, through June 2023,” when the grievants worked overtime, the Agency improperly paid them at less than the overtime rate required by the FLSA. .. CONTINUED .. FLRA DECISION: (.html)
