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♦ Jun 10, .. State of New Jersey v. Formisano .. Police Officer Formisano, a Newark police officer for twenty-four years. He lived at 1 Mirror Place in Oak Ridge with his wife Christie and their two children, a son and daughter. By July 2019, Officer Formisano, was not living at 1 Mirror Place and was instead living with his mother in Livingston because he and his wife, Christie were having some issues.
Around June or July 2019, Mr. Simonson testified he met Christie through an online dating site. Simonson began messaging Christie on the dating site and they eventually exchanged text messages. He and Christie met in person approximately two weeks after they first started communicating. When he met Christie, she informed him she was divorced. Simonson eventually met Christie's children and indicated he had been to Christie's house a few times to "hang out." Simonson testified Christie's relationship with defendant did not have any impact on his ability to see Christie, and he had never met defendant before the incident.
On Sunday, July 14, 2019, Simonson "went over to visit" Christie around 9:00 p.m. He drove his grandmother's car, a white Ford Fusion, to her house. At Christie's instruction, he did not park in the driveway or in front of the house because of her "nosey neighbors" and arrived around 9:30 p.m. While the children were asleep and Simonson and Christie were playing a board game, Christie took a phone call in the kitchen which lasted approximately two or three minutes.
Later in the evening Simonson and Christie went to the bedroom and "had sex."
Later that night, Christie said she "saw something out the window" that "looked like a flashlight." Christie looked out the bedroom window and "said he's here, it's him."
Simonson "put his shirt on" and Christie "put on a robe and went out the bedroom door." Christie closed the bedroom door behind her.
Seconds after Christie left the bedroom, Simonson heard her yell in a scared tone, "he's got a gun, call 911."
Simonson "kind of froze for a second," and then he heard three gunshots from "just outside the bedroom." .. CONTINUED .. COURT DECISION: (.html)
♦ Jun 3, .. CAT: Schoonewolff v. Choate-Tuffy-Hushpuppies .. Mr Schoonewolff sued his employer, Choate-Tuffy-Hushpuppies (collectively, “Appellees”) for violating the Fair Labor Standards Act (“FLSA”). He sought $239,041.16 for three years of back pay and overtime, attorney’s fees, and costs. Choate owned several restaurants over the years, including Tuffy’s and Hushpuppies. Schoonewolff began working for Choate in 1999. Schoonewolff alleges that from 2016 through early 2019, Choate violated the FLSA by failing to pay him overtime. In 2016 and 2017, Schoonewolff worked for Hushpuppies, which was in Port Arthur, and in 2017, he began working for Tuffy’s in Mauriceville. His duties were the same at Tuffy’s and Hushpuppies. Both Tuffy’s and Hushpuppies had separate divisions, a restaurant division and a catering division. The restaurant division served customers “home cooked” meals in the restaurant, whereas the catering division handled “pre-cooked” foods that simply needed to be prepared and were typically delivered to local refineries. During the relevant timeframe, Schoonewolff was a salaried employee. Appellees contend that he ran the catering division and was an exempt employee, so he was not entitled to overtime pay. At trial, Appellees witnesses disputed that Schoonewolff worked the hours he claimed during the relevant period and that he was improperly compensated. Schoonewolff disputes that he is an exempt employee, and asserts he worked overtime from 2016 through early 2019, when he quit, for which Appellees failed to pay him overtime. Thus, he contends that Appellees violated the FLSA. .. CONTINUED .. COURT DECISION: (.html)
♦ Jun 3, .. 8th Cir.: Huber v. Westar Foods .. Westar Foods runs Hardee’s restaurants across Nebraska and Iowa. Ms. Huber managed one, which meant a full-time schedule that often involved beginning her shift at 5 a.m. and opening the restaurant an hour later. Ms. Huber had trouble following Westar’s attendance policy, specifically the requirement that late or absent employees “call the management person in charge immediately.” Her first violation involved leaving a shift without notifying her district manager. A few months later, she violated it twice more by missing a shift without notice and leaving another without “call[ing] . . . and speak[ing] directly” to her supervisor. At that point, Westar informed her that any “further unscheduled or unexcused absences” risked “further disciplinary action, up to and including termination.” Ms. Huber was also experiencing health difficulties. About two months into the job, she received a diabetes diagnosis, which required her to take insulin at work and eat meals during her shifts. According to Huber, her supervisors provided no help. One said that finding a room-temperature location to store her insulin was a “[you] problem, not a [me] problem.” Another, Cindy Kelchen, suggested she put it in a cooler. Later, when Huber struggled to find time to eat, Kelchen told her to get better at time management. Diabetes also caused her to miss work. As relevant here, she woke up one morning feeling “out of it” and “in a complete fog,” with a blood-sugar level “in the low 60s.” She did not “know . . . who she was, what she was, or where help was.” She drove herself to a nearby clinic, where a doctor placed her on an IV for the rest of the day. She made several calls to her boyfriend and son, but she does not remember any of them. They recalled her being “all over the place” and “very groggy, out of it.” Meanwhile, the Hardee’s opened more than five hours late because she never notified anyone that she would be absent. Westar only found out when a customer called to complain that the restaurant was closed, which set off a flurry of activity. Kelchen eventually reached Huber’s son, who explained that she was at the hospital because “her levels were off.” Until then, no one at Westar had any idea she was ill. Huber did not call until the next day, several hours after her next 5 a.m. shift was set to start. During the call, Huber told Kelchen what had happened and informed her that she needed to take sick leave. Huber did not remember the conversation clearly because she was still groggy, but her boyfriend, who had been sleeping in an adjacent room, did. According to him, Kelchen was “screaming” at her. Kelchen’s notes say that Huber had been at the doctor because “her levels of her diabetic w[ere] off.” They also mention she had been “too drugged out [to call], couldn’t concentrate, and . . . would contact [Kelchen] later.” When Kelchen reminded Huber about “needing to make that simple phone call,” she responded that she was “out of it” and “not making sense” because of “a serious medical happening.” She pointed to a doctor’s note she had just sent. When Kelchen asked Huber why she could drive to the doctor on her own, yet not “call at all” despite knowing she had to open both days, she had no response. About thirty minutes after the call, Westar’s president decided to fire her. Westar Foods, Inc. fired her for failing to notify a supervisor. Before she found out about Westar’s decision, Huber tried to request FMLA leave for the days she missed. To her surprise, not only did Westar deny it for “fail[ing] to provide notice” of her request “as soon as possible and practical,” but she had lost her job for once again “fail[ing] to follow [Westar’s] notice procedures.” Based on these events, Huber filed this lawsuit alleging interference and retaliation under the FMLA and disability discrimination under the Americans with Disabilities Act and the Nebraska Fair Employment Practice Act. On cross-motions for summary judgment, the district court granted Westar’s, which ended Huber’s case. Employees can be terminated while on leave if “the employer would have discharged” them anyway. But not when the termination is “connected with their FMLA leave.” .. CONTINUED .. COURT DECISION: (.html)
♦ Jun 2, .. NYSC NYC.: Winfrey v. City of New York .. Plaintiff, a former corrections officer employed by DOC, commenced this action seeking relief under Article I, §6 of the New York Constitution, the NYSHRL, and the NYCHRL. Plaintiff alleges she was wrongfully terminated on May 13, 2022, following an administrative hearing before the Office of Administrative Trials and Hearings (“OATH”), where she was found to have consumed alcohol while on duty on June 14, 2019. According to the complaint, Plaintiff and three other correction officers were accused of consuming alcohol while on duty at the Manhattan Detention Complex. Plaintiff submitted to a breathalyzer test four hours after the alleged incident, which returned negative results. Despite this, and although the Administrative Law Judge (“ALJ”) recommended a fifty-day suspension, the DOC Commissioner rejected the recommendation and terminated Plaintiff’s employment. Plaintiff contends that her termination was unlawful, arguing the allegations were false and motivated by discriminatory animus. She further alleges that the factual findings at the OATH hearing were flawed and pretextual. .. CONTINUED .. COURT DECISION: (.html)
♦ Jun 2, .. 5th Cir.: National Labor Relations Board v. AllService Plumbing and Maintenance .. AllService Plumbing and Maintenance, Inc. (“AllService”) is a small, family-owned plumbing company in Baton Rouge, Louisiana. In 2009, an organizer named Mr. LeBlanc began a drive to unionize AllService’s workforce. LeBlanc visited two AllService jobsites, spoke with AllService employees about the union, and distributed various materials to promote unionization. One employee, Mr. Lungrin, voiced opposition to the organizing effort. He called Luke Hall, AllService’s Vice President, and notified him about LeBlanc’s activities. Lungrin allegedly expressed concern that the company might close if its employees unionized. About a month later, the union filed a certification-of-representative petition with the National Labor Relations Board (“NLRB” or “Board”). The union sought to hold an election among AllService’s “plumbers, plumbers helpers, and apprentice plumbers.” ROA.328. 1 AllService and the union agreed on an election date. After that agreement, AllService laid off three plumbing employees. Then, a week before the election, the union held an organizing meeting at a Hooters restaurant in Baton Rouge. Lungrin attended that meeting. So too did LeBlanc, who had met with several AllService employees, including some of those who had been laid off. After the Hooters meeting, LeBlanc went to the AllService office to distribute more organizing materials. The day before the election, Lungrin again opposed LeBlanc’s efforts. On election day, the union lost. After the election, Lungrin celebrated the union’s defeat in front of other AllService employees. Lungrin also told Vice President Hall that someone had come into the AllService facility and taken photos of company bulletin boards for later use by the union. According to another AllService employee, Hall said if he ever found out who that was, he would “have his balls.” The union filed a complaint with the Board claiming that AllService violated the National Labor Relations Act (“NLRA”). According to the complaint, Lungrin unlawfully surveilled, threatened, and interrogated other employees. The union also charged that AllService effectuated its pre-election layoffs because of those employees’ involvement with union activities. .. CONTINUED .. COURT DECISION: (.html)
♦
May 29,
.. United States Court of International Trade:
V.O.S. Selections, Inc. v. Trump
.. TRUMP EXCEEDED HIS TARIFF AUTHORITY
CONCLUSION:
The court holds for the foregoing reasons that IEEPA does not authorize any of the
Worldwide, Retaliatory, or Trafficking Tariff Orders. The Worldwide and Retaliatory Tariff
Orders exceed any authority granted to the President by IEEPA to regulate importation by means
of tariffs.
The Trafficking Tariffs fail because they do not deal with the threats set forth in those
orders.
This conclusion entitles Plaintiffs to judgment as a matter of law; as the court further finds
no genuine dispute as to any material fact, summary judgment will enter against the United States.
The challenged Tariff Orders will be vacated and their operation permanently
enjoined.
Plaintiffs’ Motions for Summary Judgment are granted, and their Motions for Preliminary
Injunction are denied as moot.
Judgment will enter accordingly.
By the panel.
.. CONTINUED
..
COURT DECISION:
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♦ May 29, .. 11th Cir.: McClinton v. Capstone Logistics LLC .. In July 2017, Mr. McClinton began working for Capstone, a logistics company that provides warehouse management and freight and delivery services, as a night shift supervisor at its warehouse in Bessemer, Alabama. In February 2019, McClinton visited the doctor for pain in his back and left leg that caused him to limp. The doctor diagnosed him with a degenerative condition in his spine and recommended surgery. McClinton decided to have the surgery and told his manager about it roughly a week beforehand. Following this conversation, and for the remainder of McClinton’s employment with Capstone, no one at Capstone informed McClinton about the potential to take FMLA leave. McClinton had the back surgery on February 25, 2019, and returned to work a month later. McClinton received his full salary and short-term disability benefits during this time. Less than a month after McClinton returned to work and less than a week after he requested accommodations to help him perform his job functions after the return of his leg pain and difficulty walking, Capstone terminated McClinton’s employment. McClinton sued, and the case proceeded to a jury trial. .. CONTINUED .. COURT DECISION: (.html)
♦ May 29, .. 8th Cir.: Moore v. Pooches of Largo, Inc. .. This case began with a job posting for a veterinary technician and ended with a jury verdict. In September 2020, Ms. Moore filed a pro se complaint against Plaintiff Melanie Moore worked at Pooches of Largo (“Pooches”) and its owner, Luis Marquez, asserting thirteen causes of action. Relevant to this appeal are claims for Fair Labor Standards Act (“FLSA”) retaliation, Florida Whistleblower Act (“FWA”) retaliation, failure to pay minimum wage under the FLSA, fraudulent misrepresentation, and tortious interference with contract. Moore alleged that she applied to Pooches in August 2018 for a job advertised as a certified veterinary technician position with a salary of $35,000 per year. She began working at Pooches on August 13, 2018, and worked for about three weeks, during which she claimed to have worked at least 85 hours. On August 31, she was paid $184—reflecting 24 hours at $8.45 per hour. She complained via text message to her supervisor about the pay discrepancy and threatened to hire an attorney. Shortly after sending that text, she was terminated. In October 2018, Moore retained attorney Richard Celler to represent her. Celler sent a demand letter to Pooches asserting claims under the FWA and Pinellas County’s Wage Theft Ordinance. Pooches responded by asserting Moore had been hired as a part-time kennel technician and produced job postings, a second pay stub dated September 14, and claimed Moore had altered a wage agreement. Moore disputed the authenticity of the pay stub and accused her attorney of conspiring with Pooches. She alleged Celler misled her about settlement efforts and failed to pursue her claims diligently. .. CONTINUED .. COURT DECISION: (.html)
♦
Apr 2,
.. 6th Cir.:
Walenciej v. E. Ohio Corr. Ctr.
..
The Eastern Ohio Correction Center (EOCC) is a community-based correctional facility. The EOCC “provides residential correctional-related services to felony offenders, including but not limited to services such as prison diversion, substance abuse addiction assistance, education assistance, and programs for community service.” The Facility Governing Board (FGB) oversees the EOCC’s general operations.
Ms. Walenciej has a master’s degree in social work and is a Licensed Independent Social
Worker with Supervisory Status in the state of Ohio. She began working at the EOCC in
2006. After serving as a program administrator beginning in 2006, Walenciej
became Deputy Director in 2014. As Deputy Director, Walenciej reported to Gallo and assisted
him with general operations, including hiring and disciplinary decisions. She also acted in Gallo’s
stead when he was absent. While she was Deputy Director, Walenciej consistently received
“exceptional” (the highest rating available) and “advanced” (the second-highest rating available)
ratings on her performance evaluations.
In 2019, Gallo outlined a transition plan that called for him to retire at the end of 2020 and
Ms. Walenciej to begin as Executive Director on January 1, 2021. Based in part on Gallo’s
recommendation, the Facility Governing Board (FGB) selected Walenciej to be the next Executive Director.
As news spread about Ms. Walenciej’s potential promotion to Executive Director, the FGB
received nine written complaints—seven anonymous and two signed—about Walenciej,
apparently from current and former employees.
The complaints alleged that Walenciej bullied and
harassed other EOCC employees; regularly used inappropriate language when talking to and about
residents and staff; was generally a bad manager; had a romantic relationship with her subordinate
Matt Grimard and gave him preferential treatment; hired her friends and gave them preferential
treatment; and falsified statistics used to secure grant funding.
After receiving these complaints, the Facility Governing Board (FGB) “suspended contract talks” with Walenciej
and “openly advertised” the Executive Director position. It also engaged
outside counsel Fishel Downey Albrecht & Riepenhoff, LLP (Fishel Downey), to investigate the
complaints. Because several of the complaints were anonymous, Fishel Downey “interviewed
all resident supervisors, case managers, and programming staff to ensure a thorough investigation.”
In short, the Report found that Walenciej “engaged in harassing and unprofessional
behavior,” “bullied subordinate employees,” “did not follow the EOCC’s hiring policies and
procedures,” had a relationship with Grimard and gave him preferential treatment, and improperly
operated the Vivitrol program. It therefore recommended terminating her
employment.
Because the investigation uncovered misconduct from other employees as well, the
Report also recommended terminating Grimard’s employment; disciplining, but not firing,
Watkins; requiring LaRoche to complete additional training on ethics and other policies; and,
given Gallo’s planned retirement, “hastening the EOCC’s hiring process and beginning the
transition to a new Executive Director as soon as practicable.”
The Facility Governing Board (FGB) promptly acted on the Report’s recommendation and directed Gallo to terminate
Walenciej’s employment. The resulting termination letter, dated April 10, 2020, stated that the
EOCC was firing Walenciej “following the results of an internal investigation that concluded she
engaged in misconduct and inappropriate behavior in violation of numerous EOCC policies.”
Here, Ms. Walenciej appeals.
.. CONTINUED
..
COURT DECISION:
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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)
