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May 18,  ..  It’s The Birthday Of Philosopher Bertrand Russell, born in Trellech, Wales (1872).    into one of Britain’s most prominent families. His parents were radical thinkers, and his father was an atheist, but both his parents died by the time he was four.     They left their son under the care of radical friends, hoping he would be brought up as an agnostic, but his grandparents stepped in, discarded the will, and raised Bertrand and his brother in a strict Christian household.     As a teenager, Bertrand kept a diary in which he described his doubts about God and his ideas about free will. He kept his diary in Greek letters so that his conservative family couldn’t read it.     Then he went to Cambridge and was amazed that there were other people who thought the way he did and who wanted to discuss philosophical ideas. He emerged as an important philosopher with The Principles of Mathematics (1903) which argued that the foundations of mathematics could be deduced from a few logical ideas.     He went on to become one of the most widely read philosophers of the 20th century. His History of Western Philosophy (1946) was a big bestseller and he was able to live off its royalties for the rest of his life.     He said, “The time you enjoy wasting is not wasted time.”  ..      It's The Birthday Of Civil War Photographer Mathew Brady, (1823).       It's The Birthday Of Filmmaker Frank Capra, (1897).   ...  CONTINUED    -AND-    POEM:  "House" by Billy Collins  ...   The Writer’s Almanac


the writers almanac 5.18.2022

poem "house" by billy collins

OPM WEBSITE   ♦ OPM Coronavirus Guidance   ♦ Guidance And Notifications FOR FEDS Performance Management Tips for a Hybrid Workplace.

♦       May 18,  .. CCA:    Trinity v. LINA  ..  Ms. Trinity sued Life Insurance Company of North America (LINA) for discrimination, harassment and wrongful termination.   The LINA parties moved to compel arbitration based on an agreement they alleged Trinity had electronically acknowledged in 2014 during her employment with LINA.   The trial court denied LINA's motion, finding the LINA parties had not established the existence of an agreement to arbitrate and, even if they had, the purported agreement could not be enforced because it was procedurally and substantively unconscionable.   LINA Appealed.  ..  COURT DECISION:   (.pdf)   (.html)

♦        May 18,  .. 5th Cir.:    Gamel v. Forum Energy Technol  ..  Mr. Gamel was a four-year employee of Forum Energy Technologies, Inc. and worked as a machinist.   In 2017, his Hepatitis C, which had been dormant, became active and caused Gamel to suffer extreme fatigue. He was hospitalized from September 22-24, 2017, and placed on prescription medication.    On October 16, 2017, two of Gamel’s co-workers reported that Gamel was acting strangely. Production Manager Dan Bergerson asked Gamel to submit to a drug test, and Gamel agreed.    The drug test was conducted by a third-party vendor, DISA Global Solutions, which routinely conducts employee-related drug tests and provides certified results to Forum.    DISA reported that Gamel’s drug test came back positive for amphetamine and methamphetamine.    In accordance with Forum’s Substance Abuse Policy, Gamel was given the opportunity to discuss his positive drug test results with a Medical Review Officer (“MRO”) from DISA to determine any legitimate medical explanation for the positive drug test result.    On October 21, 2017, the MRO interviewed Gamel to discuss the results. The MRO’s notes reflect that Gamel stated that he never used amphetamine or methamphetamine and that he was taking the following prescription medications: Lasix, Advair, and a medication for Hepatitis C.    Gamel contended that the prescription medication caused a false positive drug test result.    On October 24, 2017, Forum sent Gamel a letter stating that his employment was being terminated based on the confirmed positive drug test result, which constituted a violation of Forum’s Substance Abuse Policy.    Gamel filed a charge of discrimination with EEOC -- then filed this lawsuit against Forum, alleging that Forum discriminated against him on the basis of a disability—Hepatitis C—in violation of the ADA. He further alleged that Forum failed to accommodate him by allowing the use of prescription medication and by not allowing him to retest.  ..  COURT DECISION:   (.pdf)   (.html)

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♦       May 17,  .. FLRA:  Army v. IAFF  ..  Employees are assigned to a forty-eight-hour shift and scheduled to work seventy‑two hours every week.    In October 2018, the grievant requested 432 hours of official time to attend an intensive six‑week training program starting in January 2019.    With the request, the grievant attached a document that provided information about the training’s various courses.    The Agency denied the request because:   (1) 432 hours exceeded a reasonable amount of official time;   (2) “the training was not . . . of mutual concern to the Agency and the Union and the Agency’s interests were not served by the grievant’s attendance”; and   (3) the document that the grievant attached to the request was not a “detailed agenda” showing the “dates and times of the courses.”    The Union filed a grievance alleging that the Agency violated Article 5, Section 7 of the master agreement (Article 5) and the local agreement by denying the grievant’s official‑time request.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       May 17,  .. FLRA:  VA v. AFGE  ..  After the Union declined to mid-term bargain over new procedures for requesting and tracking official time, the Agency unilaterally implemented the procedures. Arbitrator Malcolm L. Pritzker found that the procedures concerned a matter that was covered by the parties’ agreement. The Arbitrator also found that the parties had agreed to bargain over covered matters in certain circumstances, but that such mid-term bargaining could take place only with mutual consent. Because the Union did not consent to mid-term bargaining, the Arbitrator found that the Agency violated the parties’ agreement by unilaterally implementing the new procedures.    The Agency argues that the award is deficient because it fails to draw its essence from the provisions in the parties’ agreement concerning mid-term bargaining. The Agency also argues that the Arbitrator erroneously applied the “covered by” doctrine.    In this case, we remind the federal labor-relations community that contract provisions that define parties’ obligations to engage in mid-term bargaining are enforceable at arbitration.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       May 17,  .. FLRA:  AFGE v. FRA  ..  The Union filed two grievances concerning the Agency’s unilateral change to the mileage-reimbursement rate for employees who use privately owned vehicles for work.    Both grievances allege, as relevant here, that the Agency violated the parties’ agreement and committed an unfair labor practice (ULP) by failing to bargain over the change.    The second grievance, which “incorporate[d] by reference” the allegations in the first grievance, also alleged that the Agency violated the parties’ agreement and committed a ULP by failing to bargain over the impact and implementation of the change, and by unilaterally terminating the parties’ agreement.    The parties consolidated the grievances (hereafter, the grievance), and the dispute proceeded to arbitration. The Agency filed a “[b]rief on [a]rbitrability,”[2] challenging the arbitrability of the grievance. In an interim award, the Arbitrator framed the issue as whether the grievance is arbitrable.  ..  FLRA DECISION:   (.pdf)   (.html)

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♦       May 16,  .. 6th Cir.:    Forrester v. American Security  ..  American Security and Protection Service is a security firm owned and operated by its CEO, F. Michael Jones.    The firm employed Marsha Forrester as a security guard for about eight months in 2019.    She was paid hourly. According to Forrester, American Security required its employees to arrive 10 to 15 minutes before their scheduled shift and sometimes remain 10 to 15 minutes after. Called “pass down,” the purpose of this time was to create an overlap between shifts. Forrester describes pass down as involving “several shift-change duties.”    She also alleges that American Security didn’t pay her or any employee for this time, didn’t keep records of the pass-down time, yet disciplined employees who didn’t report early.    Forrester sued American Security on behalf of a putative class of similarly situated employees alleging violations of the Fair Labor Standards Act (FLSA).  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 16,  .. PCC:    Donnelly v. PennDOT  ..  On January 28, 2021, police officer Shannon Hilliard of the Gettysburg Borough Police Department initiated a traffic stop of Licensee’s vehicle because of its expired registration.    During the traffic stop, Officer Hilliard observed that Licensee had bloodshot, glassy eyes, and that the odor of alcohol was emanating from her breath.    Officer Hilliard directed Licensee out of her vehicle to perform field sobriety testing.    Licensee’s poor performance on the tests caused Officer Hilliard to believe Licensee was intoxicated.    Officer Hilliard then asked Licensee for preliminary breath testing, but she did not provide an adequate breath sample to complete the test.    Ultimately, Officer Hilliard arrested Licensee for DUI and transported her to a hospital for blood testing.    For reasons that the parties dispute, Licensee did not submit to a voluntary blood test. Officer Hilliard obtained a search warrant for a blood sample.    On February 11, 2021, the Department mailed Licensee a notice stating that it was suspending her operating privilege for a period of one year due to her refusal to submit to the blood test. Licensee appealed the suspension to the trial court.  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 16,  .. SCV:    Gates v. Mack Molding  ..  Mack Molding Company hired Ms.Gates (plaintiff), as a “molder” in 1996. In May 2015, plaintiff reported to defendant that she injured her left knee outside of work.    She subsequently took approximately twelve weeks of leave under the federal Family and Medical Leave Act (FMLA) and the PFLA, which ran concurrently.    Plaintiff returned to work full-time as a molder in August 2015 after exhausting her FMLA/PFLA leave.    Upon her return, plaintiff handed a note from her medical provider, Dr. Gammons, to the human resources manager. The note stated that plaintiff could return to work full-time. It stated further that plaintiff could lift and carry twenty-one to fifty pounds “frequently.” The note defined “frequently” as constituting “34%–66% of a workday” and “continuously” as being “67%–100%” of a workday.    Plaintiff did not say anything to the human resources manager when she delivered this doctor’s note. She did not make any explicit request for any accommodation to anyone at work.    Duties of the molder position included operating a machine called the Press 30. Operating this machine required lifting totes weighing thirty-three to thirty-five pounds onto pallets every four-and-a-half minutes. Plaintiff operated the Press 30 machine when she returned to work as a molder in August 2015.    Plaintiff left work around one hour into her third shift back in August 2015, due to pain in her left knee. She did not return to work until October 2015. During this period, she received short-term disability benefits, which were unrelated to FMLA or PFLA leave.  ..  COURT DECISION:   (.pdf)   (.html)

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♦       May 13,  .. 9th Cir.:    O. L. v. Jara  ..  Plaintiff-Appellant “O.L.” sued, claiming that officers at the City of El Monte Police Department (EMPD) and Los Angeles Sheriff’s Department (LASD) mishandled their investigations of her claim of rape.     O.L. met her alleged assailant online and went on a date with him. She claimed that he raped her later that night, and she reported it to the EMPD. O.L. showed Officer Martha Tate messages on her cell phone between herself and the alleged assailant. In those messages, O.L. casually discussed the sexual activity that occurred the night of the alleged rape and agreed to meet him again for a future sexual encounter. Based on these messages, Officer Tate questioned O.L. about alcohol use, consent, and her motive for reporting the alleged crime.     O.L.’s case was later transferred to LASD. Detective Liliana Jara interviewed her. O.L. showed Detective Jara the same messages on her cell phone. Detective Jara also saw a message in which O.L. told the alleged assailant that she “could make him lose his job” after she discovered that he had remained active on the online dating website where they met. The detective, too, questioned O.L. about her motive for reporting the alleged crime and ultimately told O.L. that her case suffered from many problems.     At the end of the interview, O.L. agreed to provide her cell phone to LASD to download messages. O.L. provided Detective Jara with her cell phone password and signed a form giving LASD consent to search the phone for “any and all data” related to the case.     Before returning the phone to her, LASD’s task force downloaded the phone’s data onto a USB drive to allow the investigating officer to review the data.     O.L. then retrieved her cell phone from LASD custody.     After the Los Angeles District Attorney declined to file charges against the alleged assailant, O.L. filed a pro se complaint.  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 13,  .. D.D.C.:    Payne v. Biden  ..  A jab or a job?    Plaintiff Mr. Payne is a federal civilian employee who works as an engineer for the Office of Naval Research, a component of the Department of the Navy.    He has been a member of the civil service for over two decades.    Plaintiff alleges that, at some unspecified time in the past, he contracted COVID-19 and recovered.    In his view, he thereby “acquired natural immunity against the disease.”    Mr. Payne claims that the Executive Order requiring COVID-19 vaccination for covered federal employees unlawfully puts him to this choice.    Last fall, President Joseph Biden issued Executive Order 14,043, which mandates vaccinations for executive-branch employees, subject to a medical or religious exception. Payne, who works for the Navy, refuses to be vaccinated and has not applied for an exception.    He instead filed this lawsuit against a number of federal agencies and officials, alleging that the Executive Order and the associated agency actions are unconstitutional for several reasons.  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 13,  .. Fed. Cir.:    Mynatt v. MSPB (IRS)  ..  Mr. Mynatt is employed by the Internal Revenue Service (“agency”).    On October 30, 2020, Mynatt informed his supervisor that he had been “charged with aggravated domestic assault and reckless endangerment, both felonies,” but that he had retained counsel and planned to “vigorously defend” against the charges.    On February 1, 2021, the agency proposed to suspend Mynatt for an indefinite period, stating that it had reasonable cause to believe that he might be guilty of a crime for which a sentence of imprisonment could be imposed.    Later that day, Mynatt contacted Alicen Jones, who worked in the agency’s human resources department, and asked her to email him a copy of the materials the agency had relied upon in proposing to indefinitely suspend him.    Less than thirty minutes later, Jones emailed Mynatt the materials he had requested.    These materials consisted of: (1) an eight-page Police Incident Report related to the charges that had been filed against Mynatt; and (2) a two-page Memorandum of Interview by Department of the Treasury Special Agent Crystal Albright.    On February 3, 2021, the agency removed Mynatt’s access to ERAP, a system which allows agency employees to securely connect to the agency network when working remotely.    After the agency decided to suspend Mynatt, he appealed to the board.  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 13,  .. 11th Cir.:    Motley v. Taylor  ..  In 2013, the Montgomery County District Court ordered Motley to pay fines and court costs after she pled guilty to a traffic ticket. Motley did not pay the ticket because she could not afford to do so.    Motley’s driver’s license was suspended for failure to pay her fines. She had not received prior notice that her driver’s license would be suspended if she did not pay the ticket.    Before suspending her license for failure to pay, neither the court nor ALEA—which administers all state laws relating to the operation of vehicles—held a hearing to determine whether her failure to pay was willful.    Employers rescinded job offers after learning of Motley’s suspended driver’s license because without a valid license it was impossible for her to perform certain job functions like deposit checks or travel for work.    On July 3, 2019, Motley sued.  ..  COURT DECISION:   (.pdf)   (.html)

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♦       May 12,  .. 7th Cir.:    Canter v. AT&T  ..  Craig Canter worked as a premises technician for Illinois Bell Telephone Company, a subsidiary of AT&T Services, Inc. (AT&T).    His job duties included installing wires, lifting heavy loads, and climbing tall ladders— sometimes as high as 28 feet tall and up to seven times per day. But after he began to suffer from severe migraines, light-headedness, and dizziness, Canter concluded that he no longer could perform that work.    He applied for short-term disability benefits in February 2017 through a plan that AT&T maintained for this purpose. The plan administrator granted benefits for a few months, but AT&T terminated them after an independent medical reviewer concluded that Canter’s medical tests were normal and that his symptoms had improved.    After Canter unsuccessfully appealed this decision using AT&T’s internal processes, he sued AT&T and the plan.  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 12,  .. 8th Cir.:    Davis v. Spear  ..  On August 5, 2017, Shawn E. Davis stabbed Preston Davis outside a gathering at his home.    Several people—including Crysteal Davis (the victim’s wife), Damon Davis (his brother), and Iisha Hillmon (his cousin)—witnessed the stabbing.    Police secured the scene, taking Shawn into custody. Paramedics took the victim to the hospital.    Des Moines Police Department officers Trevor Spear, Ryan Neumann, and Lucas Kramer responded to the scene. Captain Robert Clock was the Watch Commander in charge of the officers.    All the witnesses, including the family, told the officers that Shawn stabbed the victim, and they wanted to go to the hospital.    Crysteal and Damon tried to leave in their cars but the officers stopped them. At least three officers told the family they would take them to the hospital.    They got in two patrol cars. Instead, the officers took them to the police station, where they waited more than three hours to be interviewed.    Throughout the car ride and during their wait at the station, the family members demanded to go to the hospital.  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 12,  .. 3rd Cir.:    Snyder v. DowDuPont  ..  Ms. Snyder started working at DuPont in 1997. She worked at DuPont’s Tralee Park plant, where she made and inspected rubber parts. Her job was “[m]ostly” sedentary.    Sadly, Snyder was plagued by migraines and sinus infections. Despite many surgeries, her ailments persisted. She missed work often, taking roughly twenty medical leaves. Each time, DuPont granted her leave request, paid her salary under its short-term disability plan, and let her return to work with “the same salary and benefits.”    But DuPont started to suspect that Snyder was abusing its disability policy. It noticed that Snyder had a “pattern of high absences that seemed to coincide with the maximum amount of [federally mandated medical-leave] time.”    Plus, employees reported seeing her out and about while she was on medical leave, supposedly recuperating. One even spotted her boating.    So DuPont hired a private investigator to surveil Snyder.    DuPont fired her.    As its human-resources manager explained, it did so because she had lied about her symptoms and “used DuPont disability leave for purposes that [were] inconsistent with her recovery and counter to her doctor’s orders.”    Snyder sued DuPont under the Family Medical Leave Act (FMLA), alleging retaliation.    DuPont, she said, had punished her by surveilling and firing her because she had taken sick leave under the FAMLA Act .  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 12,  .. 8th Cir.:    Blanton v. KC Southern Railway  ..  Mr. Blanton worked as a locomotive engineer for In-Terminal Services (“ITS”). ITS contracted to provide railcar-switching services for KCSR.    The contract required ITS to carry workers’ compensation insurance. During a shift in October 2012, a KCSR dispatcher authorized Blanton to occupy a railroad track but failed to mention that three empty train cars had been left on the track.    Unable to slow down, Blanton’s train collided with the empty train cars, and Blanton was injured.    Blanton filed a workers’ compensation claim with ITS and received a lump-sum payment after settling the claim.    He then filed a civil negligence action against KCSR, which does not carry workers’ compensation insurance.    KCSR moved for summary judgment, and the district court granted KCSR’s motion on the ground that KCSR was exempt from liability under Missouri’s workers’ compensation law.    Blanton appeals.  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 12,  .. D.C. Cir.:    Pham v. NTSB  ..  Mr. Pham and the Federal Aviation Administration both petition for review of the National Transportation Safety Board’s suspension of Pham’s pilot and medical certificates for 180 days.    Pham contends that the Board erred in concluding that he refused a drug test when he left the test center before providing the requisite amount of urine because   (1) he was not told he could drink water (a “shy-bladder” warning), as required by regulation,   (2) he was given permission to leave, and   (3) his urine sample was unlawfully discarded.    He also contends that the Board impermissibly applied a strict-liability standard.    The FAA objects by cross-petition to the Board’s decision to suspend rather than revoke Pham’s certificates as the FAA ordered, contending that   (1) the Board is obligated to defer to the FAA’s guidance and interpretations of its regulations,   (2) those regulations require revocation of medical certificates for at least 2 years after a refusal to test, and (3) the Board deviated from its precedent without explanation.  ..  COURT DECISION:   (.pdf)   (.html)

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ROSIE PEREZ INTERVIEW ON NPR FRESHAIR SHOW
TERRY GROSS, HOST:   This is FRESH AIR.    My Guest Is The Emmy And Oscar-Nominated Actor Rosie Perez.   She started her performing career as a dancer. When she was 19, she was dancing at a club with her friends when a talent scout from "Soul Train" noticed her and invited her to dance on the show. She brought her style of hip-hop dancing to "Soul Train" at a time before hip-hop had entered the mainstream. She went on to be the choreographer for The Fly Girls, the dancers on the sketch comedy show "In Living Color." She choreographed music videos for Bobby Brown, Diana Ross and L.L. Cool J.

In 1988, when she was 24, Perez went to a nightclub and ended up getting in an argument with Spike Lee. He told her, I've been looking for somebody who can yell at me in exactly that way, and he cast her as his girlfriend in "Do The Right Thing." Despite the success of the movie, Rosie Perez couldn't get an agent or a manager to take her seriously as an actress. But she pushed on, something she's done her whole life, and was cast in "White Men Can't Jump" and Peter Weir's film "Fearless," which earned her a best supporting actress nomination.

Perez had a rough childhood. She had nine siblings. Her mother was intermittently jailed throughout her childhood and was diagnosed later in life as schizophrenic. When Perez was 3 years old, she was transferred to a Catholic foster home run by nuns and was considered a ward of the state of New York until age 12. ...    READ FULL TRANSCRIPT OF ROSIE PEREZ INTERVIEW HERE

2 excerpts from rosie perez interview fixed
listen to full 46 minute rosie perez inteview HERE
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♦       May 11,  .. CCA:    Quach v. Commerce Club  ..  In 2015, Commerce Club required all its employees to sign a new arbitration policy as a condition of continued employment.    The agreement required employees to submit any covered dispute to an informal resolution process within the company, and, if necessary, to resolve the dispute through arbitration.    The agreement covered “all matters directly or indirectly related to [Quach’s] recruitment, employment, or termination of employment.” Quach signed and returned his copy of the agreement on February 18, 2015.    On November 16, 2018, Commerce Club terminated Quach’s employment after a customer paid the casino with $100 in counterfeit bills during Quach’s shift.    On November 22, 2019, after receiving a right-to-sue letter from the Department of Fair Employment & Housing, Quach filed a lawsuit against Commerce Club. Among other things, the lawsuit alleged causes of action for wrongful termination, age discrimination, retaliation, and harassment.  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 11,  .. Fed. Cir.:    Vanhorn v. MSPB (Postal)  ..  Ms. VanHorn is a retired United States Postal Service employee who presently receives a disability retirement annuity.    Ms. VanHorn alleges that she applied for disability retirement from the USPS on August 15, 2018, and that the Office of Personnel Management wrongfully denied her application several times before granting it almost two years later on May 18, 2020.    During the intervening period, in 2019, Ms. VanHorn claims that the USPS “unlawfully terminated” her health insurance and her life insurance as of January 31, 2019.    She also alleges that she was wrongfully terminated by the USPS in September 2019, and that the termination took retroactive effect to March 30, 2019.  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 11,  .. 8th Cir.:    Blanton v. KC Southern Railway  ..  Nathan Blanton worked as a locomotive engineer for In-Terminal Services (“ITS”).    ITS contracted to provide railcar-switching services for KCSR. The contract required ITS to carry workers’ compensation insurance. During a shift in October 2012, a KCSR dispatcher authorized Blanton to occupy a railroad track but failed to mention that three empty train cars had been left on the track. Unable to slow down, Blanton’s train collided with the empty train cars, and Blanton was injured.    Blanton filed a workers’ compensation claim with ITS and received a lump-sum payment after settling the claim.    He then filed a civil negligence action against KCSR, which does not carry workers’ compensation insurance. KCSR moved for summary judgment, and the district court granted KCSR’s motion on the ground that KCSR was exempt from li    ability under Missouri’s workers’ compensation law.    Blanton appeals.  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 11,  .. SCNJ:    Acoli v. N.J. Parole Board  ..  On May 2, 1973, Acoli was driving with two fellow members of the Black Liberation Army, James Costan and Joanne Chesimard. All three were armed with handguns. Shortly before 1:00 a.m., New Jersey State Trooper James Harper stopped their car for a broken taillight. Acoli exited the car to speak with Trooper Harper. Almost simultaneously, Trooper Werner Foerster arrived on the scene as backup. Trooper Foerster frisked Acoli while Trooper Harper approached the car. While patting Acoli down, Foerster uncovered ammunition and a pistol.    As Trooper Foerster was confronting Acoli, Chesimard shot Trooper Harper in the shoulder.    A shootout ensued between Harper, Chesimard, and Costan. In the meantime, Acoli attempted to wrest Trooper Foerster’s gun from him. In the course of that physical struggle, Acoli claims that Trooper Harper fired at him, grazing the top of his head and causing him to black out. According to Acoli, when he regained consciousness, Trooper Foerster’s body was lying on the ground nearby and Acoli fled with Costan and Chesimard, both severely wounded.    In 1974, a jury found Acoli guilty of all charges brought against him for the murder of Trooper Foerster and the shooting of Trooper Harper. In total, he received an aggregate prison sentence of life plus twenty-four to thirty years. Under the law that controlled the crimes he committed in 1973, Acoli first became eligible for parole in 1993. N.J.S.A. 30:4-123.11 (repealed 1997). The Parole Board has denied Acoli parole every time he became eligible for release.    Acoli has lived the last forty-nine years in various federal prisons. After an early attempted escape and some minor infractions in the nineties, Acoli’s record over more than a quarter century has been exemplary.  ..  COURT DECISION:   (.pdf)   (.html)

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♦       May 10,  .. Fed. Cir.:    Campion v. Defense  ..  Mr. Campion worked for the government as a Telecommunications Specialist, a position that required Mr. Campion to “remain eligible for access to classified and sensitive national security information.”    On June 22, 2020, the government suspended Mr. Campion’s access to classified information and placed him on paid administrative leave.    The Department of Defense Consolidated Adjudications Facility then issued a preliminary decision revoking Mr. Campion’s eligibility for access to classified information on November 18, 2020.    And on April 28, 2021, the government suspended Mr. Campion indefinitely without pay.    Mr. Campion appealed his indefinite suspension without pay to the Board.  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 10,  .. ICA:    Harvey v. Chicago Transit Authority  ..  Ms. Harvey filed a complaint for retaliatory discharge, alleging her former employer, the Chicago Transit Authority, fired her for raising concerns about the quality and testing of filters the CTA planned to install on its buses.    Harvey contended that when she informed her superiors that NAPA Auto Part’s oil filters were of inferior quality and could damage bus engines, they pressured her to fast-track testing and approval of the filters and fired her when she refused to comply.    The CTA moved several times to dismiss, alleging Harvey’s complaint failed to establish it violated “a clear mandate of public policy,” a necessary element of a retaliatory discharge claim.    The trial court finally allowed the complaint. After trial, a jury returned a verdict for Harvey and awarded her $600,000 in damages. ... CONTINUED  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 10,  .. PCC:    Burock v. Office of the Budget  ..  Mr. Burock worked for Employer’s Bureau of Accounting and Financial Management (BAFM) as an Accountant 3 from March 2012 until his termination in June 2019.    Burock was tasked with assisting in the oversight of the fiscal and budgetary affairs of multiple Commonwealth agencies by reconciling and analyzing financial information, preparing financial statements and forecasting budgetary and cash needs.    By signature dated February 21, 2018, Burock acknowledged receipt of Employer’s job performance standards for his position. As a senior level accountant, Mr. Burock was expected to provide guidance to other accountants. F.F. 8.    In January 2019, Employer placed Burock on a performance improvement plan (January 2019 PIP) for the January 2019 to March 2019 rating period (first rating period).    In April 2019, Employer issued an interim EPR deeming Burock’s overall job performance during the first rating period “Unsatisfactory.” ... CONTINUED  ..  COURT DECISION:   (.pdf)   (.html)

. . .

♦       May 9,  .. 9th Cir.:    Shields v. Credit One Bank  ..  Kate Shields alleged that her former employer violated the ADA by failing to accommodate her disability and instead terminating her from her human resources job after she underwent a bone biopsy surgery of her right shoulder and arm.    The district court concluded that Shields failed to plead a “disability” because she did not adequately allege that she had “a physical or mental impairment that substantially limited one or more major life activities.”    Kate Shields appealed to the Court of Appeals for the Ninth Circuit.    NINTH CIRCUIT DECISION :    Because the district court applied the wrong legal standards in holding that Shields had failed to plead a “disability,” we reverse its dismissal of Shields’s complaint.  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 9,  .. TCA:    Pruitt v. State of Tennessee  ..  Ms. Taka Pruitt, who is unrelated to [Petitioner, Mr. Corinio Pruitt] arrived at the Apple Market with her neighbor. They parked directly outside the front door of the market.    Ms. Pruitt stayed in the car while her neighbor went inside. As she waited in the car, she observed a “younger gentleman,” later identified as [Petitioner, Mr. Corinio Pruitt], standing to the left of the door.    Ms. Pruitt recognized him as someone who lived in her apartment complex. After five or six minutes, Ms. Pruitt saw an older man walk out of the market with groceries in his arms and walk to his car. As he reached the driver’s side door, [Petitioner, Mr. Corinio Pruitt] ran up behind the older man and pushed him into the car.    Although she could not see clearly into the car, it appeared to Ms. Pruitt that the two men were “tussling.” She saw [Petitioner] on top of the older man, and she could see the older man’s feet dangling out of the car.    After about fifteen seconds, she saw [Petitioner] throw the older man to the ground, slam the car door, and drive away. When Ms. Pruitt checked on the victim, he was shaking and having trouble breathing and he was bleeding from his nose and both ears.    Ms. Pruitt called 911 on her cell phone.    Ms. Pruitt went to the police station after the carjacking. She identified [Petitioner, Mr. Corinio Pruitt] from a photo lineup as the person who beat the victim and took the victim’s car. ... CONTINUED  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 9,  .. D.D.C.:    Kartte v. Davis  ..  While the COVID-19 pandemic has prodded companies all over the world to switch to remote work, this transition is not necessarily a panacea for employment disputes, as this case proves.    Plaintiff Felix Kartte, a Berlin resident, was hired by Defendants Trevor Hugh Davis and his D.C.-based security-consulting companies, CounterAction, LLC and ToSomeone, Inc., as their “Director of European Operation” in September 2020.    According to Kartte, promises of a hiring bonus, equity, and the creation of a German subsidiary never materialized;    instead, Davis began subjecting him to abuse and disparagement, ultimately terminating him in late November of the same year.    Plaintiff’s ensuing lawsuit alleges various torts, including defamation, fraud, and tortious interference with business relations, as well as discriminatory violations of the D.C. Human Rights Act and breach of contract.    In now moving to dismiss all nine counts, Defendants maintain that the operative Second Amended Complaint is replete with legal and factual deficiencies.    As half a loaf is better than none for both sides, the Court awards each a partial victory, granting the Motion as to some counts and denying it as to others.  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 9,  .. 6th Cir.:    McPeters v. Parker  ..  In 2017, while she was on probation with the State of Tennessee, April Diane McPeters was sexually assaulted in her home by a probation officer.    McPeters alleges that after she reported the incident to two unidentified male Tennessee Department of Correction (“TDOC”) officers, she was subjected to “increasingly strict supervision” and a “surprise” home visit seven months later, which led to revocation of her probation and her being sent to jail.    McPeters also alleges that her request to be assigned a female probation officer was denied, that her assailant “assaulted multiple [other] probationers,” and that female probationers across Tennessee have made “[m]ultiple complaints” of sexual harassment and assault by male probation officers.    The assailant, Bryant Lamont Thomas, was fired for an unrelated incident. Although there was never a formal TDOC report or investigation into his misconduct towards McPeters, Thomas later pleaded guilty to sexual contact with a probationer and was sentenced to two years of supervised probation.    McPeters filed suit under 42 U.S.C. § 1983 against Thomas and his supervisors, alleging that her constitutional rights had been violated.  ..  COURT DECISION:   (.pdf)   (.html)


♦       May 6,  .. FLRA:  AFGE v. ARMY  ..  The grievant, a senior mechanic, was involved in a verbal altercation with a junior mechanic. Following the altercation, the Agency proposed a three‑day suspension for discourtesy and use of abusive language.    Although the proposal referred to the altercation as a first offense, it noted that the Agency had previously issued the grievant a memorandum of record (the memo) “concerning the grievant’s treatment of . . . a[nother] employee,” after the grievant had called that employee “boy.”    At step two of the grievance process, the Agency’s deciding official reduced the suspension to two days.    The Union grieved the suspension, which proceeded to arbitration.    The Arbitrator framed the issues as:   (1) “Was the grievant disciplined for just cause and, if not,   (2) what is the appropriate remedy?”  ..  FLRA DECISION:   (.pdf)   (.html)

♦       May 6,  .. FLRA:  AFGE v. VA  ..  The parties previously entered into a settlement agreement concerning how disabled‑veteran employees could take leave for medical treatment consistent with Executive Order No. 5396 (the executive order).     Subsequently, the Agency denied a disabled veteran’s request for medical leave for failing to provide documentation showing that the veteran’s disability was connected to military service (service‑connected disability).     At arbitration, the Union maintained that, under the settlement agreement, disabled‑veteran employees were entitled to leave for medical treatment regardless of whether their disability was service connected.     Arbitrator Steven E. Kane issued an award finding that, although a service‑connected disability requirement was not specified in the settlement agreement, the Agency could impose that requirement because that was consistent with external guidance on interpreting the executive order.     Because the award relies on interpretations of the executive order—rather than the wording of the settlement agreement—we set aside the award as failing to draw its essence from the settlement agreement.     In this case, we set aside an award that improperly relied on interpretations of an executive order, rather than the parties’ negotiated settlement agreement.  ..  FLRA DECISION:   (.pdf)   (.html)

♦        may 5,  ..  No New Cases To Post Today.    gonna try using some new worms.

♦        may 4,  ..  No New Cases To Post Today.    They're Stealing These Cases, Again !

♦        may 3,  ..  No New Cases To Post Today.    pERMERICA rEPORTED A mAJOR cASE-jACKING !

♦       May 2,  .. FLRA:  NTEU v. IRS  ..  During negotiations over a successor collective-bargaining agreement, the parties disputed the negotiability of one proposal. The Union requested a written allegation of non-negotiability, which the Agency provided. On October 11, 2021, the Union timely filed its petition. The Agency filed a statement of position (statement), and the Union filed a response to the statement (response). An Authority representative conducted a post-petition conference (PPC) with the parties pursuant to § 2424.23 of the Authority’s Regulations.[1] After the PPC, the Agency filed a reply to the Union’s response.       The Union filed a petition seeking review of one proposal concerning noncompetitive temporary promotions and details that exceed 120 days.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       May 2,  .. FLRA:  AFGE v. VA  ..  The Union filed a grievance alleging that the Agency owed certain bargaining‑unit employees a pay differential for work performed on Saturdays (Saturday premium pay).     In a merits award, Arbitrator Raleigh Jones found that the Agency violated the parties’ collective‑bargaining agreement by failing to (1) pay some employees Saturday premium pay and (2) provide the Union information necessary to ascertain to whom the Agency owed backpay.     The Arbitrator directed the parties to try to resolve the remedy themselves.     When the parties were unable to agree, the Arbitrator issued a remedial award that determined the amounts of backpay owed to each employee and denied the Union’s requests for interest and overtime.     The Union filed exceptions to the remedial award on several grounds, including that it was contrary to the Back Pay Act (the Act).  ..  FLRA DECISION:   (.pdf)   (.html)


Apr 29,  ..  It’s The Birthday Of Duke Ellington, born in Washington, D.C. in 1899.    His childhood friends took to calling him “Duke” because of his dapper demeanor and easy grace.   He composed more than 3,000 songs in his lifetime, enduring jazz classics like “Mood Indigo” (1930), “It Don’t Mean a Thing (if it Ain’t Got That Swing)” (1932), and “Sophisticated Lady” (1933).    He led his big band from 1923 until his death in 1974.   ...  CONTINUED    -AND-    POEM:  He Wanders by Grace Paley  ...   The Writer’s Almanac

♦       Apr 29,  .. 6th Cir.:    Barnard v. Powell Valley Electric  ..  Jo Ann Barnard, the Director of Finance and Accounting at Powell Valley Electric Cooperative (PVEC), brought claims against her employer, alleging wage discrimination under the Equal Pay Act (EPA), and retaliation for her engagement in protected activity.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 29,  .. 4th Cir.:    US v. Jacqueline Okomba  ..  In October 2013, Sessum and Okomba opened Direct Processing.    The company that collected “out-of-statute” debts — i.e.,   unenforceable debts   whose statutes of limitations had run.    Direct Processing bought lists of people with such debts, often engaging outside vendors to obtain debtors’ contact information.    The company then called the debtors using dialer services and left automated messages prompting them to resolve their debts.    The messages identified a fictitious caller and warned debtors of impending legal action.    If a debtor responded to the message, they were connected to a Direct Processing employee. These employees used scripted pressure tactics that built on the automated messages, coercing debtors into paying some, all, or more than their alleged debt. And employees earned bonuses the more they collected.    Employees were also trained to inflate the purported debts and tell debtors that Direct Processing would be serving them with legal process, including judgments, wage garnishments, or liens.    And they warned debtors of imminent arrest if the debts went unpaid.    But Direct Processing lacked legal authority to enforce the out-of-statute debts. So it never did. Still, the company collected over six million ($6,000,000) dollars in its first three years of operation.    Following a joint trial, a jury convicted Laurence Sessum and Jacqueline Dianne Okomba of conspiracy to commit wire fraud and obstruction of justice.    The jury also convicted Sessum of wire fraud and conspiracy to commit money laundering.    The district court sentenced Sessum to 135 months in prison.    Okomba received a 72-month prison sentence.    They appeal, raising a host of challenges.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 29,  .. CCA:    Burroughs v. Truebeck Construction  ..  Truebeck is a company based in San Mateo County that provides general contractor services for large-scale commercial construction projects.   Plaintiff Mr. Burroughs began working there in 2008, as its Director of Health and Safety. In that role, he was responsible for overseeing the company’s compliance with safety guidelines and standards applicable to the construction industry.    Burroughs alleges that after he reported to company management his discovery that an employee had falsified a safety training record, he was subjected to increasingly hostile treatment in the workplace that ultimately forced him to quit his job when the situation became intolerable.    Burroughs initiated this suit against his former employer for various statutory and common law claims of retaliation and wrongful constructive discharge, and ultimately the trial court granted summary judgment against him.    He now appeals, arguing that various triable issues of fact warrant a trial on all of his causes of action.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 29,  .. 4th Cir.:    Walton v. Harker (Navy)  ..  Ms. Walton is an African American woman, who has been employed by the federal government since 1979. Beginning in 1995, she worked at the Space and Naval Warfare Systems Center (“SPAWAR”).    In 1999, Walton was promoted to the position of Administrative Specialist in the Contracts Administration section, in which she performed the functions of a contracting officer. That was Walton’s last promotion, and she remained in that position until her recent retirement.    Walton claims she was laterally “reassigned against her will to a lower level and undesirable position in the Contracts Division”  ..  COURT DECISION:   (.pdf)   (.html)


Apr 28,  ..  It’s The Birthday Of The Writer Harper Lee (1926), Harper Lee grew up in Monroeville, Alabama and, except for when she moved to New York City for a few years after college, that’s where she lived all her life.    Harper Lee's classic novel To Kill a Mockingbird (1960), introduced the characters "Scout Finch" and her father, lawyer "Atticus Finch."    The novel examined race relations in the American south and is still required reading in many high schools. The book won the Pulitzer Prize.    It’s since sold over 40 million copies and has never been out of print.   ...  CONTINUED    -AND-    POEM:  Myth Dispelled by Adam Possner ...   The Writer’s Almanac

to kill a mockingbird : tom robinson v mayella ewell + atticus   scout   jim  calpurnia   boo   dill   robert

♦       Apr 28,  .. D.D.C.:    Mosleh v. Howard University  ..  Howard University is a Historically Black University (HBCU) located in Washington, DC.    Mohsen Mosleh is an Iranian American professor in Howard University’s Department of Mechanical Engineering.    He alleges that Howard unlawfully discriminated against him on the basis of race and national origin and unlawfully retaliated against him.    The Court dismissed Mosleh’s breach-of-contract claims at the motion to dismiss stage    but permitted his discrimination and retaliation claims to proceed.    Howard University has now moved for summary judgment on those (discrimination and retaliation) claims.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 28,  .. MSCA:    Romeka v. RadAmerica  ..  Ms. Romeka worked as a chief radiation therapist for RadAmerica, which supplied radiation treatment health care workers to a hospital’s radiation oncology center.    Over a period of 2 ½ weeks, her superiors investigated complaints about her falsification of a medical record, incompetency endangering patient safety, and poor treatment of those she supervised and/or worked with;    and the designated Human Resources Department then conducted its own investigation into the same complaints.    Ms. Romeka’s immediate supervisors recommended that she be fired,    and the Human Resources Department later made the same recommendation.    The day after that second recommendation, Ms. Romeka made an oral complaint to her immediate superior about a radiation therapy machine being used with a broken treatment couch.    The next day, a Friday, RadAmerica’s President made the final decision to fire Ms. Romeka.    On Monday, Ms. Romeka was fired by her immediate superior.    She asked him if she could resign instead, a request that implicitly was denied.    Ms. Romeka sued, alleging that her oral complaint was a protected disclosure under the HCWWPA and that she was fired in reprisal for making it, in violation of the Act.    She also alleged that the failure to allow her to resign instead of being fired, immediately after she was fired, was a further violation of the Act.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 28,  .. NYSCAD:    Orji v. MTA Bus Company  ..  The plaintiff testified at her deposition that as she was walking toward the rear seating area shortly after boarding the MTA bus in New York City,    the bus stopped at a red traffic light,    which caused her to lose her grip on the railing and fall onto her left side.    The plaintiff commenced this personal injury action against the [MTA Bus Company] alleging that they were negligent in the ownership and operation of the bus.    MTA moved for summary judgment dismissing the complaint insofar as asserted against it, arguing, inter alia, that the movement that caused the plaintiff to fall was not unusual or violent and was not of a different class than the jerks and jolts commonly experienced in city bus travel.    The Supreme Court of the State of New York denied MTA's motion for summary judgment dismissing the plaintiff's complaint.    Here __ MTA appeals __ requests summary judgment dismissing the plaintiff's complaint.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 28,  .. MCSA:    Cador v. YES Organic Market  ..  The Case At Hand :
At approximately 9:00 P.M. on September 21, 2016, the plaintiff-appellant, Mrs. Cador, along with her husband and her daughter, went shopping in a Yes Organic Market Store in Hyattsville, Maryland.    The Market was still open, but it was approaching closing time.    While shopping, the plaintiff slipped and fell on a portion of the floor that had recently been mopped by an employee of the Market.    In this area there was located (and visible on Video) a formal warning sign alerting customers to the possible presence of a wet floor.    The warning sign read, “Caution: Wet Floor” in large and prominent lettering.    The plaintiff required partial knee replacement surgery.    The plaintiff sued the Market for negligence.    The Market filed a motion for Summary Judgment based on the affirmative defenses of both 1) contributory negligence and 2) the assumption of risk.    On October 6, 2020, the trial judge granted the motion for Summary Judgment in favor of the Market on both grounds.       With this appeal, plaintiff is requesting a jury trial.  ..  COURT DECISION:   (.pdf)   (.html)


       August Wilson said :
“My greatest influence has been the blues.
And that’s a literary influence, because I think the blues is the best literature that we as black Americans have. […] Blues is the bedrock of everything I do. All the characters in my plays, their ideas and their attitudes, the stance that they adopt in the world, are all ideas and attitudes that are expressed in the blues. If all this were to disappear off the face of the earth and some people two million unique years from now would dig out this civilization and come across some blues records, working as anthropologists, they would be able to piece together who these people were, what they thought about, what their ideas and attitudes toward pleasure and pain were, all of that. All the components of culture.”      The Writer’s Almanac

♦       Apr 27,  ..  It’s The Birthday Of Playwright August Wilson, he grew up in the impoverished Hill district of Pittsburgh. with his mother and five siblings. His family had two rooms with no hot water.    He dropped out of school altogether when he was 15 years old.    So he taught himself at Pittsburgh’s Carnegie Library. He read Richard Wright, Langston Hughes, and Ralph Ellison.    In 1980 I sent a play, Jitney (a ghetto cab company set set in the Hill district of Pittsburgh), to the Playwrights’ Center in Minneapolis, won a Jerome Fellowship.    Wilson continued to write successful and popular plays: Ma Rainey’s Black Bottom (1982), set in the 1920s; Fences (1983), set in the 1950s and 1960s; and Joe Turner’s Come and Gone (1984), set in 1911. All set in the impoverished Hill district of Pittsburgh. . ... CONTINUED    -AND-    POEM:  In Several Colors by Jane Kenyon ...   The Writer’s Almanac

♦       Apr 27,  .. WVSC:    Zerfoss v. Hinkle Trucking  ..  Ms. Zerfoss was hired as a commercial truck driver at Hinkle Trucking in February 2011. She worked there until January 29, 2014, when she resigned to work for a different employer.    Two months later, on March 31, 2014, Ms. Zerfoss was rehired at Hinkle Trucking under the same terms as her previous employment.    She remained employed until January 21, 2016, when she again resigned.    Ms. Zerfoss filed the underlying civil action against Hinkle Trucking, Gary Hinkle, and Travis Hinkle.    She sought the recovery of unpaid wages, statutory liquidated damages, punitive damages, attorney’s fees, and interest.    At the center of this dispute was the parties’ disagreement over the rate of Ms. Zerfoss’s pay.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 27,  .. 11th Cir.:    Chames v. Calhoun County  ..  In 2016, Plaintiff, Ms. Chames -- a black female -- was hired as a Correc- tions Lieutenant at the Calhoun County Jail.    In late 2018, Ms. Chames began complaining to her superiors that the two other Corrections Lieutenants (both white males) were each being paid $15,000 to $17,000 more per year than Ms. Chames was paid.    Ms. Chames reported that she believed the disparity in pay was based on Ms. Chames’s race and sex. Ms. Chames voiced these concerns to her direct supervisor, to Sheriff Wade, to County Commissioner Wilson, and to the County Administrator.    In response to Ms. Chames’s complaints about pay, Sheriff Wade submitted to the County a formal request for Ms. Chames to receive a pay increase.    Ms. Chames was later told that the County had approved a $5,000 raise for Ms. Chames.    In exchange for the pay raise, however, Ms. Chames was required to sign an acknowledgement form waiving her rights as a civil service employee.    Ms. Chames refused to sign the form: a document Ms. Chames perceived as retaliation for Ms. Chames’s complaints about discrimination.    Around the same time, Ms. Chames says the two white male Lieutenants received a $10,000 pay increase.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 27,  .. 6th Cir.:    Boshaw v. Midland  ..  Boshaw, an openly gay man, began working as a server at Midland Brewing in May 2018. A few months into Boshaw’s tenure, Donna Reynolds, Boshaw’s supervisor, spoke with him about taking on a leadership position. Boshaw mentioned to Reynolds “something about not wanting to be . . . a server or bartender forever” and that he “wanted to learn more stuff.”    The next day, Reynolds “told [Boshaw] that before she presented the opportunity” to move into a “leadership role” to Midland’s majority owner, David Kepler, Boshaw “needed to change [his] appearance and kind of just act a little more masculine.”    In September 2018, not long after their conversation, Reynolds promoted Boshaw. And Boshaw was promoted twice more.    Despite his promotions, Boshaw’s employment record was not spotless.    The final straw for Boshaw was missing a mandatory meeting and then not showing up to work that evening.    Boshaw claims that he received permission for his absences.    Around 2:30 p.m. on the day in question, Boshaw texted Moody that he would relieve her around 6:00 p.m. Reynolds’s lone communication with Boshaw that day was a text just before 5:00 p.m. asking Boshaw to call her. But Boshaw never called.    Midland fired Boshaw the following day due to his “absence and failure to notify management” in addition to “other issues.”    After his firing, Boshaw filed a complaint with the Equal Employment Opportunity Commission.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 27,  .. 4th Cir.:    Strickland v. United States  ..  Plaintiff Caryn Devins Strickland is an attorney who was formerly employed by the Federal Public Defender’s Office for the Western District of North Carolina (FPDO).    During the course of her employment, Strickland was allegedly subjected to sexual harassment by the First Assistant Public Defender (First Assistant).    When Strickland reported the harassment, Anthony Martinez, the Federal Public Defender (FPD), allegedly failed to take proper action and instead effectively retaliated against Strickland in various ways, including requiring her to meet with the First Assistant and to continue working under his supervision.    Strickland made unsuccessful informal attempts to resolve the sexual harassment through the Administrative Office of the United States Courts (AO), and the FPD allegedly retaliated against Strickland for doing so by, in part, reclassifying her job and denying her a promotion.    After allegedly experiencing delays, procedural irregularities, and no resolution of the sexual harassment, Strickland asked the mediator to help her secure a term clerkship with a federal appellate judge. According to Strickland, she was constructively discharged. Strickland formally resigned from her position with the FPDO in March 2019.    In March 2020, Strickland initiated these proceedings.  ..  COURT DECISION:   (.pdf)   (.html)


♦       Apr 26,  .. 8th Cir.:    NLRB v. Noah's Ark Processors  ..  Noah’s Ark Processors, LLC (“Noah’s Ark”), is a limited liability company that purchased meat processing facilities in Hastings, Nebraska in 2015.    After the purchase, Noah’s Ark continued to operate the facilities under a five-year collective bargaining agreement (“CBA”) with United Food and Commercial Workers Local Union No. 293 (the “Union”), representing a largely Spanish speaking 250-300 employee bargaining unit.    The CBA expired in January 2018 with the parties engaged in what became lengthy, unsuccessful negotiations for a new contract.    The Union filed an unfair labor practice charge in March 2018 alleging failure to bargain in good faith. That charge was settled in June, but the Union filed a new charge in July, and additional charges in the ensuing months, alleging failure to bargain in good faith and other unlawful anti-Union activities.    The General Counsel of the National Labor Relations Board (the “Board”) filed a Complaint, and the consolidated charges were tried before an Administrative Law Judge (“ALJ”) in March 2019.    Largely adopting the ALJ’s findings, the Board entered an order that Noah’s Ark committed multiple unfair labor practice violations.    The Board also concluded that Noah’s Ark unlawfully threatened and terminated ten workers who engaged in an unauthorized work stoppage on March 27, 2018. ... CONTINUED  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 26,  .. WVSC:    Judy v. Eastern  ..  From April 2018 to May 2019, Judy Diane Sigismondi Judy (“Judy”) was a commercial driver’s license (“CDL”) instructor for Respondent Eastern West Virginia Community and Technical College (“Eastern”).    We note at the outset that there is much debate as to whether Petitioner was an employee of Eastern or an independent contractor.    In August 2020, Judy filed a complaint against Eastern alleging that Eastern’s decision to terminate her employment was predicated upon illegal age and sex discrimination.    Immediately thereafter, Eastern moved to dismiss the complaint contending that:   (1) Judy lacked the ability to bring a claim under WVHRA because she was not an “employee” under the Act;   (2) Eastern was entitled to qualified immunity as a state agency; and   (3) Judy failed to allege that but for her protected status she would not have lost her job.    After a hearing on the motion to dismiss, the Circuit Court found that Eastern was entitled to qualified immunity.    Judy appealed that order to this Court.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 26,  .. 4th Cir.:    Holloway v. Maryland  ..  Holloway, a black man, began his employment with Defendants in 2014, as the “Program Coordinator/Deputy Director” of Freestate Challenge Academy, a residential education program for at-risk adolescents.    From 2014 to 2016, Holloway worked under Program Director Charles Rose, a white man. While he worked for Rose, Holloway was a top performer and regularly received outstanding evaluations.    In June 2016, Rose was dismissed as Program Director but apparently reinstated elsewhere within the Maryland Military Department. Holloway then assumed the role of Acting Program Director. Around November 2016, Holloway was promoted to Program Director.    After Holloway’s promotion, he began to have problems with the Director of Human Resources, a white man named Nicholas Pindale. According to Holloway, Pindale refused to work with him and required Holloway, unlike other directors, to take his concerns to the Human Resources Deputy Director, Princess Neal Washington, a black woman.    In early 2018, Holloway learned he was being paid around $5,000 less annually than Rose had been. Holloway raised the pay discrepancy with Pindale, who allegedly agreed Holloway was not being compensated fairly but did not rectify the disparity.    Around February 1, 2018, Holloway filed his first Equal Employment Opportunity (EEO) complaint, alleging “discrimination and harassment/hostile work environment.  ..  COURT DECISION:   (.pdf)   (.html)


♦       Apr 25,  ..  It’s The Birthday Of The “First Lady Of Song” And Queen Of Jazz Ella Fitzgerald, born in Newport News, Virginia (1917). Her smooth voice and technical skill remain unmatched in the jazz world.    Fitzgerald got her start at Amateur Night at the Apollo Theater in Harlem when she was just 17 years old. . ... CONTINUED      On This Day In 1928 Buddy, The First Seeing Eye Dog, Was Presented To Morris S. Frank. , Frank had lost the use of one eye in a childhood accident and the other in a boxing match as a teenager. He had used a young boy as a guide "got bored easily” and sometimes abandoned Frank for more interesting things. . ... CONTINUED    -AND-    POEM:  Sleeping Next To The Man On The Plane by Ellen Bass. ...   The Writer’s Almanac

♦       Apr 25,  .. FLRA:    AFGE v. HUD  ..  Arbitrator Joshua M. Javits issued an award finding that the Agency acted in bad faith during the parties’ negotiations over official time, but did not act in bad faith regarding Union requests for information (RFIs).    Therefore, he determined that neither party was the prevailing party and each was responsible for its own legal fees and expenses, in accordance with the parties’ agreement.    The Union filed exceptions to the award on exceeded-authority, nonfact, contrary-to-law, and essence grounds.    Because the Union’s arguments are inconsistent with the position it took before the Arbitrator  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Apr 25,  .. 3rd Cir.:    Uber Driver Emery v. Uber  ..  Emery began working as a driver for Uber.    Emery, who is black, alleged that, sometime in 2017, “Uber Rider James” repeatedly “made racially-tinged remarks about Emery’s genitals while proposing that they have sex.”    Emery did not report the incident to Uber.     Next, on Jan 11, 2020, “Uber Rider Dinely” allegedly demanded that Emery make a few stops prior to arriving at her destination. When he declined, Dinely stated that she “very often” asked “black Uber drivers’ to take her places and they would just comply without asking her any questions.”     Using the Uber App, Emery reported Dinely to Uber as “rude.”    Shortly thereafter, Emery’s account was placed on hold, pending an investigation of a rider complaint. When contacted by a member of Uber’s investigation team, Emery reiterated that Dinely was “rude.” Within hours of that call, his account was reactivated.    Finally, on Jan 20, 2020, “Uber Riders Taji and her friend” allegedly made sexual demands and race-specific remarks about Emery’s genitals, and insulted him “with many more sexual and cuss words.” Emery reported the incident to Uber, which indicated that it would investigate. Two days later, Uber deactivated Emery’s Uber account, allegedly for “inappropriate behavior/conduct.”    Based on these three interactions with riders, Emery alleged three violations including claims for (1) disparate treatment, (2) hostile work environment, and (3) retaliation.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 25,  .. 6th Cir.:    Courtney v. Wright MT  ..  Wright Med. Tech (WMT) hired Plaintiff Fred Courtney (“Plaintiff” or “Courtney”) in April 2010, when Plaintiff was 45 years old. From 2010 through approximately 2017, Plaintiff was a Senior Director of Facilities and Maintenance at WMT.    Thereafter, Courtney’s role grew to encompass additional environmental, health, and safety responsibilities.    Throughout Courtney’s tenure, he received annual performance reviews via formal reports generated by WMT. Those reports show that Courtney either met or exceeded expectations for his role throughout his time at the company.       HERE, Courtney appeals the district court’s order granting Defendant Wright Medical Technology, Inc.’s (“Defendant” or “WMT”) motion for summary judgment on Plaintiff’s age discrimination claims.    Plaintiff’s complaint alleged that Defendant terminated Plaintiff in violation of the Age Discrimination in Employment Act (“ADEA”).       For the reasons set forth below, we REVERSE the district court’s order granting Defendant’s motion for summary judgment and REMAND the case for further proceedings consistent with this opinion.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 25,  .. 10th Cir.:    Durand v. Barnes  ..  Durand is a Black female who worked as a Youth Services Specialist II at the Lookout Mountain Youth Services Center (“Lookout Mountain”), “an intensive secure treatment program for male juvenile offenders.”    Her “role at Lookout Mountain was similar to a guard at a correction center for youths who had committed crimes.” Durand was assigned to Lookout Mountain’s Spruce housing unit.    Shull was Lookout Mountain’s Assistant Director. In that position, she exercised supervisory authority over the Spruce and Juniper West units.    On May 22, 2017, an inmate referred to as “John Doe” violently assaulted Durand as she escorted him back to his room in the Spruce unit for not following her instructions.    Durand “suffered a traumatic brain injury and cervical spine injury.”    Shull notified police, who charged Doe with assault.    On one or more other occasions, Durand heard Doe in the control room “state terms such as ‘Black Bitch’ and/or ‘don’t press charges.[’]”    Two weeks after she returned to work, Durand learned that Doe had threatened to “continue to assault” her and kill her if she pressed charges against him.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 25,  .. D.C.:    Hill v. D.C. DES  ..  Mr. Hill began working as a bus operator for the Washington Metropolitan Area Transit Authority (WMATA) in 2009.    While on duty on February 1, 2013, he suffered physical and mental injuries when he was attacked by a passenger. After the attack, he received treatment and eventually returned to full duty as a bus operator.    Petitioner’s doctors opined that the mental health symptoms he experienced after the 2013 attack were also related to injuries he sustained in a 2010 accident.    Dr. Sussal explained that, as in 2010, petitioner insisted that he would “be fine” if he could return to work in a “non-operator position.”    In late February 2017, petitioner suffered the sudden and tragic loss of his son. Petitioner took three days of bereavement leave before returning to work at the beginning of March.    On March 3, 2017, petitioner had a public disagreement with a supervisor which — the petitioner alleges — exacerbated his existing mental injury.    The petitioner sought care through the Employee Assistance Program (EAP) and received a referral for mental health treatment.    While at EAP, petitioner filled out a sick leave form but did not claim an on-the-job injury or file a claim for workers’ compensation.       Petitioner Yul Hill seeks review of a Compensation Review Board (CRB) order which affirmed an Administrative Law Judge’s (ALJ) decision to deny petitioner’s claim for temporary total disability benefits relating to a mental-mental injury.  ..  COURT DECISION:   (.pdf)   (.html)


♦       Apr 21,  .. D.D.C.:    Hudson v. AFGE  ..  In the latest skirmish between Plaintiff Eugene Hudson, Jr. and Defendant American Federation of Government Employees, Hudson seeks reinstatement as a member of AFGE such that he can continue his quest to be elected President of the Union.    He has thus brought this suit alleging that AFGE’s refusal to reinstate him constitutes race discrimination and a violation of various federal labor statutes.    In now moving for Court intervention to allow his candidacy at the forthcoming June convention, Hudson contends that he has satisfied the preliminary- injunction factors.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 21,  .. D.C. Cir.:    Weng v. Walsh (DOL)  ..  Ms. Weng is an Asian woman of Taiwanese national origin. From 1995 until March 2012, she worked as an Employee Benefits Law Specialist at the Department of Labor.    According to Weng, she “never received a negative performance evaluation, nor any formal counseling or discipline, from 1995 to 2005.”    During the timeframe at issue, Weng’s union representative – the American Federation of Government Employees – had a collective-bargaining agreement with the Department.    Ms, Weng alleges that, from the time she joined the Office, “she, along with other minority employees, was subjected to offensive racial, ethnic, and/or sexually charged slurs, comments, and jokes by [Office] management officials.”    Beginning in 2004, two of Weng’s coworkers filed Equal Employment Opportunity (“EEO”) complaints against Office management.    Weng appeared as a witness in her coworkers’ cases, and she alleges that the harassment against her escalated after she testified in support of a colleague.    Starting in 2006, Weng also filed multiple EEO complaints and union grievances about her working conditions.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 21,  .. 3rd Cir.:    Green v. Philadelphia  ..  The Philadelphia Police Department (“PPD”) randomly drug-tests its officers. Ten percent of officers selected for testing must submit both urine and hair samples, which detect a much longer period of drug use.    From 2014 to 2019, the PPD administered hair tests to 7,900 African American officers, 13,170 Caucasian officers, and 96 officers who self-identified as “other.”    Three African American officers, one Caucasian officer, and one “other” officer tested positive for cocaine during this period.    Green was an officer with the PPD from 1991 to 2018, rising to the rank of sergeant. In 2018, a hair sample taken from Green’s chest tested positive for cocaine and cocaine metabolites.    The accompanying urine sample tested negative but was diluted below acceptable levels, which Green attributed to the alleged diuretic effects of a prescription medication.    Two subsequent retests returned positive hair tests and negative urine tests. Green’s union representative advised him to retire from the police rather than be fired, and he did so on November 21, 2018.    On September 23, 2019, Green filed a lawsuit claiming that the PPD’s use of hair testing has a disparate impact on African American officers in violation of Title VII and the Constitution’s Equal Protection Clause.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 21,  .. Fed. Cl.:    Boyer v. United States (VA)  ..  This case is brought by Plaintiff Leslie Boyer, a female clinical pharmacist at the Veterans Affairs Medical Center of Birmingham, Alabama (“BVAMC”), who alleges gender discrimination in violation of the Equal Pay Act (“EPA”).    Plaintiff’s claim arises out of her discovery, three years after her hiring, that a male coworker in the same position (“Male Comparator”), who Plaintiff alleges has less experience than her, was hired after her with a higher starting pay rate. The justification for the pay differential forms the crux of this dispute.    Generally, new hires (or “appointments”) in the federal government are made at the minimum rate of pay (or “step”) for the appropriate grade of the individual under the General Schedule (“GS”) system. See 5 U.S.C. § 5333.    In order to depart from the minimum step, an agency must justify the step increase it intends to offer the individual.       In pertinent part, 5 U.S.C. § 5333 provides that, pursuant to regulations, federal agencies may appoint an individual above the minimum step “for such considerations as    the existing pay or    unusually high or unique qualifications of the candidate, or    a special need of the Government for his services . . . .”    CONTINUED  ..  COURT DECISION:   (.pdf)   (.html)


♦       In 1927, On This Day, Actress Mae West Was Jailed For Her Performance In Sex, the Broadway play she wrote, directed, and starred in.    She served ten days in prison and jail time seemed to have done her good — it didn’t make her change her act but it did bring her national notoriety — and helped make her one of Hollywood’s most memorable and quotable stars.       She Said, “There Are No Good Girls Gone Wrong,       Just Bad Girls Found Out…”       and       “I Generally Avoid Temptation Unless I Can’t Resist It.”    The Writer’s Almanac

♦       Apr 20,  .. D.D.C.:    Grzadzinski v. Garland (FBI)  ..  Plaintiff Ms. Grzadzinski worked for the Federal Bureau of Investigation (FBI) for many years, eventually attaining the position of Deputy General Counsel of the Investigative Law and Legal Training (ILLT) Branch.    In that position, she reported directly to James Baker, General Counsel of the FBI. Several months into Grzadzinski’s tenure, Baker reorganized the Office of the General Counsel, eliminating her position and reassigning her to a role reporting to one of her former peers.    Not long after that, Baker recommended removing Grzadzinski from the Special Executive Service (SES), thus returning her to the lower employment grade she had held before assuming the DGC position.    Plaintiff believes that these removal decisions, as well as an earlier determination not to hire her for the DGC position in the FBI’s National Security Law (NSL) Branch, were driven by Baker’s animus towards women    — specifically older women who did not conform to Baker’s idea of how a woman should act.    She thus filed this lawsuit alleging violations of Title VII and the Age Discrimination in Employment Act arising out of her non-selection for the NSL Branch DGC position, her removal as ILLT Branch DGC, and her demotion from the SES.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 20,  .. WCA:    Sefnco Communications V. Department Of Labor And Industries  ..  SEFNCO Communications, Inc. appeals two citations issued by the Department of Labor and Industries (DLI) under (WISHA) following the injury to one of its employees when he contacted an energized power line during the installation of a telecommunications line.    The Board of Industrial Insurance Appeals (Board) upheld the citations, a serious violation, for allowing the injured employee to come too close to energized power lines, and a general violation, for having an employee at the job site who did not have the required first aid training.    SEFNCO argues that the citation for the serious violation was improper because the findings that the employee was a supervisor and that SEFNCO had constructive knowledge of the serious violation are not supported by substantial evidence.    SEFNCO further argues that even if the constructive knowledge finding was supported by substantial evidence, SEFNCO established the defense of unpreventable employee misconduct.    SEFNCO also argues that the evidence was insufficient to support the citation for the general violation because the DLI failed to prove that the employee at issue was required to have first-aid training.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 20,  .. TN WC:    Turner v. Channel Control  ..  The parties agreed that Ms. Turner suffered compensable injuries from a workplace fall on June 29, 2020. Channel Control provided medical benefits, including neurological treatment with Dr. Nicole Bonsavage for her head injury.    In September, Dr. Bonsavage restricted Ms. Turner from performing duties that required higher cognitive functions.    Ms. Turner returned to work, but Channel Control did not accommodate her restrictions, and she had to perform the same tasks that she did before the accident.    In November, Ms. Turner again presented the restrictions to her manager, Cindy Reyes,who ignored them and required her to continue performing her original job duties.    Ms. Reyes placed Ms. Turner on either administrative or medical leave on January 9, 2021.    Ms. Turner was then fired for unprofessional conduct on January 13, although she denied being told why (using profanity in front of a customer) until she filed this claim.       The Court held an Expedited Hearing on March 31, 2022, to determine whether Ms. Turner is entitled to temporary disability benefits and additional medical treatment.    Although the parties focused primarily on the reasons for Ms. Turner’s termination, the Court finds that issue irrelevant under the evidence presented.    As a result, the Court holds that she is likely to prevail at a hearing on the merits.  ..  COURT DECISION:   (.pdf)   (.html)


♦       Apr 19,  .. Fed. Cir.:    Rickel v. Navy  ..  Mr. Rickel was a Fire Protection Specialist with the First Coast Navy Fire and Emergency Services (Fire Ser- vices) at Naval Air Station Jacksonville. In 2014, the Department of Navy appointed him—in his role as Fire Protection Specialist—to Assistant Chief of Training.    In this position, Mr. Rickel was responsible for determining training requirements for the department, reviewing training records and charts, and ensuring that the Fire Services firefighters’ certifications were maintained and current.    He was the only Fire Services employee assigned to the Fire Services training department.    In late 2016, Mr. Rickel applied for the department’s open Deputy Fire Chief position.    Fire Chief Mark Brusoe ultimately selected James Gray, an Assistant Chief of Operations with the Fire Services. The agency promoted Mr. Gray to Deputy Fire Chief.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 19,  .. Fed. Cir.:    Afolayan v. DOJ  ..  On April 30, 2009, Agent Mr. Afolayan collapsed after completing a mandatory training run at the Border Patrol Academy in Artesia, New Mexico. A day later, he died.       At the time of his death, Agent Afolayan was in the last week of a twelve-week training program at the Border Patrol Academy in Artesia, New Mexico.    At approximately 2:45 p.m. on April 30, 2009, Agent Afolayan and other agents-in-training performed their final physical-fitness test, which included a one-and-a-half mile run to be completed in thirteen minutes or less.    The run took place at approximately 3,400 feet above sea level, with the temperature at approximately 88 degrees Fahrenheit and relative humidity between six and seven percent.    After completing the run in eleven minutes and six seconds, Agent Afolayan indicated that he did not feel well and thereafter collapsed.    Agent Afolayan died at 10:41 p.m. the next day. His death certificate, as amended in September 2009, listed the immediate cause of death as “Heat Illness” and identified “cardiomegaly (cardiac disease)” as an “other significant condition[] contributing to death.”    The meaning of the death certificate is less than clear.    His widow, Lisa Afolayan, appeals from the Bureau of Justice Assistance’s (“Bureau’s”) denial of death benefits.       We vacate the decision and remand for further proceedings consistent with this opinion.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 19,  .. 11th Cir.:    Mitchem-Green v. MHM  ..  Ms. Mitchem-Green, an African-American woman, filed a lawsuit in state court against her former employer, MHM Health Professionals, LLC, (“MHM”), f/k/a MHM Health Professionals, Inc., raising claims of race and sex discrimination and retaliation under Florida state law.    Ms. Mitchem-Green holds a doctoral degree in nursing. From January to September of 2017, she worked as an Advanced Registered Nurse Practitioner (“ARNP”) at Suwannee Correctional In- stitution.    Undisputed evidence reflects that Mitchem-Green did not meet MHM’s expectations for productivity, time management, and following instructions.    MHM expected Mitchem-Green to see up to thirty patients per day, spending no more than fifteen minutes with each patient, regardless of the severity or complexity of the patient’s particular health issues.    Mitchem-Green regularly was well below that mark. For example, from July 18, 2017, through August 31, 2017, she averaged 4.23 patient encounters per day.       Mitchem-Green does not dispute she failed to meet MHM’s expectations for patient encounters, but she asserts that it was impossible to meet her workload without additional support.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 19,  .. OCA:    Fonce v. Champion  ..  In May 2000, Appellant began working for Appellee, Champion Township, as an assistant to the zoning inspector.    The former zoning inspector retired in August 2004, and Appellant was promoted to full-time zoning inspector.    In December 2019, Appellant filed a complaint against the Township and Trustees Fee, Bugos, and Emerine. Appellant’s claims were: 1) gender discrimination; 2) age discrimination; 3) promissory estoppel; 4) retaliation; 5) violation of public policy; and 6) intentional endangerment.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 19,  .. 9th Cir.:    Martinez-Rodriguez v. Curtis Giles  ..  Plaintiffs are six citizens of Mexico who were recruited to work as “Animal Scientists” at Defendant Funk Dairy, Inc. (“Funk Dairy”) in Idaho under the “TN Visa” program for “professional” employees, established under the North American Free Trade Agreement (“NAFTA”).    But when Plaintiffs arrived at the dairy to perform such professional services, they were instead required to work substantially as general laborers.    After leaving Funk Dairy’s employ, Plaintiffs brought this suit alleging a variety of claims under federal and Idaho law.    In particular, Plaintiffs alleged that Defendants’ bait-and-switch tactics violated applicable federal statutory prohibitions on forced labor by, inter alia, abusing the TN Visa program in order to coerce Plaintiffs to provide menial physical labor.  ..  COURT DECISION:   (.pdf)   (.html)


♦       Apr 18,  .. 8th Cir.:    Gruttemeyer v. Transit Authority  ..  John Gruttemeyer began working for the Omaha Nebraska Transit Authority (Metro) in 2011 as a full-time bus operator and transferred to a position as a bus fueler and washer in May 2015.    Gruttemeyer was a member of the Transportation Workers Union (the Union) for the duration of his employment with Metro.    He was elected vice president of the Union in November 2015 and served in that role until March 1, 2016. Gruttemeyer had previously worked for the Omaha Fire Department for 23 years.    He took a one-year medical leave because of stress and depression and then retired from the fire department with a disability pension in July 2010.    In a letter dated July 6, 2016, Metro fired Gruttemeyer.    Gruttemeyer filed suit in federal district court alleging that Metro terminated his employment because of his disability—bipolar disorder, anxiety disorder, and depression—and in retaliation for Gruttemeyer helping a co-worker who claimed age discrimination by Metro.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 18,  .. 7th Cir.:    Palmer, Jr. v. Indiana University  ..  Paul Palmer, Jr. II, sued his employer Indiana University of the Civil Rights Act of 1964, alleging discrimination based on his race. Palmer, who is African American, claimed that IU violated Title VII in two ways: (1) by failing to provide him an early promotion and (2) by paying him less than one of his white colleagues.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 18,  .. 7th Cir.:    Perez v. Staples  ..  James Perez of Elmhurst, Illinois, began work at Staples as a national trainer in 2011. He held that position for four years until he became a sales representative in January 2015. His supervisor was Fred Coha, an area sales manager.    Perez’s documented performance issues began five months later.    Coha told Perez that his year-to-year sales growth did not meet the company’s expectations. Coha placed Perez on a “weekly activity plan” to increase his sales.    Perez was informed that “additional steps may be taken” if his sales results did not improve in 90 days. Six months later Perez was still not meeting the company’s objectives, so Coha placed him on another weekly activity plan.    Perez again received an admonition that if his sales did not improve further steps may be taken. Coha and Perez met weekly to discuss Perez’s work performance.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 18,  .. SCRI:    Family Dollar v. Araujo  ..  On January 18, 2012, Mr. Araujo filed a workers’ compensation claim against his employer (Family Dollar), alleging that he had been injured on January 17, 2012 during the course of his employment.    Consequently, Mr. Araujo began to receive weekly workers’ compensation benefits from January 18, 2012 to August 12, 2012 and then beginning again on April 4, 2013—both periods of benefits relating to the same January 17, 2012 injury.    Thereafter, on September 12, 2014, Mr. Araujo’s attorney sent a letter to Family Dollar in which he alleged that he had been constructively discharged from his employment with Family Dollar on February 12, 2014.    In his letter, Mr. Araujo also informed Family Dollar of his intent to “file a complaint with the Rhode Island Human Rights Commission” because, as Mr. Araujo alleged, Family Dollar had discriminated against him on the basis of an illness completely unrelated to his workers’ compensation injury.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 18,  .. D.C.:    WMATA v. Nash-Flegler  ..  Albert Nash-Flegler exited a train at Washington, DC Metro Transit Authority WMATA’s Deanwood station late one December night. He immediately slipped and fell on ice that had accumulated on the platform. Although WMATA had placed one yellow warning cone on the platform near the escalator, Nash-Flegler did not see it prior to his fall. Nash-Flegler sued WMATA, claiming he was injured due to WMATA’s negligent failure to:   (1) maintain the platform by keeping it free of ice, and   (2) properly warn passengers of slippery conditions on the platform.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 18,  .. WVSC:    Progressive v. Brehm and Hess  ..  Christine Brehm and Amber R. Hess were injured when another driver crashed into the Toyota Camry in which they rode, a rental vehicle operated by Susan Bindernagel.    Brehm and Hess sought coverage under Bindernagel’s underinsured motorist (UIM) coverage. Bindernagel’s insurer, Progressive Max Insurance Company, denied coverage to Brehm and Hess because the rented Camry was not a “covered auto” under the policy.    Brehm and Hess filed suits for declarations of coverage and Progressive counterclaimed.    The circuit court granted summary judgment in favor of Brehm and Hess and against Progressive, finding that because they had been Bindernagel’s guest passengers in the rented Camry when the crash occurred, Brehm and Hess were entitled to payment under the Bindernagel UIM coverage.       On appeal, Progressive argues that clear statutory language and the terms of Bindernagel’s UIM coverage mandate reversal of summary judgment in favor of Brehm and Hess and entry of summary judgment in favor of Progressive.  ..  COURT DECISION:   (.pdf)   (.html)


♦       Apr 14,  .. CCA:    Doe v. Anderson  ..  Daniel Schafer, a teacher at a high school in the Anderson Union High School District (District), had a sexual relationship with one of his students, plaintiff Jane Doe, which included sexual activities in his classroom.    Jane Doe sued the District, principal Carol Germano, and superintendent Tim Azevedo for negligent hiring and negligent supervision.    We refer to the defendants collectively as the District, except when being more specific is necessary to the discussion.    The trial court granted the District’s motion for summary judgment and entered judgment in favor of the District, finding that there was no evidence the District knew or should have known that Schafer posed a risk of harm to students.       Jane Doe now contends the trial court erred by granting summary judgment because the District had a duty to supervise and monitor Schafer and Jane Doe and whether the District breached its duty to Doe is a question of fact for the jury.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 14,  .. ICA:    Harper v. State of Iowa  ..  Ramon Harper was convicted of attempted murder, willful injury, going armed with intent, and flight to avoid prosecution after he beat a man at a convenience store that had multiple surveillance cameras.    According to Harper, the plan at trial was to argue “it wasn’t me.”    But in defense counsel’s closing argument, counsel conceded: “That was Mr. Harper. There’s no doubt about it and we agree to that.”    In his application for postconviction relief, Harper claimed this concession deprived him of his right to control his own defense at trial.    He additionally claimed that   (1) the composition of the jury panel violated his right to a jury drawn from a fair cross-section of the community;   (2) the State engaged in purposeful racial discrimination in jury selection; and   (3) his trial counsel was ineffective.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 14,  .. 5th Cir.:    Baker v. Wal-Mart  ..  Baker sought to purchase four tires from a Wal-Mart store in Gulfport, Mississippi on July 5, 2018.    While replacing tires on Baker’s car, Wal-Mart employees noticed that one of the rims on Baker’s car was broken.    The Wal-Mart store did not sell rims and therefore one tire was replaced with a donut spare tire.    Baker alleges that it was the Wal-Mart employees who broke the rim, and that the Wal-Mart employees failed to repair or replace the rim for discriminatory reasons.    Following the dismissal with prejudice of several of Baker’s claims, the district court granted Wal-Mart summary judgment with respect to Baker’s remaining claims for negligence, gross negligence, premises liability, failure to train/supervise, intentional infliction of emotional distress, negligence per se, fraud, and general discrimination.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 14,  .. FDCA:    Palm Beach  v. Groover  ..  Groover brought a one-count complaint against the School Board under the Florida Public Sector Whistleblower’s Act. . He alleged that he was demoted from his position as an assistant principal to a teaching position by the principal of Boynton Beach High School in retaliation for his participation in an investigation by the School Board’s Office of Inspector General (“IG”).    The IG investigation concerned (1) a semi-pro basketball team’s lease of the school’s gym for basketball games at a reduced rate by using the non-profit certificate of an unrelated entity and (2) the team’s use of the gym without a lease.    Groover’s position was that the principal falsely accused him to cover up his own neglect, that the principal made him a scapegoat, and that he was punished for telling the truth in the IG investigation.    The jury’s verdict found that the School Board demoted Groover because he participated in the IG investigation on January 15, 2015.    The jury awarded him $140,000 for lost wages and $30,000 for mental anguish. In a thoughtful ruling, the trial court denied the School Board’s post-trial motion for a directed verdict, or in the alternative, for a new trial.       Here ... The School Board appeals a final judgment entered after a jury verdict in favor of Gary Groover.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 14,  .. 10th Cir.:    Isaacs v. Konawa  ..  On the evening of March 8, 2019, Joseph Scoggins, coach of the Konawa Junior High School softball team, was driving a school bus on a two-lane road with six student-athletes as the team returned from a softball game in Okemah, Oklahoma.    The team members were all seated in the first three rows of the bus except for Rhindi.    Mr. Scoggins “permitted [her] to sit alternately on the steps on the bus and on the floor adjacent to the driver’s seat.”    As the bus traveled down the road, the students and Mr. Scoggins spotted an SUV on the wrong side of the road traveling towards them.    “Other drivers who had reported the erratic SUV had pulled over to avoid a collision.”    Mr. Scoggins, however, told the students that he “plan[ned] to avoid the accident” by veering into the left lane just before impact “so that the [oncoming SUV] would hit the back of the bus.”    As Mr. Scoggins steered the bus into the left lane, the SUV driver, John Tallbear, changed into the same lane. The two vehicles collided head-on.    Rhindi was in the bus’s stairwell, the “very spot” where the two vehicles collided. Id. She died in the crash.       Jessi Isaacs—Rhindi’s mother and personal representative of her estate—sued the bus driver, Joseph Scoggins; the Konawa Public Schools, and the Board of Education.    Nathan Isaacs and Jerome Snider, fathers of Jaylyn and Lilly, sued the same defendants for their daughters’ injuries.  ..  COURT DECISION:   (.pdf)   (.html)


♦       Apr 13,  .. 11th Cir.:    Smith v. Army  ..  Ms. Smith was working as a civilian employee in the U.S. Army Medical Command when, late in the spring of 2012, she began experiencing health problems. She decided to seek early retirement under the federal government’s Voluntary Early Retirement Authority, but withdrew her application when she learned that she would not receive an incentive payment for retiring early. But her health problems did not subside.    In June 2012 her central retinal vein became occluded, and she went on sick leave until August 1, 2012. She also requested and took additional leave under the Family Medical Leave Act—leave that the Army eventually approved retroactively.    While Smith was on leave, and without her knowledge, the Army filed and then approved an early retirement application on her behalf. She wanted to keep her job, though, so she withdrew the application on August 10 and returned to work on August 15.    But she continued to struggle. After her first day at work using the computer, her eyes hurt so much that she called in sick the next day. She continued to experience health problems over the next month, and on September 19, applied again for early retirement.    She also asked for a job that did not involve looking at computers all day.    The Army said no such job was available. The Army also denied her request to withdraw her early retirement application on the ground that she had signed a document saying that she would not withdraw.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 12,  .. TNWC:    Scruggs v. AMAZON  ..  Ms. Scruggs felt a pop and pain in her left knee while working for Amazon on April 9, 2021, but did not notify Amazon about her injury at the time. Instead, she finished her shift, self-treated her knee, and continued working for days without seeking authorized medical treatment.    Three weeks later, Ms. Scruggs injured her left knee again after slipping on a wet substance on the floor at work on April 30. After the April 30 incident, she notified her supervisor about both incidents.    In response, Amazon provided a panel of physicians, from which Ms. Scruggs selected Dr. Frederick Wolf.    Dr. Wolf ordered an MRI and placed Ms. Scruggs on sedentary duty.    Ms. Scruggs asks the Court to order Amazon to authorize the surgery recommended by Dr. Wolf. To do so, the Court must determine whether Ms. Scruggs is likely to prevail on the issue of whether her alleged injury arose primarily out of and in the course and scope of her employment.    She must show, “to a reasonable degree of medical certainty that it contributed more than fifty percent (50%) in causing the . . . disablement or need for medical treatment, considering all causes.” “Shown to a reasonable degree of medical certainty” means that, in the opinion of the treating physician, it is more likely than not considering all causes as opposed to speculation or possibility.    Ms. Scruggs also seeks temporary disability benefits. To prove entitlement to these benefits, she must show (1) total disability from working as the result of a compensable injury; (2) a causal connection between the injury and the inability to work; and (3) the duration of the period of disability.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 12,  .. FLRA:  Treasury v. NTEU  ..  In 2018, the Union filed a grievance on behalf of all visually-impaired bargaining‑unit employees alleging violations of Sections 501 and 508 of the Act, and the anti-discrimination provisions of the parties’ agreement. The Union filed its grievance under Article 42 of the parties’ agreement (Article 42).     The Agency denied the grievance and the parties proceeded to arbitration.     At arbitration, the Agency filed a motion to dismiss the grievance on substantive‑ and procedural-arbitrability grounds. According to the Agency, the Union’s claims arising under Section 508 of the Act were inarbitrable because the Act provides the exclusive administrative process for resolving such claims. The Agency also argued that the grievance was deficient because it did not satisfy the pleading requirements, contained in Article 42, for a national institutional grievance.     In this case, we reiterate that the Authority will defer to an arbitrator’s interpretation of a negotiated grievance procedure unless that interpretation is irrational, unfounded, implausible, or in manifest disregard of the parties’ agreement.  ..  FLRA DECISION:   (.pdf)   (.html)

♦        Apr 11,  ..  No New Cases To Post Today.     Cases on passover, easter, spring break.

♦        Apr 8,  ..  No New Cases To Post Today.     Cases on passover, easter, spring break.

♦        Apr 7,  ..  No New Cases To Post Today.     Cases on passover, easter, spring break.

♦        Apr 6,  ..  No New Cases To Post Today.     Cases on passover, easter, spring break.

♦       Apr 5,  .. TN WC:    Merritt v. Flextronics  ..  Mr. Merritt worked for Flextronics as a computer repair technician. In 2020, Flextronics had an influx of business that caused Mr. Merritt to work many extra hours. He described working up to twelve hours per day, seven days a week.    Mr. Merritt said this increased workload caused pain in his hands from using a screwdriver to remove thousands of screws on the computers he repaired.    Mr. Merritt first noticed the pain on July 6. It worsened the next week and, by the third week, became so bad that he felt he needed medical attention.    He told his supervisor about his pain; Flextronics contended he did not say it was work-related.    Mr. Merritt ultimately sought treatment with orthopedic surgeon Dr. Christian Fahey, whom he first saw on July 28, 2020. Dr. Fahey recorded that Mr. Merritt had pain in his hands for the last six months, but it had gotten severe in the last two weeks. Mr. Merritt related his pain to his work. Dr. Fahey diagnosed possible tenosynovitis and recommended physical therapy.    ...    Mr. Merritt requested permanent disability and medical benefits for injuries to his hands. Flextronics denied his claim.    COURT DECISION:   (.pdf)   (.html)

♦       Apr 5,  .. 5th Cir.:    Davis v. Dollar General  ..  Ms. Davis alleges that she was injured by the doors at two different Dollar General stores in Mississippi.    Davis alleges that she was injured in February 2019 when a manual push door at a Dollar General store jammed on her arm.    Ms. Davis filed a customer injury claim with Dollar General.    This claim was denied as false after a Dollar General Claims Representative reviewed surveillance footage demonstrating that Davis walked through the door without issue.    Davis also alleges that she was injured by an electric-powered door at a different Dollar General store in 2020.    She again filed a customer injury claim; this claim was also denied as false after a different Dollar General Claims Representative reviewed surveillance footage demonstrating that Davis walked through the door without issue.    Dollar General also sent a letter to Davis, informing her that she was banned from all its stores and no longer an invitee to any of its stores.    Proceeding pro se, Davis sued Dollar General and the two Claims Representatives, seeking five trillion dollars in damages.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 5,  .. 8th Cir.:    Muldrow v. St. Louis  ..  Appellant Sergeant Ms. Muldrow of the St. Louis Police Department (Department) brought Title VII claims against the City of St. Louis and state law claims against both the City of St. Louis and Captain Michael Deeba of the Department.    In 2008, Sergeant Ms. Muldrow was transferred from her position as a patrol detective to the Department’s Intelligence Division. At various points during her time in the Intelligence Division, Sergeant Muldrow worked on public corruption and human trafficking cases, served as head of the Gun Crimes Intelligence Unit, and oversaw the Gang Unit.    In 2016, while she was still assigned to the Intelligence Division, the Federal Bureau of Investigation (FBI) deputized Sergeant Muldrow as a Task Force Officer (TFO) for its Human Trafficking Unit.    As a TFO, Sergeant Muldrow had the same privileges as an FBI agent: access to FBI field offices and databases, the opportunity to work in plain clothes, access to an unmarked FBI vehicle, authority to conduct human-trafficking related investigations outside of the St. Louis city limits, and the opportunity to earn up to $17,500 in annual overtime pay.    In 2017, Interim Police Commissioner Lawrence O’Toole replaced the Commander of Intelligence, Captain Angela Coonce, with Captain Deeba. Shortly after assuming his new role, Captain Deeba began making personnel changes.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 5,  .. TSC:    Von Dohlen, et al v. City of San Antonio  ..  The petitioners in this case allege that the San Antonio City Council voted to prohibit the opening of a Chick-fil-A in the San Antonio airport based, at least in part, on Chick-fil-A’s contributions to religious organizations that councilmembers found objectionable.    In March 2019, the San Antonio City Council considered whether to approve a proposed concession agreement pursuant to which concessionaire Paradies Lagardère would contract with various vendors who would operate in the San Antonio International Airport.    The agreement as initially proposed contemplated the installation of a Chick-fil-A in a 985-square-foot space near Gate A6.    This proposal drew opposition at the March 21, 2019 City Council meeting. According to the petition, Councilmember Roberto Treviño objected to the concession agreement’s inclusion of Chick-fil-A and “announced that he wanted Chick-fil-A banned from the San Antonio airport.”    He elaborated: “The inclusion of Chick-fil-A as a national brand tenant is something I cannot support.    The petition also alleges that, at that same meeting, Councilmember Manny Pelaez seconded Treviño’s motion, citing Chick-fil-A’s history of “funding anti-LGBTQ organizations.” Petitioners allege Pelaez “explicitly stated that he wanted Chick-fil-A banned from the airport because of its donations to certain religious organizations.”  ..  COURT DECISION:   (.pdf)   (.html)


♦       Apr 4,  .. SCI:    Iowa v. McCalley  ..  On January 13, 2020, Boone police officer Daniel Lynch observed Ms. McCalley driving a green pickup truck.    Officer Lynch was able to identify McCalley as the driver by running a driver’s license photo of her using his in-car computer. Dispatch reported McCalley had a barred Iowa license as a habitual offender.    After Ms. McCalley pulled into a parking lot and entered a restaurant, Officer Lynch arrested her, and the State subsequently charged McCalley with operating a motor vehicle while license is barred as a habitual offender, an aggravated misdemeanor.    McCalley entered a written guilty plea to the charge on October 29, and the district court held a sentencing hearing on December 8.    At the sentencing hearing, counsel for Ms. McCalley acknowledged McCalley “does have a little bit of criminal history,” citing “an OWI and a couple of other driving charges that date back to 2007” in addition to her license being barred “due to nonpayment of fines and child support over the last couple of years.”    The defendant, Ms. McCalley, seeks review of her sentence and restitution order after the district court imposed a six-day jail sentence and ordered her to pay restitution costs for operating a motor vehicle while her license is barred as a habitual offender.    The defendant, Ms. McCalley, challenges the district court’s discretion to sentence her to jail and the constitutionality of this sentence, claiming the district court improperly considered her struggling financial situation in imposing the jail sentence over her requested sentence of a fine or probation.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 4,  .. KCA:    State v. Smith  ..  In July 2018, Smith was hired to work as teller for EquiShare Credit Union in Wichita. After a two-week training period, Smith went to work in EquiShare's main office. Smith's employment at EquiShare did not go well and did not last long.    He was ultimately fired on August 31, 2018, after he approached another employee and asked to borrow money, which was a violation of EquiShare's employment policies.    There had also been several instances during his employment in which there were inconsistencies in Smith's drawer balance.    EquiShare's senior vice president, Freda Reynolds, reviewed all of Smith's register receipts for any withdraws that did not have a customer's signature and found three additional transactions.    Reynolds looked at security footage from the time of the transactions and found neither Nash nor the other affected customers were present at the time of the withdraws.    In total, Reynolds determined Smith withdrew $3,200 from the four affected accounts without the account holders' authorization.    The State charged Smith with one count of felony theft and one count of unlawful acts concerning computers. A jury convicted him as charged.    At sentencing, the district imposed a 14-month prison sentence but placed Smith on probation from that sentence for 12 months.    The district court also ordered Smith to pay $4,100 in restitution, to which Smith did not object.    Smith timely appeals.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 4,  .. 7th Cir.:    Beaulieu v. NewQuest  ..  Beaulieu, who identifies herself as African-American, worked in customer service at NewQuest, a healthcare management company.    She contends that she was racially harassed soon after she started working at the company in 2014. At that time, she reported to Juan Salas, a Hispanic man. According to Beaulieu, Salas called her stupid, yelled at her in front of peers, and sat so close to her at meetings that his spit landed on her as he talked.    When she later reported to a new supervisor, Beaulieu says that Salas still scolded her before her peers and chastised her about unscheduled breaks.    (Beaulieu also says that a director touched her back, criticized her, and may have prank- called her.) Deeming Salas a racist, Beaulieu complained to management about him.    Relatedly, NewQuest reprimanded Beaulieu for skipping work entirely on a day when, because of inclement weather, NewQuest allowed workers who showed up to leave early.    Beaulieu resigned in March 2016.    Before she resigned, she had missed work for an approved medical appointment; NewQuest mistakenly recorded the absence as a “no-show” and fired her. It quickly acknowledged its mistake and restored her employment status.    Shaken by the experience, Beaulieu resigned anyway.    Beaulieu sued NewQuest alleging race discrimination and retaliation.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 4,  .. 7th Cir.:    Swanson v. PNC Bank  ..  Swanson wanted to help her nephew buy a car from a Toyota dealership, so she co-signed his application for financing. The dealership’s credit department offered a loan from Toyota Financial and also submitted the loan application to two outside lenders, one of which was PNC. Swanson and her nephew purchased the car that day with the loan from Toyota Financial.    A few days later, Swanson received a letter from PNC notifying her that her loan application was denied. PNC listed problems with her credit history, including delinquencies, a high ratio between the balance and limit on her other accounts, and the novelty of other credit accounts. The letter noted that Swanson’s credit score was 787.    Swanson believed the letter inaccurately described her credit history, and so she contacted PNC. She was told that a letter denying a joint application lists problems with both applicants’ credit histories. Swanson doubted this explanation because her letter did not contain her nephew’s name. PNC followed up with a letter explaining that joint applicants receive copies of the same denial letter, and PNC assumes “each applicant will know whether the reason(s) are specific to them or the co-applicant.”    Swanson sued the bank for racial discrimination under the Equal Credit Opportunity Act.    She alleged that, given her high credit score and stable finances, PNC withheld credit only because she and her nephew listed home addresses with a zip code where a majority of the residents are Black.  ..  COURT DECISION:   (.pdf)   (.html)


♦       Apr 1,  .. D.D.C.:    Diaz v. Coddi-Wes  ..  Plaintiff David Sanchez Diaz received an hourly wage for his work as a food runner at a restaurant called Rebellion.     Diaz began working at Rebellion in 2016. At that time, his duties included “bringing food from the kitchen to seated customers, cleaning tables, interacting with guests, [and] communicating with front-of-the-house staff.” worked in that role for approximately twenty to thirty hours each week and received an hourly wage that gradually rose to $11.50. It is undisputed that Diaz worked those hours as an employee of the restaurant, as that term is used in the FLSA.     In 2017, Diaz began to clean Rebellion after hours for the flat salary of $500 per week. In the spring of 2019, Diaz began to clean Rebellion on the Pike as well, for the flat salary of $500 every two weeks. The defendants argue that, although Diaz worked as an employee during his food running shifts, he worked as an independent contractor during his janitorial duties. Diaz was fired from his food running and janitorial roles at both restaurants on November 3, 2019.     Diaz filed the instant action on November 22, 2019.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 1,  .. D.D.C.:    Bethel v. Rodriguez  ..  Plaintiff Larry Bethel states in his complaint that, one month after purchasing an air conditioning unit from Home Depot, he learned that a warrant for his arrest had been issued for stealing the product.    Bethel turned himself in to the Metropolitan Police Department (“MPD”) and the warrant was never served.    He then filed this suit against Defendants Jose Rodriguez, the police officer that secured the warrant for his arrest, the MPD, Nelson Benton, an asset protection specialist for Home Depot, and Home Depot U.S.A. alleging violations of his Fourth Amendment rights, among other claims.    Additionally, he claims that “as a direct and proximate result of Defendants’ wrongful conduct, [he] suffered significant emotional pain, suffering, fear and shame.”  ..  COURT DECISION:   (.pdf)   (.html)

♦       Apr 1,  .. 3rd Cir.:    Vanhook v. Cooper Health  ..  VanHook worked at Cooper Health System (“Cooper”) from 2010 until 2018 as a patient representative.    VanHook experiences depression, anxiety, panic attacks, and related symptoms, and her son experiences attention deficit hyperactivity disorder, severe oppositional defiance disorder, chronic depression, and anxiety. VanHook says that her son requires constant supervision and medical care.    Starting in 2013, Cooper granted VanHook intermittent leave under the FMLA to care for him when he was not in school or otherwise supervised. VanHook took FMLA leave totaling 69 days in 2015, 90 days in 2016, and 106 days in 2017.    Cooper hired a firm to conduct surveillance on VanHook over three days when she was on FMLA leave.    On February 12, 2018, VanHook stated that her son was not having a “good day,” but she was observed driving to Dunkin’ Donuts and Walmart, picking up her other son from school, and exercising at L.A. Fitness, all without her son. There was no indication that a tutor or therapist was temporarily at the house, permitting her to leave briefly.    On February 19, 2018, she was observed at L.A. Fitness, ShopRite, and Target with her other son, again, with no indication of a need to care for her child.    On March 9, 2018, VanHook took FMLA leave for the stated reason that she needed to take her son to doctor’s appointments, but that son was observed boarding a school bus, and VanHook was observed driving her other son to a medical appointment and then to two stores.    On March 21, 2018, Mannino, Sentel, and Tracy met with VanHook regarding her use of FMLA leave.    When Sentel confronted VanHook with the surveillance footage and asked if she wanted to view it, VanHook refused and tried to turn in her badge.    Cooper terminated VanHook “for abusing FMLA time.”    VanHook sued Cooper, alleging retaliation in violation of the FMLA and discrimination, harassment, and retaliation in violation of the ADA and NJLAD.  ..  COURT DECISION:   (.pdf)   (.html)


♦       Mar 31,  .. 10th Cir.:    Horal v. IHR, Inc.  ..  IHR employs individuals who work at Mike Ward Maserati and Mike Ward Infiniti, car dealerships located in Highlands Ranch, Colorado. Both dealerships are owned by Michael Ward.    On August 29, 2016, Robert Thumel, a sales manager at Mike Ward Maserati, extended an offer of employment to Ms. Horal on behalf of IHR.    Thumel decided to hire Horal primarily because of her prior experience. On September 7, 2016, Horal obtained a temporary salesperson license and began selling vehicles for IHR.    IHR convened all sales staff from both Mike Ward dealerships each Friday morning for a mandatory sales meeting led by Peter Kim, the general manager of Mike Ward Infiniti. One such meeting occurred on October 7, 2016.    At that meeting, Kim hosted a “Family Feud”-style teambuilding game during which IHR sales employees guessed the most popular responses to various questions.    The final question of the game asked: “Name a reason that your boss would give you a raise (other than that you work hard).”    Horal answered by saying “get more education, get a certificate or degree,”    Kim then revealed the top answer to be “dating your boss.”    The “dating your boss” answer left Ms. Horal feeling uncomfortable. She was concerned that this “top answer” was meant to suggest that female sales consultants such as herself should sleep with their bosses to get ahead.       Thus, on October 10, 2016—the Monday following the sales meeting—Horal approached Ward to complain about the “dating your boss” answer.       Ms. Horal’s sales were the worst at Mike Ward Maserati over the two months that Horal had worked there—even worse than the sales of the two other new consultants hired during that time, who had no prior sales experience.    To make matters worse, Horal had a history of not following dealership protocols, and, based on his observations, Thumel felt Horal “lacked energy, was not engaged[,] and was often on her cell phone.”    For these reasons, Thumel says, he decided to terminate Horal’s employment.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 31,  .. CCA:    People v. Valladares  ..  On January 3, 2019, about 10:40 p.m., Cherisa Edwards was driving her Nissan Murano on Highway 14 when she noticed traffic merging due to construction on the road ahead. As she slowed down and tried to merge with other traffic, she was hit from behind by appellant’s black SUV. Appellant later explained that he applied his brakes but they locked up and he was unable to stop soon enough to avoid the collision. The collision generated enough force to deploy the airbags in appellant’s vehicle, which caused abrasions on his arms.       Edwards called 911 to report the accident. CHP Officers Veliz and Chapman, who had been working in the construction area, arrived at the scene in about five minutes. Both Edwards’s and appellant’s vehicles were in the middle lane and were blocking traffic. When the officers approached appellant’s vehicle, Officer Veliz noticed a large quantity of beer cans inside the rear storage area. Officer Chapman determined the vehicle was inoperable and told appellant to walk to an area on the median.       CHP Officer Mark Recalde and his partner arrived at the scene before appellant’s vehicle was moved. After their patrol car was parked, Officer Veliz told Officer Recalde that he had observed beer cans in appellant’s SUV. Officer Recalde joined appellant, who was in the center median, and spoke with him about the accident. He initially spoke with appellant in a mixture of Spanish and English, and his recording device was not activated at that time.       Appellant told Officer Recalde he was driving home from his job in Burbank. Officer Recalde described appellant as nervous and standoffish, with poor balance, mumbled speech, and red and watery eyes. At the preliminary hearing, the officer testified he first smelled alcohol when appellant was inside his vehicle looking for his registration and insurance. At trial, the officer testified he smelled an odor of alcohol on appellant from several feet away.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 30,  .. D.C. Cir.:    Steele v. Lloyd Austin (DOD)  ..  The Department of Defense (DOD) hired Appellant Mr. Steele to serve as a professor at the National Defense University’s College of International Security Affairs.    Dr. Steele was 47 years old at the time. During his probationary first year, the College decided to terminate Dr. Steele’s employment.    Dr. Steele filed suit in the district court, asserting that DOD terminated him because of his age in violation of the Age Discrimination in Employment Act of 1967 (ADEA),    The district court granted DOD’s motion for summary judgment.    We reversed on appeal, holding that Dr. Steele had created genuine disputes about facts material to the question of whether age was the reason for his discharge.    On remand, the district court conducted a four-day bench trial on Dr. Steele’s ADEA claim.    Following trial, the court found that Dr. Steele had failed to carry his burden of proving by a preponderance of the evidence that age was the but-for cause of DOD’s decision to terminate him.    The district court thus entered judgment for DOD.    Dr. Steele now appeals.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 30,  .. 6th Cir.:    Hammond-Beville v. Landis  ..  Ms. Hammond-Beville serves as a sergeant in the Metropolitan Nashville Police Department (“MNPD”).    She alleges that three of the defendants- appellants, fellow MNPD Officers Kathy Morante, Ron Carter, and Jason Sharpe, knowingly subjected her to a baseless internal-affairs investigation on false charges of child abuse. After those charges were dismissed, she sued the MNPD Defendants for the Tennessee tort of malicious prosecution.    The MNPD Defendants moved to dismiss her complaint for failure to state a claim and on qualified-immunity grounds, arguing that an internal-affairs proceeding cannot constitute malicious prosecution or that, if it may, no Tennessee case had clearly established that proposition at the time of the alleged misconduct.    The district court rejected defendants’ arguments.    We affirm.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 30,  .. OCA:    Anderson v. Bright Horizons  ..  Bright Horizons hired Ms. Anderson to work as an infant room teacher in its childcare center at Riverside Methodist Hospital ("the Riverside center"). At various times while working at the Riverside center, Anderson developed symptoms of a sinus infection and visited a medical provider for treatment.    Due to illness, Anderson was absent from work on April 10, 2017; April 25 and 26, 2017; May 18, 2017; May 24, 2017; June 20, 2017; and June 28 and 29, 2017.    After each absence, Anderson provided her supervisor, Carrie Delaney, with a note from a medical provider excusing her absence.    On Monday, July 10, 2017, Anderson called Delaney to report that she had a respiratory infection and would not be attending work.    During that telephone conversation, Anderson told Delaney, "I do have a congenital heart defect and I found out today that that may be a reason why my immune system may not be as built up."    This conversation constituted the first time Anderson had disclosed her congenital heart defect to Delaney.    On July 20, 2017, Delaney sent Anderson a letter informing her that Bright Horizons had determined that she had voluntarily resigned her job because she had not reported to work and did not call in to report her absence on July 14, 17, and 18, 2017.    The letter further notified Anderson that Bright Horizons accepted her resignation.    Anderson filed suit against Bright Horizons and Delaney.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 30,  .. 5th Cir.:    Kendricks v. MCA  ..  Ms. Kendricks worked for Methodist for eleven years, from 2007 until 2018. In May 2018, Kendricks underwent surgery and then took unpaid leave under the Family and Medical Leave Act, 29 U.S.C. § 2601. While on leave, Kendricks applied for two other jobs within Methodist and was not selected for either position.    Both individuals hired for the positions were under forty and not African American. While on leave, Kendricks also filed a complaint with Methodist regarding a possibly racially discriminatory hiring practice suffered by one of her coworkers.    In July 2018, while she remained on leave, Methodist fired Kendricks for refusing to accept managerial decisions and refusing to “work appropriately with others[.]” Kendricks had allegedly been interfering with patient-care and “stirring the pot” while on leave. In response, Kendricks filed suit in federal district court in September 2019.    The district court ultimately discerned six claims:    (1) Methodist discriminated against Kendricks based on her age, race, or disability by not hiring her for the jobs she applied for in 2018 or another job she applied for in 2015;    (2) Methodist retaliated against her for reporting potential discrimination;    (3) her termination while on leave violated the Family Medical Leave Act;    (4) Methodist violated Texas labor laws; and    (5) Methodist’s tortious conduct merited punitive damages.  ..  COURT DECISION:   (.pdf)   (.html)


♦       Mar 29,  .. 6th Cir.:    Sims-Madison v. Dana Commercial  ..  Ms. Sims-Madison, a black woman, began working as a material handler for Dana, a heavy-duty axle manufacturer, in 2003.    She was a member of a local union. Sims-Madison had disciplinary issues throughout her tenure with Dana.    In July 2017. Ms. Sims-Madison was suspended for one day after employees complained that she had “spoken disrespectfully” to them, allegedly hurling expletives in their direction. Sims-Madison disputed that she had uttered most of the expletives.    A little over a year later, multiple employees complained of similar misconduct by Ms. Sims- Madison.    David Greenham, Dana’s Human Resources Manager, met with Sims-Madison and the Union president to discuss the complaints. During the meeting, Sims-Madison told Greenham that she was going to work for the company for five more months before retiring.    Although Ms. Sims-Madison again disputed some of the allegations, Dana suspended her for five days “with intent to discharge” effective September 7, 2018.    The suspension letter explained that Sims-Madison had “been warned in the past about treating others in a respectful manner and yet employees are still filing formal complaints about your disrespectful behavior and the language you use and direct at them.”    Greenham later reduced the suspension to one day and a final warning, “after an investigation, listening to her side of the story, considering her 15 years seniority and the fact that she intended to retire in a few months.”    Greenham warned Sims-Madison that Dana would immediately fire her if she engaged in similar behavior again.    Sims-Madison was ultimately fired.    Sims-Madison says that her age and race were the real motivations for her firing, so she sued Dana.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 29,  .. D.D.C.:    Doe v. Howard University  ..  On January 7, 2017, Plaintiff Jane Doe alleges that she was raped by a Howard University faculty member, Mr. Eastmond.    Ms. Doe was in her final year of law school at Howard UniversitySchool of Law. At the time, she was residing in Vie Towers—then known as University Town Center Student Apartments—in Hyattsville, Maryland.    Doe lived in those apartments throughout law school. The school pointed it out to her as a place where graduate students live. Indeed, its resident population consisted almost entirely of undergraduate and graduate students at local universities and colleges, like Howard. The Apartments even ran a free shuttle to and from the Howard campus.    In 2015, Ms. Doe met Mr. Eastmond for the first time, running into him in a common area of the building. He later told her that he was a lecturer and professor at Howard, employed in the Department of Physics,    Since he also lived at the University Town Center Student Apartments, the two would often pass each other in the halls and engage in conversation.    On January 6, 2017, Eastmond invited Doe to his apartment.    After Eastmond gave her fruit and water, Doe found that she could not move, and Eastman proceeded to rape her.    Ms. Doe escaped early the next morning, after Eastmond gave her a contraceptive pill and offered her money to stay quiet. He called her later that morning, offering her more money to stay quiet and to have sex with him in the future.    Later that day, she called Howard University’s Violence Prevention Hotline to report the assault. Upon learning of the assault, the Director of Howard’s Interpersonal Violence Prevention Program, Dr. Akosoa McFadgion, drove to Doe’s apartment building to take her to the hospital.    The hospital performed a forensic exam. After the examination concluded, McFadgion and the campus police helped move Doe to Slowe Hall, an undergraduate dormitory, “in order to ensure [Doe’s] wellbeing and safety.”    The next day, Doe filed a police report with the Hyattsville Police Department and gave a formal statement to law-enforcement authorities.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 29,  .. 8th Cir.:    Gustafson v. Bi-State  ..  Bi-State is a government entity that provides public rail, bus, and paratransit services in Missouri and Illinois pursuant to an interstate compact. Gustafson has relied on Bi-State’s fixed-route bus and rail service as his primary mode of transportation in the St. Louis metropolitan area since 1997.    Although Gustafson is blind, he can independently use Bi-State’s public transportation system with the assistance of his guide dog or a cane. By his own estimate, Gustafson typically used the Bi-State bus system between 30 to 100 times, and the rail system between 20 to 50 times, in any given year.    In November 2006, Gustafson filed a complaint with the Commission alleging Bi-State denied him access to its services in violation of the Missouri Human Rights Act (“MHRA”).  ..  COURT DECISION:   (.pdf)   (.html)


♦       Mar 28,  .. MCA:    Smith v. HHS  ..  Plaintiff, Ms. Smith was diagnosed with multiple sclerosis (MS) in 2004 and began working for defendant, Department Of Health And Human Services (HHS) as an eligibility specialist in 2007.    In 2015, Ms. Smith took a medical leave of absence related to her MS and, after being off work for about a year and a half, she returned to her job in July 2016. During her first six months back at work, Ms. Smith was assigned a limited caseload. Plaintiff’s six-month review reflected that she had satisfied most, but not all, of her performance objectives.    Following that six-month review, plaintiff was assigned a full caseload.    In March 2017, a new supervisor, Daryl Showers, was appointed to oversee Ms. Smith’s position.    Ms. Smith brought suit against HHS following her termination from employment. Plaintiff alleged that HHS engaged in disability discrimination in violation of the Persons with Disabilities Civil Rights Act.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 28,  .. D.D.C.:    Jackson v. Starbucks  ..  On April 24, 2018, at a few minutes past 12 p.m., Mr. Jackson entered the Starbucks on the George Washington University Campus in Washington, D.C.    Mr. Jackson was a regular customer of that particular Starbucks.    A Starbucks employee who was a witness that day recalled that Mr. Jackson “looked a little beat up or grungy” and had “a look, like he’s a drug user.”    After entering the store, Mr. Jackson walked to the front counter and selected two bags of packaged cookies. The video surveillance footage shows him slowly selecting the cookies and holding them in full view before walking toward the end of the line and away from the exit.    The cashier made a comment implying that he intended to steal the cookies.    A verbal disagreement ensued, the manager became involved, and another Starbucks employee told Mr. Jackson to leave and pushed him to the ground—causing Mr. Jackson to lose consciousness and suffer injuries.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 28,  .. D.D.C.:    Smith v. Athena Construction  ..  Athena Construction. is located in Triangle, Virginia. Over the years, Athena has secured various preferential contracting certifications from the Small Business Administration.    They include designations as   (1) a woman- owned small business,   (2) a small business owned by a service-disabled veteran, and   (3) a Historically Underutilized Business Zone (“HUBZone”) small business.    Plaintiff-Relator Mr. Smith (“Relator”) served as Athena’s Director of Operations and as a Project Superintendent from 2011 to 2016. Mr. Smith brings this case under the False Claims Act, alleging that Athena engaged in two fraudulent schemes.    First, Mr. Smith contends that Athena obtained and maintained its HUBZone certification through materially false representations about its eligibility for the program, enabling it to secure various government contracts.    Second, Mr. Smith claims that Athena and various prime contractors conspired to use Athena’s small-business certifications to create a pass-through scheme whereby the prime contractors would “contract” with Athena to meet certain small-business set-aside requirements in exchange for a fee to Athena.    Athena, in fact, would do little or no work, and the work was actually performed by large subcontractors.    Smith also claims that Athena retaliated against him for filing this action.    Smith brought suit against Athena and some of the prime contractors with whom Athena allegedly conspired in the pass-through scheme.  ..  COURT DECISION:   (.pdf)   (.html)


♦        Mar 25,  .. 9th Cir.:    Ballou v. McElvain  ..  Julie Ballou, a police officer in Vancouver, Washington, scored high enough on the examination for promotion to sergeant to be eligible for promotion but was repeatedly passed over, including when she was highest on the promotion list.     James McElvain, the Police Chief who made the promotion decisions, instigated a series of investigations into Ballou’s reporting practices and refused to promote her while the investigations were pending.     Ballou sued, alleging that McElvain violated the First Amendment and the Equal Protection Clause of the Fourteenth Amendment by discriminating against her on the basis of sex in refusing to promote her and by retaliating against her for objecting to that discrimination.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Mar 25,  .. FLRA:  Prisons v. AFGE  ..  Before the start of each quarterly rotation, The Federal Bureau Of Prisons (the Agency) posts a roster of the available assignments in the Health Services Department (HSD) pursuant to the procedures outlined in Article 18 of the parties’ agreement.     Bargaining-unit nurses bid on their preferred posts in order of seniority, and the Agency uses these bids to assign nurses to fill the available posts. In addition to employing bargaining-unit employees, the Agency also receives medical services from Public Health Services (PHS) officers. These officers are not bargaining-unit employees and are not covered under the parties’ agreement.     On March 17, 2019, the Agency assigned a PHS officer in the HSD to a post listed on the roster used by the bargaining-unit nurses. Simultaneously, the Agency removed the post from the roster, preventing the bargaining-unit nurses from bidding on that post assignment.     On May 6, 2019, the Union filed a grievance alleging the Agency violated the parties’ agreement by removing the post. When the parties were unable to resolve the dispute, the Union invoked arbitration.  ..  FLRA DECISION:   (.pdf)   (.html)

♦        Mar 25,  .. 6th Cir.:    Singleton v. PSA Airlines  ..  PSA Airlines hired Singleton in 2018 to work as a flight attendant trainee. She began as a probationary, at-will employee. To become a full flight attendant—and to avoid termination—she had to complete PSA’s four-week training program.     Singleton began the training program on February 18, 2018. And just four days in, she had an in-class disagreement with an instructor, Billi Mayfield. After some back and forth in front of the class, Mayfield escorted Singleton to the office of Inflight Training Supervisor Jennifer Cameron. There the two exchanged complaints.     Mayfield complained about Singleton’s attitude and classroom demeanor, and Singleton complained about Mayfield’s uninvitedly “patting” Singleton’s hair on February 21.     Singleton never mentioned racial harassment or racial discrimination in her first meeting with Cameron. But she pulled Cameron aside later that day, and, without Mayfield present, she lodged two additional complaints.     In an email to Cameron and Roush on February 27, Mayfield accused Singleton of rolling her eyes in class. And on February 28, he reported “recurring issues with [Singleton’s] attitude.”     On March 1, 2018, four other people complained about Singleton’s behavior. Jennifer Cameron saw Singleton behave inappropriately during an evacuation drill, Instructor Lisa Wulff accused Singleton of disrupting her class, Instructor Morgan Fussinger complained about Singleton’s “unprofessional and unpleasant” attitude, and a student complained about Singleton “constantly making negative comments under her breath.”     Just as multiple instructors complained about Singleton’s behavior, multiple students complained about Mayfield’s conduct. On March 1, a Jewish student accused Mayfield of performing a Sieg Heil salute in class.     Another student accused Mayfield of telling anti-Catholic jokes and commenting on “white trash people.”     And, on March 8, an African-American student (Philip Duclas) accused Mayfield of making a racist comment. Mayfield allegedly told Duclas he was “so black” that all Mayfield could see were “his eyes and his teeth.”  ..  COURT DECISION:   (.pdf)   (.html)


♦        Mar 24,  .. 11th Cir.:    Minard v. Sam's Club East  ..  Gregory Minard, a 57-year-old African American man, became the manager of the Sam’s Club in Irondale, Alabama in 2003. During his fourteen years in the role Minard “routinely received raises, recognition for exceptional store performance, and positive annual reviews.”     Although he developed a strong record, it was not flawless; on at least two occasions Minard received disciplinary warnings from his manager for failing to ensure that his store was properly stocked and organized.     Along with overseeing in-store sales, Club managers like Minard were tasked with helping to facilitate large wholesale purchases by Club members.     Minard’s most notable success came in 2012 when he began selling french fries to distributors by the truckload.     Soon, Minard’s store was grossing over two million dollars annually in truckload sales.  ..  DECISION:   (.pdf)   (.html)

♦        Mar 24,  .. Fed. Cir.:    Oram v. MSPB  ..  On June 29, 2016, the Department of the Air Force told Mr. Oram that it had tentatively selected him for an Information Technology Specialist position. The Air Force advised Mr. Oram that he was eligible for a living quarters allowance but ultimately denied his request for one.     Mr. Oram was scheduled to enter duty on September 19, 2016. The Air Force allowed him to extend this date to October 3, 2016. Mr. Oram then informed the Air Force that he could not report for duty on October 3, 2016, be- cause he had to attend hearings for a labor dispute with his former employer—which Mr. Oram alleged he had told the Air Force about before it selected him for the position. The Air Force denied any further extensions and informed Mr. Oram that it would rescind his job offer if he failed to report on October     When Mr. Oram did not report for duty on that date, the Air Force withdrew its job offer.     On March 9, 2020, Mr. Oram filed an appeal with the MSPB.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Mar 24,  .. 5th Cir.:    Pimpanit v. Phumswarng inc  ..  Appellee Phumswarng, Inc. employed Appellant Pimpanit as a server at Thai Gourmet Restaurant from March 2017 to March 2018.     The restaurant is owned by Appellee Sawanya Phumswarng.     In late 2017 or early 2018, some employees began complaining of late pay and suspected Thai Gourmet was “tak[ing] money from the tips customers were leaving.”     Pimpanit was one of these employees. In February 2018, the group voiced their concerns to the manager, who asked them to write down their questions so she could consult with the owners. The employees provided a signed list of questions. About a week later, management met with the employees, but many felt their questions were still unanswered.     Pimpanit decided to take matters into her own hands by comparing her pay to the restaurant’s daily reports. These reports included a trove of data on tip collection, food sold, volume of cash sales, credit cards used, and how much each server sold. Pimpanit obtained the reports from a cashier and brought them home to compare the reports to her take-home pay.     Upon discovering Pimpanit took the reports off restaurant premises, Phumswarng fired Pimpanit.     In July 2018, seven former and current employees, including Pimpanit, sued Appellees in Texas state court, claiming breach of a fiduciary relationship under Texas law as well as violations of the Fair Labor Standards Act (“FLSA”) for unpaid minimum wages and overtime, withheld tips, and retaliatory termination of Pimpanit.     Pimpanit filed the present suit in federal court, asserting unlawful retaliation under the FLSA. She claimed she was fired for engaging in protected conduct, namely, “protesting Thai Gourmet’s illegal actions and obtaining the evidence to prove her allegations.”  ..  COURT DECISION:   (.pdf)   (.html)


♦        Mar 23,  ..  This Is A Bad Week For Case Selection.     Thin Pickings, Indeed.    

♦        Mar 23,  .. 2d Cir.:    Connolly v. NYC  ..  Mr. Connolly, an attorney for the Administration for Children’s Services (“ACS”) of the City of New York, claimed that the City unlawfully discriminated and retaliated against him [...] and that the City and the individual Defendants-Appellees also violated 42 U.S.C. and the NYC Human Rights Law.     Those claims were based on ACS’s transferring Connolly to a different unit, conducting a lengthy investigation of sexual harassment allegations made against him by a coworker, denying him promotion, suspending him for alleged unprofessional conduct during interactions with a contract agency’s employee in family court, and other actions short of termination that he viewed as adverse.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Mar 23,  .. FLRA:  AFGE v. ARMY  ..  After the parties executed a collective-bargaining agreement, the Agency head disapproved nineteen provisions under § 7114(c) of the Statute.     Subsequently, the Union filed a petition for review of thirteen disapproved provisions.     The Agency filed a statement of position (statement), and the Union filed a response to the Agency’s statement (response). The Agency did not file a reply to the Union’s response.         In this case, we consider the negotiability of several provisions disapproved by the Agency head under § 7114(c) of the Federal Service Labor-Management Relations Statute (the Statute).  ..  FLRA DECISION:   (.pdf)   (.html)

♦        Mar 23,  .. D.D.C.:    Lapotsky v. McCarthy  ..  Mr. Lapotsky was born with dual German American citizenship. In June 2015, Mr. Lapotsky applied for a position as a Traffic Management Specialist, and in September 2015, he was offered the position.     In October 2015, Mr. Lapotsky formally renounced his German citizenship and the Army requested that he provide documentation that he was no longer a German citizen.     In November 2015, Mr. Lapotsky was informed that the job offer was rescinded. He later learned that the reason the offer was rescinded was because “due to his citizenship status, he was allegedly an ‘ordinary resident’ of Germany” and thus ineligible for the position pursuant to applicable regulations.     Mr. Lapotsky alleges that the determination that he was an “ordinary resident” was based on the incorrect “assumption[] that all individuals with dual German American citizenship automatically [lose] their German citizenship when they join the U.S. military” and accordingly “results in a discriminatory policy against all individuals born with dual German American citizenship.”     The Army filed a Motion to Dismiss or in the alternative for Summary Judgment on April 23, 2020, to Dismiss.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Mar 21,  ..  No New Cases To Post Today.

♦        Mar 18,  ..  No New Cases To Post Today.

♦        Mar 17,  .. 7th Cir.:    Lange v. City of Oconto  ..  Ms. Lange was born deaf. She primarily communicates through ASL, with some ability to verbalize and read lips. She has two children, R. and B., who were minors at the time of the events that form the basis of this case. Her daughter, R., was seventeen, and her son, B., was fourteen. These children are not deaf, and Lange communicates with them using American Sign Language (ASL).     Ms. Lange brought this lawsuit asserting that the Cities discriminated against her in violation of the ADA and the Rehabilitation Act during interactions between Ms. Lange and the Cities’ police departments.     The proceeded to trial regarding four episodes (the “incidents”), which occurred from May 30, 2016, to February 3, 2017.     One of the incidents at issue occurred in Oconto; the other three occurred in Oconto Falls.     In each of these incidents, the police did not provide Ms. Lange with an ASL interpreter but instead relied on one of Lange’s minor children for interpretive services in some capacity. Lange alleged that during each incident she requested an interpreter or, alternatively, the need for an interpreter was obvious.     Because the Cities did not provide an interpreter, Lange contended, she could not effectively communicate with the officers involved.     The jury returned a verdict in favor of the Cities. The following facts reflect the witness testimony and documentary evidence introduced at trial.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Mar 17,  .. 9th Cir.:    Raines v. U.S. Healthworks  ..  Plaintiffs in this case represent themselves and a putative class of current and former job applicants.     They seek to hold defendants, providers of pre-employment medical screenings, liable for asking allegedly invasive and impermissible questions during medical screening exams.     Specifically, plaintiffs allege that defendants required applicants to complete a written questionnaire that asked numerous health-focused and non-job-related questions, including whether the applicant has or ever had: venereal disease; painful or irregular vaginal discharge or pain; problems with menstrual periods; irregular menstrual periods; penile discharge, prostate problems, or genital pain or masses; cancer; mental illness; HIV; permanent disabilities; painful or frequent urination; hair loss; hemorrhoids; diarrhea; black stool; constipation; tumors; an organ transplant; a stroke; or a history of tobacco or alcohol use.     Defendants also asked whether job applicants were pregnant.     The crucial question of state law is whether the Fair Employment and Housing Act (FEHA) allows employees to hold a business entity directly liable for unlawful conduct when the business entity acted only as the agent of an employer, rather than as an employer itself.      ..  COURT DECISION:   (.pdf)   (.html)

♦        Mar 16,  .. 7th Cir.:    Paschall v. Tube Processing Corp  ..  Tube Processing Corporation (“Tube Processing”) hired Ashaki Paschall, a Black woman, through a temporary staffing agency to work as a machine operator in its end forming and bending department.    John Benash, a white man began training Paschall.    Benash’s comments turned obscene. Benash asked Paschall: “Do you get wet when you have sex?” and “How does it look[?]”    Paschall took these comments to mean Benash was asking her if “black women get wet just like white women get wet.”    Understandably hysterical, Paschall immediately reported Benash’s lewd comments to Combs. Combs assigned Paschall to a different job for the rest of the day.    The next day, Paschall was again assigned to work near Benash.    One day she overheard Benash telling coworkers “ooh that n[**]ga be working fast.”    Although Benash was not directly speaking to her, Paschall believed he was speaking about her.    She reported the incident to Combs.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Mar 16,  .. FLRA:  IBB Union v. Navy  ..  On Wednesday, August 7, 2019, the grievant put her name on a sign‑up sheet requesting to work overtime on the upcoming weekend (the overtime assignment).    On Thursday, the grievant called in sick, stating that she “anticipated she would likely get a migraine headache from physical therapy” that she had attended on Wednesday.    The grievant returned to work on Friday and submitted a leave request to her supervisor for her Thursday absence. The Agency did not schedule the grievant for the overtime assignment. On the following Monday, the supervisor approved the leave request.    The Union subsequently filed a grievance alleging that the Agency violated Article 8, Section 0807 of the parties’ agreement (Section 0807) and the MOU because the Agency did not schedule the grievant for the overtime assignment. The parties were unable to resolve the grievance, and the Union invoked arbitration.    At arbitration, the Arbitrator framed the issue as whether the Agency violated the parties’ agreement “by refusing to schedule” the grievant for the overtime assignment.  ..  FLRA DECISION:   (.pdf)   (.html)

♦        Mar 16,  .. 6th Cir.:    Kreszowski v. FCA  ..  Keith Kreszowski began working for FCA in its Toledo, Ohio automotive manufacturing facility in July 2013 and was a member of the Union.   On September 30, 2016, Kreszowski hit the “abort” button to shut down an alignment machine when he perceived that his coworker Ken Sukalo had created a safety hazard by walking away from the machine.    This caused production throughout the assembly line to shut down for ten to fifteen minutes.    Kreszowski’s supervisor, Nichole Banks, spoke to his coworkers about the incident and then issued him a verbal warning for failing to follow safety procedures.    In the conversation with Banks, Kreszowski was admittedly “upset,” acknowledging that he had reacted with a “certain level of emotion.”    He stated that he did not yell or scream, but that he raised his voice to be “firm” and probably used hand gestures.    Kreszowski felt the discipline was unwarranted and was frustrated Banks had spoken to other coworkers about the machine shutdown rather than asking for his “side of the story.”    He told Banks he would contact the Occupational Safety and Health Administration (“OSHA”).    On October 25, 2016, Kreszowski filed a charge of disability discrimination with the Ohio Civil Rights Commission (“OCRC”). He alleged that FCA discriminated against him because of a perceived disability by disciplining him and subjecting him to different employment terms and conditions.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Mar 16,  .. FLRA:  Air Force v. AFGE  ..  The grievants are Air Reserve Technicians (technicians). Technicians perform both military and civilian assignments. Article 1, Section 3 of the parties’ collective-bargaining agreement (Article 1) provides that when technicians are “performing duty in a civil service status, the choice between wearing civilian attire and military attire is at the option of the individual.”    On October 2, 2018, the Agency notified the Union of its intent to implement a new uniform policy requiring technicians to wear military uniforms regardless of whether they are performing civilian or military duties.[3]    A week later, the Union requested to bargain over the proposed changes. Subsequently, the parties met and exchanged proposals in December and January.    On January 30, 2019, the Agency rejected the Union’s request to meet in February and provided the Union with its final proposals. On February 11, the Agency notified the Union that it would implement the uniform policy.    The Agency implemented the uniform policy eight days later.    The Union then filed a grievance.  ..  FLRA DECISION:   (.pdf)   (.html)


♦        Mar 15,  .. FLRA:  Treasury v. NTEU  ..  The Union (NTEU) filed a grievance alleging that the Agency (IRS)violated Article 32, Section 1 of the parties’ National Agreement (NA) and committed an unfair labor practice (ULP) ... when it unilaterally implemented changes to the annual leave procedures for certain bargaining-unit employees (BUEs).     Arbitrator Andrew M. Strongin sustained the grievance, finding that the unilaterally implemented changes were covered by the NA.     The IRS filed an exception arguing that the award failed to draw its essence from the parties’ NA.  ..  FLRA DECISION:   (.pdf)   (.html)

♦        Mar 15,  .. D.D.C.:    Shelton v. DOJ (FBI)  ..  On September 9, 1990, Plaintiff began working for Defendant FBI.     At some point in 2010, she filed an EEO complaint, presumably against one of her supervisors, although Plaintiff does not explain the contents of that complaint.     By 2016, Plaintiff was a “Management and Program Analyst,” reporting to Supervisory Special Agent Eujung Nam (“Nam”).     At that time, Plaintiff’s superiors had become dissatisfied with her work and placed Plaintiff on a “Performance Improvement Plan.” The complaint alleges that, at that time, Nam began to subject Plaintiff to various kinds of workplace abuse.     In relevant part, these allegations include:   (1) “yelling at Plaintiff with her fist balled up as if Nam was going to attack Plaintiff,”   (2) “becoming irate and speaking of Plaintiff in a negative tone” after “Plaintiff couldn’t locate missing information for a nightly report,”   (3) Nam telling Plaintiff that Nam “didn’t like Plaintiff’s nationality, her mother nor her child,” and   (4) “lunging at Plaintiff with Nam’s fist balled up twice,”     Plaintiff’s employment was terminated for poor work performance.     Plaintiff filed an EEOC complaint for hostile work environment, discrimination on the basis of sex, race, disability, and the 2010 EEO complaint.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Mar 15,  .. 11th Cir.:    Steele v. BJCC  ..  Ms. Steele, an African-American female, was employed in some capacity by the Birmingham Jefferson Civic Center Authority (“BJCC”) for over thirty years, working her way up from housekeeper to Custodial Services Manager, the position she held from 2008 until her termination in 2016.    In that role, Steele was broadly responsible for ensuring that BJCC—an entertainment venue whose facilities included exhibition halls, an arena, a concern hall, and a theater—was presentable to the public. She supervised around twenty full-time housekeepers and groundskeepers, in ad- dition to contract laborers.    BJCC considered Steele a “stellar” performer until shortly before her termination. She consistently received excellent yearly performance reviews, with evaluators commenting positively on her leadership, management, communication, and motivational skills. And with Steele in charge, the BJCC complex was the clean- est it had been in a long time, according to the Director of Human Resources, Elma Bell.    In August 2016, however, the CEO of BJCC, Tad Snider, re- ceived an anonymous email complaint about Steele. The email pleaded that the “housekeeping department is in need of help” due to “mistreat[ment], unfairness, bribery, threats, [and] gossip” by Steele.    Suggesting there was widespread discontent with Steele, the email alleged that she showed favoritism to those who gave her food or money in overtime and weekend scheduling, gossiped about employees’ personal matters outside the department, and spoke disrespectfully to employees.    BJCC retained Michael Quinn, a retired employment lawyer, to investigate the email’s allegations.    Ms. Bell was placed on leave with pay until the conclusion of the investigation.  ..  COURT DECISION:   (.pdf)   (.html)


♦        Mar 14,  .. 10th Cir.:    EEOC v. Roark-Whitten Hospitality  ..  In July 2009, Roark-Whitten Hospitality (RW2) acquired the Paragon Hotel in Taos, New Mexico, and renamed it the Whitten Inn.     At the time Larry Whitten (Whitten) acquired the hotel, the hotel had several longtime Hispanic employees.     Within a month after acquiring the hotel, Larry Whitten fired or demoted three Hispanic employees who worked as front desk clerks.     Specifically, in early August 2009, Whitten told employee Victor Cardenas that he could no longer work the front desk because of his accent, and Whitten directed Cardenas to instead work in maintenance and housekeeping.     Also in early August 2009, Whitten told Marcos Jeantette, a light-skinned Hispanic male, that he needed to use the name “Mark” when he was at work. Jeantette refused to do so.     The next day, August 9, 2009, Whitten fired Jeantette.     Lastly, Whitten called Michelle Martinez, another of the Hispanic front desk clerks, “Buckwheat,” in reference to her dark skin.     On August 16, 2009, Whitten fired Martinez.     Whitten also fired another Hispanic employee, Martín Gutierrez, on August 16, 2009. Gutierrez worked at the hotel as a night auditor. Whitten told Gutierrez that when he was at work he should pronounce his name as “Martin,” without the Spanish accent on the last syllable.     On August 17, 2009, Kathy Archuleta, Dale Quintana, Jennie Valdez, and Victor Cardenas called a meeting with Whitten to object to what they perceived as discriminatory policies and treatment.     At the conclusion of the meeting, Whitten fired Archuleta, Quintana, Valdez, and Cardenas.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Mar 14,  .. 5th Cir.:    Abbt v. City of Houston  ..  SHE BROUGHT HER HOMEMADE NUDE VIDEO TO WORK     THEY WATCHED HER NUDE VIDEO     Beginning in 2003, Ms. Abbt worked for the City of Houston as a firefighter in the Houston Fire Department. From 2006 until 2009, she was assigned to Station 18. During that time, she served under Chris Barrientes, who was a Junior Captain at Station 18. Station 18 was overseen by District Chief David Elliott, who also had purview over three to four other stations.    ...    The actions which led to this case began around 2008, when Barrientes received an anonymous e- mail. That e-mail contained an intimate, nude video of Ms. Abbt that she had made privately for her husband and had saved on her personal laptop, which she had brought to the fire station.    ...    Barrientes first watched the video in the captain’s office of Station 18. He kept the video’s existence hidden for several days, and then brought it to the attention of District Chief Elliott.    ...    When Barrientes told Elliott about Abbt’s nude video, Elliott asked to see it.    ...    Barrientes then played the video for Elliott; another firefighter, Jonathan Sciortino, testified that he was also in the room and viewed the video.    ...    Elliott did not report the video to human resources or to a supervisor. Instead, Elliott “asked [Barrientes] to forward [the video] to him” because Elliott “wanted to see it again.”    ...    Ms. Abbt learned of these events on May 18, 2017, when Elliott confessed to Abbt’s husband (also a member of the Fire Department) that Elliott had seen a nude video of Ms. Abbt.    ...    Upon learning that her personal, intimate video had been seen by other firefighters, Abbt was “completely distraught” and “disgusted.”    ...    After the incident, Ms. Abbt received six months of unpaid leave under the Family and Medical Leave Act (FMLA).   ...    An Administrative Law Judge found that Abbt had suffered “a compensable mental trauma injury” and she was granted worker’s compensation pay.    ...    She was medically separated from the City and her employment ended on February 12, 2019.    ...    Ms. Abbt filed a complaint with the Houston Office of Inspector General (OIG).  ..  COURT DECISION:   (.pdf)   (.html)

♦        Mar 11,  .. D.D.C.:    Mitchell v. Barr (DoJ)  ..  Rodrick Mitchell alleges that a supervisor removed him from a desirable position at the Federal Bureau of Prisons based on his race. When Mitchell complained about the discriminatory environment he faced, another official allegedly retaliated against him by marking him absent from work. Defendants the Attorney General and the Bureau of Prisons respond to Mitchell’s Title VII claims with evidence to suggest that Mitchell was reassigned not because of his race, but because of an ethical lapse. They also say that he was marked absent only because he failed to timely request leave, and they move for summary judgment.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Mar 11,  .. Fed. Cir.:    Keys v. Hud  ..  Mr. Keys joined HUD in 2001 and worked in various positions over the years. In 2011, he began serving as a Discrimination Complaint Manager in HUD’s Office of Field Policy Management. He soon filed an Equal Employment Opportunity (EEO) complaint, in which he alleged, among other things, that his then-supervisor failed to provide him a description of his position or a performance plan.     In December 2011, after resolution of the complaint, Mr. Keys was reassigned to work under a different supervisor, Nelson Bregón. Mr. Keys’s title within the Office of Field Policy Management remained unchanged.     Mr. Keys resigned from his job with the United States Department of Housing and Urban Development (HUD, or agency) after being reassigned from one position to another.     He later filed an appeal with the Merit Systems Protection Board alleging, as now relevant, that the reassignment was an act of reprisal by HUD for whistleblowing on his part.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Mar 11,  .. 7th Cir.:    Anderson v. Nations  ..  On January 4, 2017, Ms. Anderson began working as a Pre-Fund Underwriting Auditor for NLC, a residential mortgage lender. In reviewing loan applications, she verified the underlying documentation from the underwriter and ensured that the loan met established requirements.     These responsibilities included identifying any deficiencies in the loan files by analyzing credit and collateral, as well as by confirming income and tax calculations.     During her first year of employment in 2017, Ms. Anderson exhibited performance deficiencies. Gourley suspected that she was moving through files too quickly and counseled her. Ms. Anderson never was written up or formally disciplined, but she was provided ongoing training.     During this time, she also experienced multiple health problems. Consequently, she exhausted all of her available sick days on an extended leave from October 6, 2017, to January 14, 2018.     When Ms. Anderson returned to work in January 2018, Gourley emailed her, having learned of additional performance issues, and asked her to explain these new errors. Ms. Anderson was unable to explain her mistakes, but she promised to be more diligent in the future. Gourley requested that she complete training before auditing more files.  ..  COURT DECISION:   (.pdf)   (.html)


♦        Mar 9,  .. MSC:    Grigg v. Beaverhead  ..  Mr. Grigg worked as a pararnedic and manager for BEMS approximately 16 days before Beaverhead County EMS (BEMS) terminated his employment on January 29, 2021.     On February 5, 2021, Grigg filed a complaint in Flathead County District Court that alleged a bald claim of "unlawful dismissal," with no further explanation or supporting factual allegations whatsoever.     His Complaint requested relief of four years of wages for unlawful dismissal, retaliation, discrimination and workplace harassment.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Mar 9,  .. PSC:    Palmiter v. CHS  ..  Ms. Palmiter appeals from the Lackawanna County Court of Common Pleas’ order dismissing her complaint filed against Commonwealth Health Systems (CHS) (Employers).     In her complaint, Ms. Palmiter alleged Employers violated PHRA by denying her employment after she tested positive for the medical marijuana she had been prescribed under the Medical Marijuana Act (“MMA”) for her chronic pain, migraines and fatigue.     She alleged in a single count that this constituted disability discrimination, failure to provide reasonable accommodation and employment retaliation.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Mar 9,  .. CCA:    Dillard v. GEICO  ..  Dillard began working for GEICO as a customer service representative in 2002. Some eight years later, Dillard was promoted to her current position as field supervisor in the auto damage department.     As a field supervisor, Dillard is generally responsible for managing a team of adjustors in evaluating and resolving auto damage claims. Her position requires a substantial amount of driving because Dillard performs her job out in “the field. On average, Dillard drives 50 to 70 miles per day. GEICO provides company vehicles to each of its adjustors and field supervisors.     In 2014, GEICO assigned Dillard a 2014 Chevrolet Cruze (Chevy Cruze).     Since about 2003, Dillard has suffered from scoliosis, a chronic spinal health condition. The condition manifests in intermittent severe pain, although the pain and severity is not constant. The scoliosis flares up in certain situations and has progressed with age.     Around June 2017, Dillard’s condition became aggravated when she started taking longer drives in her car to meetings in Orange County. Instead of having to drive 50 to 70 miles a day, Dillard was finding herself spending four to six hours in traffic when she was required to travel to Orange County.     Dillard experienced severe back pain sitting in her car, which did not have lumbar support. In addition, the Chevy Cruze’s headrest pushed Dillard’s head forward, resulting in migraine headaches (especially during the longer drives to Orange County).     On July 12, 2017, Dillard called Angela Alvarado, an employee in GEICO’s human resources department, to complain that she was experiencing severe back pain that was worsened by long drives in the Chevy Cruze.     Karma Dillard brought this action against GEICO, alleging a variety of causes of action including failure to engage in the interactive process and failure to accommodate her disability. ... CONTINUED  ..  COURT DECISION:   (.pdf)   (.html)

♦        Mar 9,  .. 6th Cir.:    Blanchet v. Charter  ..  In July of 2014, Charter Communications hired Ms. Blanchet as a Direct Sales Representative (“DSR”). As a DSR, Ms. Blanchet was responsible for selling Charter’s services door-to-door in residential neighborhoods. Blanchet quickly excelled in her role, receiving positive feedback from her closest supervisors.     During Blanchet’s employment, she became pregnant and requested maternity leave. She applied for and received Charter’s standard maternity leave, short-term disability benefits, and Family and Medical Leave Act (FMLA) benefits until September 4, 2016. After giving birth to her child on July 11, 2016, Blanchet developed postpartum depression. As a result of her medical condition, Blanchet requested an accommodation of additional leave under the FMLA, which extended past her initial return-to-work date of September 4, 2016.     At that time, Sedgwick, a third party who administered disability leave for Charter, was primarily responsible for all direct communications with employees who requested leave.     On March 9, 2017, Blanchet received a termination letter from Charter stating that she was separated from the company “effective January 10, 2017.”     Blanchet subsequently sued Charter after having filed a discrimination charge with the Equal Employment Opportunity Commission.     The first count of her operative complaint, entitled “Disability Discrimination,” alleges that “the action of Defendant Charter Communications in firing Plaintiff Kelly Blanchet is in violation of The Americans with Disabilities Act of 1990.” this termination letter, no representative from Charter or Sedgwick contacted her to explain that her request for an accommodation was not reasonable. In addition, no representative from either Charter or Sedgwick requested additional medical records or reached out to inquire for more details on Blanchet’s condition.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Mar 8,  ..  No New Cases To Post Today.

♦        Mar 7,  .. 4th Cir.:    Beverly v. Becerra  ..  Larry D. Beverly and Ada R. Wilson filed a civil action against Alex M. Azar, ∗ Secretary of the United States Department of Health and Human Services, alleging employment discrimination and retaliation, in violation of Title VII of the Civil Rights Act of 1964.     Specifically, Beverly alleged race discrimination and retaliation for participating in protected activities, and Wilson alleged race and gender discrimination and retaliation for participating in protected activities.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Mar 7,  .. D.D.C.:    Trant v. Murray  ..  Since 2015, Plaintiff Jennifer Trant has served as an Officer for the United States Secret Service. She brings this action under Title VII of the Civil Rights Act of 1964, asserting two claims.    First, Trant alleges that she was subjected to a hostile work environment caused by months of sexually suggestive comments and unconsented-to touching by a male colleague.    Additionally, Trant claims that, when she reported this harassment, her employer retaliated against her by discouraging her from participating in the Equal Employment Opportunity (“EEO”) process, relocating her desk within the office she shared with her harasser, and transferring her laterally to another office location.    Defendants—the heads of the Secret Service and the Department of Homeland Security, in their official capacities—have moved for summary judgment on both claims.    Having reviewed the record evidence, the court finds that a reasonable jury could conclude (1) that Plaintiff faced a hostile work environment and (2) that Defendants retaliated against Plaintiff by discouraging her from reporting the colleague’s harassment and by transferring her to a different location.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Mar 7,  .. TAC:    Taylor v. JW Marriott  ..  Mr. Taylor was hired as a front desk agent by 806 Main Master Tenant LLC d/b/a JW Marriott Houston Downtown (the “Hotel”). Taylor started off working the day shift, but he was eventually moved to the night shift. The move came as a promotion, with additional responsibilities and greater pay, and it also enabled Taylor to continue his second job in retail. The Hotel terminated Taylor shortly after the promotion.    The Hotel cited several performance problems as the reasons for the termination, and the final reason was a violation of the Hotel’s punctuality policy. According to the Hotel, Mr. Taylor did not appear for work on time and in his uniform, and then he went home early, which left the Hotel short-staffed.    Taylor did not complain of any sort of racial animus in his exit interview, but he subsequently filed a charge of discrimination with the EEOC and Texas Workforce Commission. In that charge, Mr. Taylor alleged that he was terminated in retaliation for having reported two earlier incidents of racial harassment to the Hotel’s human resources manager.    In the first incident, Taylor alleged that the Hotel’s training director called him a “hood rat” in front of his coworkers.    And in the second incident, Mr. Taylor alleged that the same training director insinuated to a guest that Taylor could not always be trusted when the training director said that “he’s Black and you know how they do.”    The Hotel denied that these comments were ever made or that Taylor had even reported them to the human resources manager.  ..  COURT DECISION:   (.pdf)   (.html)

♦        SPEED JOKES :    Dung beetle went to the drugstore  ...  for some shampoo.      Dung beetle goes to a chinese restaurant ... orders a number 2.    John Williams Show - (WGN RADIO)

♦       Mar 4,  ..  FRANKLIN DELANO ROOSEVELT (FDR) WAS INAUGURATED PRESIDENT ON THIS DATE IN 1933,    Roosevelt won in a landslide over Republican incumbent Herbert Hoover.     By the time of his inauguration, the country had been mired in the Great Depression for more than three year.     By the time he left office, FDR had enacted many programs to help everyday people regardless of race, gender or religion.     With regards to everyday people, FDR is arguably the greatest president America has ever known.     CONTINUED   the writers almanac

♦       Mar 4,  ..  FRANCES PERKINS TOOK HER POST AS U.S. SECRETARY OF LABOR ON THIS DATE IN 1933.,    She was the first woman to serve on an American president’s cabinet.     Before President Roosevelt began his first term as president he offered her the cabinet post; she told him she would accept if he would agree to let her address several labor problems that she felt needed fixing. Roosevelt agreed.     Frances Perkins proved to be a strong, great and highly effective leader.     Her policies did away with child labor in the United States. They also led the way to the 40-hour workweek, the Federal Labor Standards Act, and Social Security — and they formed a large part of the New Deal.     CONTINUED   the writers almanac

♦        Mar 4,  .. 11th Cir:    Jenkins v. Nell  ..  Jenkins, a white male, worked at the Georgia Ports Authority (GPA) as a crane operator. Nell, a black male, was Jenkins’s supervisor.    The following facts are undisputed. In December 2016, a crane that Jenkins was operating malfunctioned and caused a spreader bar (a heavy metal beam used by crane operators to pick up large objects), to drop on a cargo container.    In a statement to the GPA police, Jenkins reported that “the spreader bar landed hard on the box,” causing a jolt. Based on Nell’s review of Jenkins’s statement and video footage of the incident, Nell concluded that the spreader bar did not make a hard landing. At Nell’s request, his assistant managers asked Jenkins to remove any reference in his statement to a hard landing, but Jenkins refused.    In August 2017, Jenkins went to Nell to request weekend leave. To obtain weekend leave at the GPA, a crane operator must request the date and then also must “secure a benefit,” which re- quires burning—i.e., sacrificing—an additional day of vacation time.    Nell denied Jenkins’s request because another crane operator had already asked for the same time off. However, according to Jenkins, the other crane operator did not secure a benefit until after Jenkins requested and offered to secure his requested time by burn- ing an additional day of vacation.    Jenkins felt as if Nell was mistreating him, but Jenkins feared Nell would retaliate against him if Jenkins went to Human Resources (HR).    According to Jenkins, Nell had a reputation among the crane operators of being a vindictive and bullying boss. Nell bragged that he was “close with HR” and that he would know if operators went to HR before the operators even left the HR office.    Nevertheless, it is undisputed that despite his fears, Jenkins made an appointment for the following day with an HR employee who he trusted. Another HR employee emailed Nell to ask if there was anything HR needed to know about for Jenkins’s meeting with HR.    Both parties agree that the following evening—the day after Jenkins made his appointment with HR but before he met with HR—Nell asked to meet with Jenkins before the start of the evening shift.   Each party provides a different account as to why the meeting took place and what occurred during the meeting.  ..  COURT DECISION:   (.pdf)   (.html)


♦        Mar 3,  .. ICA:    Caldwell v. Casey's General Stores  ..  Ms. Caldwell was hired as an assistant manager at a Casey’s convenience store.     When she began her employment, she signed a form verifying that she had a chance to review the employee handbook and acknowledging her obligation to read and understand the policies outlined in it.     The policy warns that supervisors who “violate the non-fraternization policy or who fail to immediately report involvement in a personal relationship with a subordinate employee will receive corrective action, up to and including termination of employment.”     Assistant manager, Nathan Aguirre, informed Bergman that he and Caldwell had an inappropriate sexual relationship in November 2017.     Casey’s terminated Caldwell for violating its non-fraternization policy.     Caldwell alleges age, sex, and disability discrimination.  ..  DECISION:   (.pdf)   (.html)

♦        Mar 3,  .. D.D.C.:    Baskerville  v. CBS News  ..  Between 1995 and 2016, Baskerville worked in a variety of positions in the Washington, D.C., bureau of CBS News.    She performed well for the first 21 years of her employment.    Baskerville transitioned to a new role in which one of her primary responsibilities was managing CBS’s internship program in Washington, D.C.    Baskerville struggled in her new role. Soon after she started, her coworkers complained to Godwin that Baskerville “wasn’t pulling her weight” and that “she was taking too long to meet deadlines.”    In addition, Godwin learned that Baskerville drank alcohol at work events, took interns out for drinks, and conducted interviews with potential interns at bars. ... CONTINUED  ..  COURT DECISION:   (.pdf)   (.html)

♦        Mar 3,  .. D.D.C.:    Bajaj v. HUD  ..  Plaintiff Parminder Bajaj worked as an IT Specialist at HUD’s Office of Public and Indian Housing Real Estate Assessment Center from October 1, 2016 to February 25, 2019.    According to the complaint, Bajaj is a member of multiple protected classes—she is “an Indian woman, over the age of 40 years old,” and “disabled.    (describing “chronic, severe pain” in Bajaj’s left arm, along with “mild spinal stenosis of her cervical spine” that “add[s] to her left arm pain”).    For much of her time with HUD, Bajaj “received high performance ratings” and did not face any “disciplinary actions or complaints” about her work.    She received a “Time Off” award in 2017.    “Beginning in approximately 2017,” however, Bajaj’s supervisors, Patrick Evans and Kevin Portanova, allegedly “marginalized her” by treating similarly situated employees—“who did not share the same sex, age, race, or national origin as Plaintiff, who were younger than Plaintiff, and who did not have a physical disability”—more favorably.    According to the complaint, Evans and Portanova did this by, “among other things, . . . denying pay, including government furlough pay; forcing Plaintiff to take leave without pay (‘LWOP’); placing her on Absence Without Leave (‘AWOL’); assigning her to tasks for which they knew she was not trained and refusing to offer necessary training or mentorship; belittling and criticizing her based on her sex, age, race, national origin, and disability; denying her requests for sick leave; denying her use of the time off award; and taking away her telework.”    When informed of this “discriminatory conduct,” Bajaj’s supervisors allegedly “took little to no steps to address the situation or [Bajaj’s] complaints and requests for assistance.    After complaining about the above-described “discriminatory conduct, was placed on a Performance Improvement Plan (“PIP”) after she “inexplicably” received the lowest possible rating “on all five (5) elements of her [May 21,] 2018, performance appraisal.”  ..  COURT DECISION:   (.pdf)   (.html)


♦       Mar 2,  ..  TODAY IS THE BIRTHDAY OF DR. SEUSS,   born in Springfield, Massachusetts, on this day in 1904.    He is considered to be the most popular children’s book writer in American history, the best-selling children’s book writer of all time, and a man who revolutionized the way children learned to read.    He’s the author of more than 60 children’s books, including Horton Hears a Who! (1954), One Fish, Two Fish, Red Fish, Blue Fish (1960), Green Eggs and Ham (1960), Hop on Pop (1963), Oh, the Thinks You Can Think! (1975), The Butter Battle Book (1984), and, of course, The Cat in the Hat (1957).     CONTINUED   the writers almanac

♦        Mar 2,  .. 11th Cir.:    Riggins v. Atlanta  ..  Ms. Riggins worked in the Department of Watershed Management for the City of Atlanta.    On June 12, 2014, an investigator interviewed Ms. Riggins. The investigator questioned Riggins about the water systems and the remarks she had made during the council meeting.    Riggins remarked that the interview was “hostile” and, approximately two hours into the interview, she asked for a restroom break, called an attorney, and refused to proceed until counsel was present to assist her.    The City mailed Riggins three disciplinary letters. On August 15, 2014, the City notified Riggins that she was being placed on administrative leave for the duration of the water contamination investigation and faced termination for misconduct, which included   (1) “engaging in offensive conduct or language toward the public, supervisory personnel or fellow employees,” and   (2) “[w]illful making of false statements.    On October 23, 2014, the City rescinded its August notice and informed Riggins that she was fired effective November 7, 2014, for making false statements during her interview in June.    On November 6, 2014, Ms. Riggins appealed to and requested a hearing before the Civil Service Board.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Mar 2,  .. WCA:    Grider v. Quinn  ..  The dispute on appeal concerns control of a marijuana retail business, which we often refer to as “the partnership” or the “marijuana retail store.” Washington State legalized medical marijuana in 1998. In 2012, the State broadened the law to permit limited retail sales of recreational marijuana.    Christopher Quinn, Christian Pang, and Johanna Grider formed a partnership to own and operate a marijuana retail sales outlet.    The three placed Ms. Grider in control of daily operations. Johanna Grider assumed the responsibility of preparing the store premises, under time constraints, for the LCB inspection. Grider had only two weeks to install the security system, including cameras. A potential competing store one hundred yards away also hurried to procure a license.    When Ms. Grider refused to use funds segregated for payment of sales taxes in order to purchase more product, Quinn and Pang took aggressive and oppressive actions to   (1)terminate Grider’s employment and   (2) thwart her ability to gain any profit from the business.    The superior court granted Ms. Grider damages and other relief.    This appeal followed.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Mar 2,  .. D.C. Cir.:    Wendt Corporation  v. NLRB  ..  First, in October 2017, John Fricano, a unit employee, loaded an item onto a forklift and moved the forklift into a paint booth to paint it.    As Fricano began to paint the item, Wendt operations director Richard Howe approached him and asked him whether he felt that painting with the forklift inside the booth was safe.    Howe testified that Fricano’s eyes “doubled in size” and Fricano agreed that it was not safe.    Two days later, Wendt plant manager Daniel Voigt summoned Fricano to the main office to question him about the forklift incident.    Fricano requested the presence of a union representative during questioning, but Wendt plant manager Daniel Voigt denied the request and represented to Fricano that it would not be necessary because he only had to answer some questions.    When Fricano arrived in the office, Wendt’s human resources official, Denise Williams, gave him a disciplinary document that reflected Wendt’s description of the forklift incident.    The document included a section for Fricano to indicate agreement or disagreement with Wendt’s statement on the incident by checking a box, and it had a space for him to leave comments.    Fricano refused to sign the document or leave a comment, but he checked the box indicating disagreement.    Wendt then suspended Fricano for three days without pay.    Based on this incident, the National Labor Relations Board (“NLRB” or “Board”), ruled that Wendt violated Section 8(a)(1) of the Act by refusing a unit employee’s request for a union representative during an investigative disciplinary interview.    HERE, Wendt Corporation petitions The D.C. Circuit for review of NLRB'S decision and order.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Mar 2,  .. NJSC:    Usachenok v. NJDOT  ..  Plaintiff Viktoriya Usachenok, a former Department of the Treasury employee, challenges the facial validity of paragraph (j) of N.J.A.C. 4A:7-3.1, a regulation prohibiting discrimination and harassment in public employment and governing the investigation of complaints about that conduct.    When plaintiff filed this action, the challenged paragraph required anyone interviewed during an investigation "be directed not to discuss any aspect of the investigation with others" and provided that failure to comply with that confidentiality directive could result in disciplinary action.    During the pendency of this action, the Civil Service Commission (CSC) amended the regulation.    Despite the amendment, plaintiff maintains N.J.A.C. 4A:7-3.1(j), even in its present form, impermissibly restricts speech and is facially unconstitutional.  ..  COURT DECISION:   (.pdf)   (.html)


♦        Mar 1,  .. CAC:    O'Rourke v. Dept. of Labor  ..  The plaintiff is a former employee of the defendant Department of Children and Families (department).    In her position with the department, the plaintiff investigated allegations of child abuse and neglect.    After completing an investigation of a particular case involving a mother’s alleged neglect of her two children, the plaintiff submitted to her supervisor, F, a draft investigative report.    Supervisor, F, disagreed with various parts of the draft report and made various changes in the final draft of that report to address her concerns.    The plaintiff, believing that the final report contained false and misleading information and omitted certain exculpatory information, and without notifying or obtaining permission from the department, sent a copy of the draft report to the attorney who represented the mother in the order of temporary custody proceedings.    Human resources determined that plaintiff had violated various department policies.    The department terminated her employment.    The union filed a grievance on behalf of the plaintiff.    Dissatisfied, plaintiff filed a complaint with the board against both the department and the union.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Mar 1,  .. 10th Cir.:    Stroup v. United Airlines  ..  Ms. Stroup and Mr. Lee were flight attendants who had worked for United for decades. Both, generally, had rendered good service in their years of employment and had received only minor discipline. At times material here, Plaintiffs were based out of the Denver International Airport.    Plaintiffs’ terminations stem from a complaint against them from their fellow flight attendant, Sheila Simms. In August 2013, Ms. Simms contacted Mark Dodge, Plaintiffs’ supervisor, to complain about Plaintiffs’ conduct on a flight that occurred a few days before.    Ms. Simms alleged that Plaintiffs “watched a video on an iPad when they were on-duty.” United’s Flight Attendant Information Manual (“FAIM”), which “contains the policies, procedures and service standards for all . . . flight attendants,” ... prohibits the use of “personal electronic devices” by flight attendants “on board the aircraft while customers are present.    Mr. Dodge escalated the issue by emailing Dean Whittaker, United’s Manager of In-Flight Services at Denver International Airport and the ultimate decision-maker as to Plaintiffs’ employment. In response, Mr. Whittaker “asked Deepesh Bagwe, a California-based supervisor, to anonymously observe [the] Plaintiffs’ job performance, including whether they would again watch a video while on-duty.”    Mr. Bagwe’s observation happened while Plaintiffs were working a short flight between Denver and San Francisco roughly five weeks after Ms. Simms’s complaint.    On that flight, Mr. Bagwe catalogued several policy violations. First, Mr. Bagwe photographed Plaintiffs sitting on carrier boxes—“steel containers for stowing items in galleys”—and also sharing a pair of earbuds and watching a video on an iPad.    Much like the video watching, Plaintiffs’ use of the carrier boxes also violated the FAIM. Next, Mr. Bagwe observed Mr. Lee smoking an e-cigarette during the flight in violation of United policy. Mr. Bagwe also observed other, “less major” policy violations, such as (1) Mr. Lee not being “properly positioned” during his safety demonstration at the beginning of the flight; (2) Plaintiffs’ rushed and incomplete beverage services; (3) Plaintiffs’ failure to wear their aprons and name-tags; (4) Mr. Lee’s giving of a free alcoholic beverage to a customer; and (5) Plaintiffs’ failure to comply with sanitation procedures for the water service.  ..  COURT DECISION:   (.pdf)   (.html)


♦        Feb 28,  .. 10th Cir.:    Swanson v. Griffin  ..  In 2019, Defendant/Appellant Couy Griffin, an Otero County Commissioner, blocked Plaintiff/Appellee Jeff Swanson from his Facebook profile after Mr. Swanson posted comments critical of Mr. Griffin’s service as a county commissioner.    Mr. Swanson commenced an action alleging Mr. Griffin’s Facebook profile was a public forum and Mr. Griffin had engaged in viewpoint discrimination, in violation of the First Amendment.    Mr. Griffin filed a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss raising a qualified immunity defense. The district court denied the motion, relying on out-of-circuit authority to conclude the law clearly established that (1) social media platforms are entitled to the same First Amendment protection as other public speech platforms and (2) a government official censoring speech violates the speaker’s First Amendment rights.    We reverse. The Supreme Court has repeatedly instructed lower courts not to define rights at a high level of generality when considering a qualified immunity defense.    Furthermore, two of the three out-of-circuit cases relied on by Mr. Swanson are off-point, and a single out-of-circuit case is not capable of clearly establishing a proposition of law.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Feb 28,  .. 11th Cir.:    Oniha v. Delta Air Lines  ..  Delta security officer, later identified as George Taylor, but makes no reference to any discriminatory statements about Nigerians and says only that Taylor stopped at the scene of the confrontation to ask what was going on and give Oniha advice about security check- points.   After Oniha was fired on July 20, 2019 for improperly using his security badge to exit and reenter secure areas of the airport, he created a new version of the letter he’d sent to Delta about the June 14, 2019 incident.   This letter—which we’ll call the “Second Statement”—purports to be the original letter: It is dated June 14, 2019, contains the heading “Subject: Security Incident Report,” and ad- dresses his “superiors” at Delta.   But unlike the statement that Oniha actually sent to Delta, this document omits the description of Taylor’s helpful conduct and replaces it with an allegation that Taylor said he would “make sure” that Oniha gets fired and that “NIGERIANS ARE CRIMINALS.”   A subsequent forensic computer examination revealed that Oniha created the Second Statement on July 23, 2019 —three days after he was fired— and modified it as recently as October 14, 2019. Oniha’s explanation that the Second Statement was merely a personal record—an explanation that came only after Delta discovered the discrepancies—is implausible.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Feb 25,  ..  No New Cases To Post Today.    Have A Great Weekend !

♦       Feb 24,  ..  TODAY IS THE BIRTHDAY OF STEVE JOBS,   born in San Francisco (1955).    Clara and Paul Jobs adopted Steve when he was still a baby.    Growing up, Steve and his father would tinker with electronics in the garage.    He dropped out of college after a semester, went to India and returned a devout Buddhist.    He got a job with a video game maker where he was in charge of designing a circuit board for one of the company’s games.    In 1976, at the age of 21, he co-founded Apple Computers, and less than a decade later Apple unveiled the Macintosh computer.    CONTINUED   the writers almanac

♦       Feb 24,  .. 1st Cir.:    Reyes v. Garland  ..  Mr. Reyes, a former intelligence specialist for the United States Attorney's Office ("USAO") for the District of Puerto Rico, sued his former employer under Title VII of the Civil Rights Act of 1964 alleging discriminatory retaliation and constructive discharge resulting from a hostile work environment.    A jury returned a verdict on liability for retaliation and awarded Mr. Reyes the statutory maximum of $300,000 in damages.    Because of the equitable nature of damages for constructive discharge and at the urging of both parties, the district court charged the jury to return an advisory verdict on that issue.    That verdict was also in Mr. Reyes's favor, so he then sought a judgment of front and back pay from the district court.    The court rejected the jury's advisory verdict on the basis that the verdict was not supported by the evidence, determining that Mr. Reyes was not constructively discharged and therefore not entitled to front or back pay.    Mr. Reyes appeals, arguing that the jury's verdict on constructive discharge was not advisory, but binding on the district court.    He also argues that the district court committed legal error.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Feb 24,  .. FDC:    Herrera v. Jarden Corp  ..  Ms. Herrera (“Plaintiff”) was the Director of Internal Audits of appellee Jarden Corporation. Appellee John Capps was Jarden’s Executive Vice President and General Counsel. Appellee Tonya Jarvis was Jarden’s Vice President of Human Resources.    Plaintiff sued Jarden, Jarvis, and Capps after her termination from Jarden.    She claimed that she was wrongfully terminated from Jarden based on disability discrimination, and alleged four disabilities. Plaintiff also alleged claims of intentional infliction of emotional distress against Jarvis and Capps and a defamation claim against Capps, all arising from her termination.    The Defendants responded that Plaintiff was terminated after it was discovered that she had disclosed Jarden’s confidential business and financial information to an unauthorized person outside of the corporation.    At trial, Plaintiff argued that Jarden’s reason for her firing was pretextual because (1) the reason given for her termination and the identity of the decision maker changed during the litigation, (2) she did not violate company policy, and (3) other employees were not terminated for their violations of company policy.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Feb 24,  .. 7th Cir.:    Chaudhuri v. IBM  ..  Chaudhuri is an Indian citizen and an employee of IBM India. Between 2009 and 2017, he worked on several assignments in the United States.   In June 2017, two months into a three-year assignment with an American company in Milwaukee, Wisconsin, Chaudhuri was diagnosed with a degenerative spinal disease.   He took a leave of absence and received short-term disability benefits through IBM India’s self-funded sickness and accident plan for traveling employees.   He also hoped to obtain long-term benefits through a plan that IBM India had purchased for employees working in the United States for more than six months per year.   Under the policy, benefits accrued for workers present in the United States after a nine-month disability period.   Chaudhuri’s H-1B visa expired in the fall of 2017, and although IBM India sponsored his application to renew it, the United States Department of State denied renewal because his work was not sufficiently specialized.   Chaudhuri returned to India in October 2017, before the end of his projected three-year assignment, and he continues to work for IBM India.   Believing that he was wrongly prevented from accessing long-term disability benefits, Chaudhuri sued IBM USA.   He alleged that IBM USA employed him while he was stationed in the United States and that the company pressured him to return to India and ended his assignment to prevent him from renewing his visa and using the long-term disability policy, in violation of § 510 of the Act.  ..  COURT DECISION:   (.pdf)   (.html)


♦        Feb 23,  .. Fed. Cir.:    Allbee v. DHS  ..  CBP, which is a component of the Department of Homeland Security, removed Mr. Allbee based upon three charges:   (1) submission of reimbursement claims for unauthorized travel expenses (25 specifications); (2) making unauthorized cash withdrawals on a government travel card; and (3) failure to cooperate in an official investigation.    Mr. Allbee appealed his removal.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Feb 23,  .. 7th Cir.:    Porter v. Kijakazi (SSA)  ..  Porter, who is African-American and over 40 years old, was fired seven months into a probationary period of employment as a benefit authorizer with the Social Security Administration . She was one of a dozen probationary employees in her training course, which included classroom instruction, practice drills, case simulations, and testing with regard to accuracy in coding benefits transactions (e.g., payment adjustments, multiple entitlements, and changes to beneficiary records).    To pass the course, trainees had to complete eight case simulations per day with at least 80% technical accuracy.    Porter’s supervisor summed up her concerns in a written report, and four days later Porter was fired based on her probationary status and her “inability to learn the technical skills” of the benefit-authorizer position.    Security guards then escorted her out of the office—a humiliating episode that Porter attributes to her supervisor.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Feb 23,  .. D.D.C.:    Pannell v. PSI  ..  From May 15, 2018 to June 1, 2018, Mr. Pannell was employed by PSI as a Personnel Security Specialist, located in a building occupied by the Department of Justice.    During his employment, he was not reprimanded for any behavior, but his supervisor was “insolent” and “demeaning” to him and so he requested that he be trained by another PSI employee.    On May 25, 2018, he was informed by a PSI manager that his complaints about his supervisor would be investigated.    Thereafter, on June 1, 2018, he was informed via a telephone call that his employment was terminated but was not given the reason for his termination.    He later learned that the reason for his termination was “contrived” by the supervisor about whom he had complained based on her animus towards him.    In February 2020, he was interviewed by a federal investigator as part of a federal background investigation.    In December 2020, he learned that PSI had informed the investigator that he had been involuntarily terminated because he “had inquired how to search individuals in the Department of Justice’s database system to obtain personal information.”    Mr. Pannell alleges that this statement is false and that it has resulted in him losing several employment opportunities.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Feb 23,  .. 3rd Cir.:    Welchko v. UPMC  ..  In 2017, Welchko began working as a medical assistant at UPMC Altoona. She had spent ten years previously working in various administrative positions at the hospital.    UPMC maintains that Welchko was trained on a computer system for patient charting when she started as a medical assistant, but Welchko contends that she received only an overview of that computer system, which did not include patient care. Welchko was aware that the practice of “pre-charting” patient care — entering activities that employees provide into a patient’s electronic records before those activities happen — was prohibited.    Pre-charting is a basis for termination of employment at UPMC.    In September 2017, Welchko pre-charted a patient care activity. Her supervisor spoke with her about not pre-charting activities. Welchko stated in a deposition that she requested further training on the computer charting system but did not receive it.    In October 2017, Welchko pre-charted two additional patient care activities. After an investigation, she was suspended and ultimately fired for pre-charting records later that month.    Welchko participated in a grievance process with her union to challenge her termination, but after a grievance hearing, Welchko rejected a settlement offer by UMPC and the union ultimately withdrew the grievance, declining to proceed to arbitration.    Welchko then filed a sex discrimination complaint with the EEOC.  ..  COURT DECISION:   (.pdf)   (.html)


♦       Feb 22,  ..  No New Cases To Post Today.

♦       Feb 21,  ..  President's Day Holiday Monday

♦       Feb 18,  .. D.C.:    Robertson v. District of Columbia  ..  In July 2017, while she was a probationary employee of the District of Columbia Courts (the “D.C. Courts”), plaintiff/appellant Ms. Robertson was terminated from her position as a supervisor in the Superior Court’s Warrants and Special Proceedings Division.   She responded by filing suit against defendants/appellees.   Her Amended Complaint alleged   (1) that she was subject to discrimination, retaliation, and, ultimately, termination based on her race (African-American), gender, age (60+), and dark skin. (3) that the defendants defamed her and inflicted emotional distress through statements about her they made to potential employe   (4) that she was wrongfully terminated in violation of public policy; and   (5) that defendants conspired to terminate her employment.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Feb 18,  .. 5th Cir.:    Sambrano v. United Airlines  ..  In August of 2021, United announced that each of its United States- based employees would be required to get the COVID-19 vaccine. The announcement came with a deadline of either five weeks after the FDA formally approved the vaccine or five weeks after September 20, whichever was sooner.    United does not require any passenger on its planes to be vaccinated. Nor does it require its employees based in other countries to get vaccinated—even though those employees work with and come into contact with U.S.-based crews.    And neither does it require pilots from other airlines who ride in the cockpit jumpseat on United flights to be vaccinated.    United purported to provide exemptions for those who could not get vaccinated for either religious or medical reasons. That is, within ten days after the FDA approved the COVID-19 vaccine, a United employee could apply for an exemption from the vaccine mandate for either religious or medical reasons.    But at a town-hall meeting, United’s CEO warned that not many exemptions would be granted and remarked that any employee who “all the sudden decid[ed], ‘I’m really religious’” would be “putting [her] job on the line” by requesting an accommodation.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Feb 18,  .. 2d Cir.:    Francois v. OMIG  ..  The New York State Office of the Medicaid Inspector General (“OMIG”) temporarily promoted Ms. Milord-Francois, a black lawyer of Haitian descent, to a managerial role.   The permanency of the promotion was contingent on Ms. Milord-Francois receiving a satisfactory evaluation at the end of a one-year probationary period.   OMIG demoted Milord-Francois after she received a negative evaluation report at the end of this period. Shortly thereafter, Milord- Francois sued OMIG and two of its high-level supervisors, asserting three sets of claims [...]   Milord-Francois claims that she was subject to a hostile work environment, that she experienced racial discrimination for not comporting with a racial stereotype in the workplace, and that she was demoted as retaliation for raising another employee’s discriminatory comments to management.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Feb 18,  .. NSC:    Porchia v. Las Vegas  ..  On August 26, 2015, at 3:45 a.m., Porchia's friend called emergency services on his behalf because he was suffering from severe stomach pain, vomiting, and hot flashes. Las Vegas Fire and Rescue (LVFR), which employs respondents Firefighter-Paramedic Stephen Massa and Firefighter-Advanced Emergency Medical Technician Nicholas Pavelka, was dispatched to Porchia's location.   Massa and Pavelka placed Porchia on a stretcher, took his vitals, and asked him questions about his condition. Porchia requested they transport him to the hospital. According to Porchia's amended complaint, once he informed them that he was homeless and did not have insurance, Massa and Pavelka diagnosed Porchia with gas pain, removed him from the stretcher, and concluded he did not need to be transported to the hospital.   At 11 a.m., another of Porchia's friends called emergency services again on his behalf because he was still experiencing severe stomach pain. LVFR was again dispatched, and different EMTs immediately transported Porchia to the hospital, where he underwent emergency surgery for a bowel obstruction.   Porchia asserts that both the doctor and the nurse at the hospital informed him that if he had received medical treatment earlier, he would not have required emergency surgery.   Porchia filed, pro se, an amended complaint alleging negligence against respondents.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Feb 17,  .. 2d Cir.:    Soto v. Disney  ..  Plaintiff-Appellant Nancy J. Soto is a former employee of The Walt Disney Company (“Disney”).    After a stroke and other serious medical issues left her unable to work, Disney terminated her employment.    Although Disney paid Soto disability benefits, it did not pay her severance benefits under the Disney Severance Pay Plan (the “Plan”).    The Plan Administrator—the Investment and Administrative Committee of The Walt Disney Company Sponsored Qualified Benefit Plans and Key Employees Deferred Compensation and Retirement Plan (the “Committee”)—determined that Soto was ineligible for severance because she had not experienced a qualifying “Layoff” as defined in the Plan.    Soto subsequently brought claims against Defendants-Appellees Disney, the Plan, and the Plan Administrator.    She alleges that the Plan Administrator improperly denied her severance by deciding that, as defined by the Plan, a “Layoff” excluded a termination based on disability.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Feb 17,  .. CCA:    Webb v. DSM Engineering  ..  In March 2017, after a months-long recruitment process, Ms. Webb started in her position as a business development manager for DSM. Webb’s base salary was $180,000 per year, and she received a $15,000 signing bonus. Webb spent most of her time travelling and otherwise worked from home.    During her first week of employment, Webb attended a company conference in Japan. She arrived late to the conference, and also arrived late to two events during the conference. Webb maintains she missed her connecting flight due to a weather delay and that her supervisor, Matt Marnell, preapproved her late arrival to the two events.    In any case, Marnell was concerned about Webb’s apparent lack of professionalism at these events because she typed on her phone as he tried to introduce her to important colleagues. After the trip, Webb submitted various receipts that Marnell believed were efforts to obtain reimbursement for personal or family food expenses.    The following month, in April, Webb e-mailed Marnell two draft presentations related to the planning of another company event. Marnell found the work to be “incomplete, unusable work product,” that “essentially shift[ed] responsibility to the rest of the team to ‘fill in the blanks’ and prepare the presentation for her.”    On April 26, Webb e-mailed Marnell a list she had compiled of 26 customer targets for the following month. Webb either did not contact, or did not recall contacting, approximately half of the potential customers on the list.    On May 22, Webb sent Marnell a status update indicating, among other things, that she had conducted three customer visits with a fellow DSM employee earlier in the month (on May 8). Marnell contacted the employee and learned the visits, in fact, never occurred.    On May 24, Webb overslept for a planning meeting. Marnell subsequently removed Webb from the project to which the meeting pertained. He also received negative feedback from the project team regarding their experiences working with her—she was a poor listener and communicator, lacked product knowledge, and had called another team member “not important.” According to Webb, she was removed from that team to focus on a different project.    The following day, May 25, Marnell sent a text message to his supervisor regarding the negative feedback about Webb. Marnell was told to contact DSM Human Resources (HR) Vice President, Preta Stackhouse  ..  COURT DECISION:   (.pdf)   (.html)

♦        Feb 16,  .. SCO:    Booth v. Home Depot  ..  Appellant Jeffrey Booth, then an installation service manager for Appellee Home Depot, U.S.A., noticed at a job site that the customer was being charged for window wraps that were not needed.     Mr. Booth phoned and emailed his supervisor about the perceived overcharge.     The supervisor responded that an overcharge at the beginning of a billing cycle did not really exist because projects go over budget.     Mr. Booth replied that Home Depot does not issue refunds for those overcharges if a project does not exceed its budget. Per Mr. Booth, the supervisor ignored this remark.     The next day, Appellee began an investigation of Mr. Booth for an email he sent ten days earlier critiquing a colleague''s work performance.     After a one-day investigation of the allegation in the email, and two days after the overcharge report, Appellant Booth was terminated.     Mr. Booth sued Home Depot in Oklahoma state court claiming wrongful termination under Burk, alleging his job performance was good and that the email investigation was only a pretext for the real reason for termination -- his reporting of the overcharging of customers to his supervisor.  ..  COURT DECISION:   (.htm)   (.html)

♦        Feb 16,  .. 9th Cir.:    Wilkinson v. Pierce  ..  Rana Wilkinson (“Appellant”) resigned from her job as a maintenance technician for Pierce County, Washington (“Appellee”) after she returned from medical leave.    Appellant claims her resignation was actually the result of a “constructive discharge” by her employer’s actions in assigning her temporary vehicle-washing work at a different facility than the one to which she typically reported.    Appellant brought four claims against Appellee:   (1) violation of the Family Medical Leave Act (“FMLA”)   (2) violation of the Washington Family Leave Act (“WFLA”)   (3) wrongful termination in violation of public policy for violating the WFLA, and (4) retaliatory firing in violation of the Washington Industrial Safety and Health Act.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Feb 16,  .. 11th Cir.:    Muigai v. United Parcel Service  ..  UPS is a package-delivery company.    In November 2011, it promoted Muigai to the position of Technical Support Group (“TSG”) Supervisor, after he had worked as a TSG Technician and Senior Technician for more than seven years.    As a TSG Supervisor, Muigai’s job duties included, among other things, supervising technicians, monitoring projects to make sure they were completed on time, interviewing potential candidates for the TSG department, and conducting infrastructure compliance excellence audits (“excellence audits”).    For the period relevant to this case, 2013 to 2015, Muigai was one of seven TSG Supervisors who reported to South Atlantic District TSG Manager Scott Staber, who was a Caucasian male.    Muigai claims that he was forced to resign in 2015 because of ongoing race and national-origin discrimination and retaliation by Staber. According to Muigai, Staber regularly provided preferential treatment to Caucasian supervisors and employees. Muigai contends that, as a result of Staber’s discrimination and retaliation, UPS took several adverse employment actions against him, including    (a) assigning a major contract involving Sysco systems to another supervisor;   (b) placing him on a performance improvement plan;   (c) denying mileage reimbursement;   (d) removing him from supervisory duties; and   (e) constructively discharging him.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Feb 15,  ..  No New Cases To Post Today.

♦        Feb 14,  .. 7th Cir.:    Pontinen v. U.S. Steel  ..  Russell Pontinen applied to work as a Utility Person at United States Steel Corporation’s (“USS”) Midwest Plant and received a contingent employment offer.   After a diligent investigation, USS discovered that Pontinen suffered from an uncontrolled seizure disorder and imposed work restrictions on him.   The restrictions conflicted with the requirements of the position he applied for, so USS rescinded its employment offer.   Pontinen sued U.S. Steel for disability discrimination under the Americans with Disabilities Act (“ADA”).   He argued that USS illegally discriminated against him on the basis of a real or perceived disability when it rescinded his employment offer.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Feb 14,  .. 5th Cir.:    Bevill v. Fletcher  ..  *** WHAT A CASE, READ ON ***   On April 19, 2017, the Kilgore News Herald published an article in which newly elected state judge, Jeff Fletcher, noted his excitement about working together with Sheriff Tom Castloo and District Attorney James Wheeler.    In the article, Jeff Fletcher also “emphasized the importance of him, a State Judge, staying in line and working in unison with the Sheriff and the District Attorney toward the same goals.”    Two months later, Terry Bevill, the captain of the Quitman Police Department (“QPD”), filed an affidavit supporting a venue transfer for the criminal trial of former Wood County Jail Administrator, David McGee.    The affidavit, which was filed at the request of McGee’s lawyer, stated that McGee would not receive a fair trial in Wood County for facilitating the escape of an inmate and tampering with government records because of the close personal relationships among Defendants.    Bevill was familiar with the [close] relationships between Sheriff Tom Castloo, District Attorney James Wheeler and state judge Jeff Fletcher .”    After learning about police captain Terry Bevill’s affidavit, he Defendants approached Quitman’s mayor, David Dobbs, to discuss Bevill’s continued employment with the Quitman Police Department.    Mayor Dobbs then pressured QPD Police Chief Kelly Cole to fire Bevill.    Plaintiff-Appellee Terry Bevill alleged he was fired from the Quitman Police Department (“QPD”) in retaliation for making unflattering statements about Defendants-Appellants Wood County Sheriff Tom Castloo, Wood County District Attorney James Wheeler, and Texas Judge Jeff Fletcher (collectively, “Defendants”).  ..  COURT DECISION:   (.pdf)   (.html)

♦        Feb 11,  .. 5th Cir.:    Green v. Alief ISD  ..  Appellant Robert Green was a teacher in the Alief ISD from August 2014 until he was fired in December 2018. In May 2018, Green was accused of mishandling a student and Alief ISD investigated. Green was suspended with pay.    During the investigation, Alief ISD discovered that Green had previously been fired, or his teaching contract “nonrenewed,” from other school districts and Green had sued those school districts for race discrimination under Title VII. Those earlier lawsuits were settled.    Green did not disclose that he had previously been fired or nonrenewed. Such a disclosure, however, is required on Alief ISD’s employment application.    H.D. Chambers, the Superintendent, recommended that Green be fired for good cause based on the nondisclosure and Green’s “failure to comply with directives.” Green appealed the decision but was unsuccessful.    He was fired on December 20, 2018.    After Robert Green was fired, he sued his former employer, Alief Independent School District (Alief ISD), in Texas state court for unlawful retaliation. Alief ISD asserted governmental immunity and the state court dismissed the case with prejudice.    Green then sued in federal court alleging unlawful retaliation and race discrimination arising from his firing.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Feb 11,  .. NYAD:    Long v. Aerotek  ..  Plaintiff, a single mother of Asian-American descent, was hired in August 2014 by defendant Aerotek, Inc. and worked in its office in the City of Albany, first as recruiter and then, upon her promotion in August 2015, as an account manager. Plaintiff was supervised by defendant Nicholas LaRocca from January to September 2015, and by defendant Michael Hawkins from January 2016 until she resigned on October 24, 2017.     Plaintiff commenced this action in June 2018, alleging, in relevant part, that defendants violated the Human Rights Law by discriminating against her based upon her gender, familial status and status as a victim of domestic violence, by creating a hostile work environment so extreme that it led to her constructive discharge, and by committing unlawful retaliation.     Plaintiff alleged in particular that LaRocca sexually harassed her while he was her supervisor by, among other things, subjecting her to unwanted sexual contact, propositioning her, threatening to hinder her career if she rebuffed his advances and making discriminatory comments to her and other women.     She asserted that LaRocca continued to engage in impermissible conduct after she began working under Hawkins, including by continuing his sexist comments and actively undermining her standing with coworkers, and that Hawkins also discriminated against her by, among other things, removing her from a senior leadership team and placing her on a performance improvement plan (hereinafter PIP).     Plaintiff further alleged that she was retaliated against because of her complaints about that treatment to defendant Suzanne Russo, one of Aerotek's human resources officials,     and that the situation became so intolerable that she involuntarily resigned .  ..  COURT DECISION:   (.htm)   (.html)

♦        Feb 11,  .. 10th Cir.:    Handy v. Maximus  ..  Maximus Inc. operates a call center specializing in open enrollment for health-insurance benefits. Prime Source Staffing is a staffing agency that provides employees to Maximus. In August 2018, Prime Source hired Ms. Handy to work as a customer-service representative for Maximus. Ms. Handy understood she would work at Maximus during the open-enrollment period from November 1 to December 15, when Maximus promised to hire her as a permanent employee. She successfully completed training and received high quality-assurance scores.    On December 5, Ms. Handy advised Sharon Dorcas, the Maximus office manager who had trained her, that she was experiencing domestic violence. She shared this information in case she would need to take time off from work.    Ms. Handy knew several coworkers had experienced and reported similar domestic-violence issues, and Ms. Dorcas had provided them with accommodations. Ms. Handy then left work early. The next day, Ms. Dorcas informed Ms. Handy that her husband had come to the Maximus office with a gun looking for her. At Ms. Dorcas’s direction, Ms. Handy filed a police report.    Ms. Handy alleges she was terminated as of December 7 via letters dated December 5 (from Ms. Dorcas) and December 6 (from Scott Cloud, another supervisor at Maximus), but she did not learn about her termination until December 10. The letters stated Ms. Handy was being terminated because open enrollment—and thus the contract period—ended.    But she believes she was terminated for “being a white woman” and “for being a victim of domestic violence,” given that her minority coworkers faced no repercussions at work for experiencing domestic-violence issues.    Ms. Handy filed a complaint against Maximus, Prime Source, and three supervisors.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Feb 10,  .. CCA:    Wade v. Starbucks  ..  Plaintiff Wade filed a discrimination, harassment, and wrongful constructive discharge action against her former employer, Starbucks Corporation, and former store manager, Dustin Guthrie.   Wade alleged  (1) Guthrie subjected her to discrimination and harassment based on her gender identity after she informed him that she had been diagnosed with gender dysphoria and was transgender and would be starting a gender-affirming transition from male to female; and  (2) she was forced to resign from Starbucks as a result of Guthrie’s discriminatory and harassing conduct.   Wade’s complaint also sought punitive damages.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Feb 10, 2022  .. FLRA:  VA v. AFGE  ..  The grievant is a Department of Veterans Affairs voluntary service assistant and has been the president of the Union since 2011. From 2017 to 2018, the grievant made a series of disclosures which he believed were protected under the WPA because they related to an alleged “inappropriate relationship” that constituted an alleged “abuse of power and authority” within the Agency.   Subsequently, in August 2018, the Agency proposed removing the grievant due to several acts of misconduct that occurred from 2010 to 2018.   The Agency alleged, among other things, that the grievant had improperly released another employee’s personal health information, had made disparaging comments about another employee’s height, and had made false accusations in his alleged WPA disclosures.   The deciding official found that the only meritorious allegations were the charges regarding the unauthorized release of health information and the disparaging comments.   Consequently, the deciding official did not sustain any of the charges relating to the grievant’s alleged WPA disclosures and issued a five‑day suspension.   The Union filed a grievance and the matter proceeded to arbitration.   At arbitration, the parties stipulated to the following issue: “whether the Agency proved by a preponderance of the evidence it had just and sufficient cause to suspend the grievant, and if not, what remedy is appropriate?”  ..  FLRA DECISION:   (.pdf)   (.html)

♦        Feb 10, 2022  .. 3rd Cir.:    McLintock v. Philadelphia  ..  Appellant, Ms. McLintock, a Caucasian woman, alleged claims of racial discrimination against her employer, the City of Philadelphia, and her supervisor David Jones, is an African American man.   Ms. McLintock reported directly to the Department’s Chief Financial Officer ("CFO"), James Hoefler—a Caucasian man—until he retired in January 2020.   Hoefler made his plan to retire known several years prior to his actual retirement.   Following her last formal evaluation before the filling of the CFO position, McLintock exhibited challenges with interpersonal and supervisory skills.   McLintock stated that a staff, which was "almost entirely African-American", engaged in "ganging up behaviors" and "wanted to fight about everything."   David Jones, an African American, attributed the tensions to McLintock’s lack of interpersonal skills and flexibility.   On June 11, 2019, Joseph Lowry, an African American man, was appointed to CFO.   Two days later, Ms. McLintock filed a discrimination charge with the EEOC and subsequently received a right to sue letter.   McLintock alleges that this initiated a series of retaliatory events which prompted her to file a retaliation charge with the EEOC.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Feb 9, 2022  .. 6th Cir.:    Wood v. Eubanks  ..  Michael Wood wore a shirt bearing the words “Fuck the Police” to the county fair. According to Wood, the defendant police officers ordered him to leave and escorted him from the fairgrounds because of his shirt.   While leaving, Wood made his displeasure known through numerous coarse insults levied at the police and the fairground’s administrator.   The defendants then arrested Wood for disorderly conduct. After the charges were dismissed, Wood filed this action against the officers, alleging false arrest and retaliation.   The district court granted summary judgment to the defendants.   We reverse because Wood’s speech was protected by the First Amendment.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Feb 9, 2022  .. NCA:    State v. Collier  ..  TRAFFIC STOP     Shortly after midnight on December 1, 2017, Collier was driving on a highway in Lancaster County, Nebraska, when he was stopped by Officer Sara Genoways of the Lincoln Police Department for speeding.   Collier was the sole occupant of his vehicle. Upon contacting Collier, Genoways immediately observed that he “appeared extremely nervous, almost to about a hyperactive point.”   Collier struggled to sit still in his vehicle. Instead, he constantly moved around in his seat and fidgeted. Additionally, Collier demonstrated “exaggerated” movements, gestured “wildly” while speaking, and spoke very rapidly.   Collier also avoided making eye contact with Genoways. Genoways believed that Collier’s behavior was “well above and beyond what [she] would typically experience with somebody who [was simply] nervous.”   Instead, she believed that his behavior was consistent with the behavior of someone who was under the influence of drugs. Notably, Genoways did not smell the odor of alcohol or of marijuana in Collier’s vehicle.   Collier agreed to submit to field sobriety testing.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Feb 9, 2022  .. 10th Cir.:    Hale v. Emporia  ..  Ms. Hale is African American. ESU, located in Emporia, Kansas, employed her in its School of Library and Information Management (SLIM) as Assistant to the Dean, Gwen Alexander, Ph.D. Ms. Hale worked in that position pursuant to three temporary appointments from July 2014 to July 2015. Ms. Hale’s husband, Dr. Melvin Hale, also African American, worked as an Assistant Professor in SLIM.    Sometime around the Spring of 2015, Dean Alexander had conversations with ESU’s Provost, David Cordle, Ph.D., about creating a permanent position for Ms. Hale. As explained below, however, that position was never posted.    On April 8, 2015, a Caucasian student who worked with Ms. Hale discovered that someone had written a racial epithet, “NIGGAZ,” in her (the student’s) notebook. The student reported the incident to Ms. Hale, who texted a photo of the epithet to Dr. Hale. Dr. Hale in turn reported the incident to Dean Alexander.    The Hales soon concluded that “Dean Alexander did not plan to do anything about the racist message,” so they met with Provost Cordle on June 26, 2015.    Twelve days later, on July 8, Dean Alexander informed Ms. Hale that her third temporary appointment would expire on August 15 and she would not be given a fourth appointment.    Several weeks later, ESU’s Human Resources Director concluded that   (1) “a common understanding in the department existed that the [permanent] position would be posted in such a way that the result would be [Ms. Hale’s] selection as [the] candidate”; and   (2) Ms. Hale’s “meeting with the provost did play a part in D[ean] Alexander’s decision not to . . . post the vacancy [for the permanent position].”  ..  COURT DECISION:   (.pdf)   (.html)

♦        Feb 9, 2022  .. 10th Cir.:    Lamm v. DeVaughn  ..  Lamm, along with her fellow litigation case manager Velma Thompson, was expected to work forty hours per week at DJ, except on the occasion that a client required work on certain evenings or weekends. DJ’s paid time off (“PTO”) policy permitted employees 120 hours, annually, of PTO.   In the event that an employee exceeded this allotment, she would “be penalized and sent home for one (1) day without pay . . . [and if the employee] continue[d] to go negative[,] . . . more severe consequences [would] occur at the discretion of management up to and including termination.”   In 2015, before she was diagnosed with anxiety, Lamm was warned about her attendance, although she did not exceed the 120-hour allotment set forth by DJ. From January to June 2016, Lamm missed more hours across thirty scheduled work days than DJ’s PTO policy permits in an entire year.   Although Lamm had exceeded her allotted PTO, DJ granted her permission to go on a trip to San Francisco during this time. According to Lamm, in the spring of that year, she began “dealing with numerous panic attacks” and continued to miss work after returning from San Francisco.   In mid-May, her counselor, Kristin Kroeker, diagnosed her with GAD and wrote a letter recommending that Lamm work only half-days when she experienced “intense anxiety.   Lamm provided this letter directly to DJ.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Feb 7, 2022  .. 5th Cir.:    Ruvalcaba v. Angleton  ..  We begin by recounting the factual allegations set forth in Ruvalcaba’s complaint. Ruvalcaba was a ninth-grader at Angleton High School (AHS) in 2014.     On October 7 of that year, she was playing saxophone by herself in one of the school’s music practice rooms when one of her male classmates, “J.F.,” entered the practice room and asked Ruvalcaba to help him prepare for an upcoming competition in which their marching band was to compete.     When she agreed, he used a music stand to block the window in the practice room door so that passersby could not see into the room. He then allegedly ordered Ruvalcaba to get on her knees, at which point he unfastened his pants and forced her to perform oral sex on him.     Later that day, Ruvalcaba informed one of her teachers that J.F. had exposed himself to her, but she did not mention the alleged assault.     The teacher immediately notified AHS Assistant Principal Jay Janczak, who took Ruvalcaba aside and asked her to write down what had happened. When he saw her write the words, “he made me get on my knees and I did,” Janczak took the incomplete statement away and told Ruvalcaba that she could finish it later. Janczak then took Ruvalcaba to the AISD police department’s office, where administrators contacted her mother, Laura Jaso.     When Jaso arrived at the office shortly thereafter, AHS Assistant Principal Christina Todd gave Jaso Ruvalcaba’s written statement from earlier that day. Noticing the statement seemed incomplete, Jaso asked Todd what else had happened, to which Todd replied, “We are investigating. . . . We’ll look into it tomorrow. We need to determine if it’s a crime,” but also warned that J.F. had not been “told not to come to school.”     Later, as Jaso was on her way home with Ruvalcaba, Ruvalcaba alleged for the first time that J.F. had forced her to perform oral sex on him.     Jaso immediately took Ruvalcaba to the municipal police station. to report the assault. Angleton police, upon hearing Ruvalcaba’s account, contacted AISD, which sent an AISD police officer and AHS Principal Jerry Crowell to speak with Ruvalcaba at the station.     Crowell, upon arriving at the station, first asked to speak to Ruvalcaba alone. According to the complaint, Crowell then commented in the presence of Ruvalcaba, Jaso, and several officers that, “women lie about these things all the time.”     Crowell proceeded to take Ruvalcaba into a separate room for questioning. After several minutes, Jaso became concerned and opened the door to the room to find Ruvalcaba on the floor on her hands and knees, with Crowell sitting several feet away in an office chair. Jaso demanded an explanation of what was happening, to which Crowell allegedly replied, “I didn’t do anything;     I just needed her to show me in order to investigate.” Jaso then took her daughter, who was crying, and left the station.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Feb 4, 2022  .. 3rd Cir.:    James v. AC Moore Arts and Craft  ..  A.C. Moore hired James in 2009 as a part-time Activities Specialist, a position that emphasized “flexibility” in duties, including stocking and checkout. (App. at 862.) In 2011, A.C. Moore revised James’s job description to add product promotion and class instruction.   In 2013, A.C. Moore implemented a “Static Schedule,” assigning all employees regular shifts that reduced the number of scheduled hours per week for most positions, including the Activities Specialist.   In response, James filed an age discrimination charge with the DDOL. A second charge followed, alleging retaliation for the first charge because of reduced hours, changed responsibilities, and negative performance reviews.   A third charge again alleged retaliation based on adverse work assignments. And a fourth charge related to workplace lockers.   Complaining of cold conditions in the store, James voluntarily resigned in March 2018.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Feb 4, 2022  .. 11th Cir.:    Cummings v. Mitchell (AUMC)  ..  Starting in 2007, Cummings, an African American female, worked as a radiographer for Augusta University Medical Center, Inc. (AUMC).   Relevant to this appeal, Lewis Golden and Layne Mitchell, Caucasian males, served in supervisory roles over Cummings.   Throughout her employment with AUMC, Cummings applied for a variety of promotions to full-time positions but was not selected.   Ultimately, in September 2017, Cummings voluntarily resigned from AUMC.   Cummings sued AUMC, Golden, and Mitchell (collectively, Defendants) for race discrimination, retaliation, hostile work environment, and constructive discharge.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Feb 3, 2022  .. 5th Cir.:    Brown v. Old Dominion Freight  ..  Old Dominion has a sophisticated system for tracking its drivers’ whereabouts. Drivers clock in at the beginning of each shift by scanning their fingerprints on a biometric time clock at the service center. Once in their assigned trucks, drivers log into an onboard recording device called the Blu system.    Blu tracks the drivers’ movements in real time and automatically logs them as off duty if their trucks sit idle for more than a few minutes.    Drivers confirm their duty status in Blu manually. They also provide more detailed reports throughout the day using handheld devices. The company requires drivers to log certain information via the handhelds, including their driving status (i.e., “en route,” “delay”).    Mr. Brown worked as truck driver for Old Dominion Freight Line, Inc., a global transportation company with a service center in Richland, Mississippi.    In 2018, Old Dominion fired Brown over inconsistencies in his time reports. Brown then sued Old Dominion and one of its supervisors for racial discrimination and various state torts.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Feb 3, 2022  .. FLRA:  AFGE v. HUD  ..  The grievant occupies a General Schedule, Grade 12 (GS‑12) permanent position with the Agency. In 2013, the grievant’s supervisor (the supervisor) shifted the grievant’s work responsibilities to include only special projects that were outside her GS‑12 position description (the new duties). These duties were not part of any existing position description (PD).    Several years after undertaking the new duties, the grievant requested a desk audit. Instead, the Agency’s personnel contractor recommended processing an accretion‑of‑duties promotion.    After the grievant worked unsuccessfully to obtain a promotion and compensation for newly assigned duties that were outside the scope of her position description, she resorted to the negotiated grievance procedure in search of relief.    Arbitrator Richard L. Ahearn dismissed the grievance as substantively nonarbitrable under § 7121(c)(5) of the Federal Service Labor‑Management Relations Statute (the Statute),[1] concluding that the essential nature of the grievance concerned classification.    The Union has filed several exceptions challenging that conclusion.  ..  FLRA DECISION:   (.pdf)   (.html)

♦        Feb 3, 2022  .. 11th Cir.:    Lacy v. Huntsville  ..  Lacy’s Notice of Disciplinary Action for Unsafe Driving Lacy’s amended complaint alleged these facts.    On August 22, 2018, while driving a city bus, Lacy had to stop suddenly because a truck traveling ahead of her bus abruptly stopped. As a result of the abrupt stop, one or more bus passengers (who were not wearing seatbelts) were injured.    The City requested a formal disciplinary hearing because it was considering suspending, demoting, or terminating Lacy. J. Thomas Brown, the Director of Public Parking and Transit, signed the City’s request.    That request stated that the City was considering disciplinary action for violations of these sections of the City of Huntsville Policies and Procedures Manual:   (1)   incompetence, malfeasance, or misfeasance in the performance of duties,   (2) neglect or inefficiency in the performance of duties,   (3) disregard of safety rules and regulations, and   (4) habitual, or repetitive acts of misconduct, violations of policy, and/or infractions of rules and regulations.    The City’s request also stated that Lacy had been involved in three prior incidents of unsafe driving since September 2013:   (1) on September 3, 2013, she received a written warning for passing buses,   (2) on August 8, 2014, she was suspended for ten days for not stopping at a railroad crossing, turning right without stopping, and not activating 2-way flashers, and   (3) on November 2, 2017, she received a written warning and was required to take a refresher defensive driving course for a preventable accident in which Lacy struck the left rear side panel of a truck that had stopped in front of her bus.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Feb 3, 2022  .. 3rd Cir.:    Rugamba v. CRST  ..  Appellant Mr. Rugamba filed a complaint alleging a First Amendment violation, wrongful termination, and negligence against his employer, several supervisors, and 2 unidentified employees of the Department of Motor Vehicles (“DMV”) in Iowa based on a variety of issues he faced while working as a truck driver.1 Rugamba alleged that, during his commercial drivers license test, the DMV defendants “broke into” his computer and made the test “disappear from [his] screen.” His license was downgraded as a result.   Rugamba then claimed that his supervisors engaged in various “schemes” and “pernicious acts.” According to the complaint, the supervisors caused Rugamba to go long periods of time without work assignments. He claimed that he made $2800 over 5 months, which was “too little for someone who was available . . . everyday.”   The supervisors then allegedly attempted to make Rugamba “responsible for the damages caused by others on trucks.” Specifically, they asked him to drive a tractor with a “cracked windshield, collapsing steering column, and no registration,” but Rugamba declined.   He also claimed that the supervisors instructed a repair shop to disable the “opt-idle engine management system, which regulates heat,” in an attempt to “bring about [his] demise by freezing to death.”   His supervisors also “disrupt[ed] his deliveries” in various ways.   He did not expressly indicate in his complaint if he was terminated or if he resigned, but stated that he “came to the conclusion that a reasonable driver would have quit long ago” and that he told his supervisors that he was “returning the tractor to the HQ.”  ..  COURT DECISION:   (.pdf)   (.html)


♦        Feb 2, 2022  .. 3rd Cir.:    Yoho v. Mellon Bank  ..  Yoho worked as a Senior Wholesaler for Bank of New York Mellon (BNYM) from February 2005 through September 2016.   Though he excelled in this role and was considered a top performer, Yoho was terminated following an internal investigation into alleged misconduct toward female coworkers at August 2016 sales conferences in Chicago and San Diego.   Specifically, Yoho allegedly:   (1) told coworker Christine Noland “‘your fat ass gives me such a hard-on’ or words to that effect,”   (2) placed a late-night call to Britney Curtin, a junior coworker, inviting her to his hotel room;   (3) told coworker Audrey Seybert she was “too old for him to date,” and on another occasion touched her lower back in a way that made her uncomfortable, and   (4) told coworker Bria Gilbert her Australian accent was “sexy” and that he wanted to use her picture in his marketing materials to increase his sales.   Noland brought these allegations to the attention of Raymond Pruett, Yoho’s “second-level” manager, who, in turn, communicated these complaints to BNYM’s Human Resources Department, which started the investigation.   An employee named Thomas Galante headed that investigation, reporting to a group made up of BNYM in-house lawyers, HR personnel, Pruett, and Pruett’s supervisor, Joe Moran. Galante interviewed Pruett, Noland, Curtin, Seybert, Gilbert, an employee named Nick Vanderlinden, and Yoho.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Feb 2, 2022  .. Fed. Cir.:    Edler v. DVA  ..  In November 2009, Edler began working for the VA as a housekeeper at the Veterans Health Administration Facility in Chillicothe, Ohio. In October 2010, the VA promoted Edler to the position of housekeeping supervisor. In that capacity, Edler supervised approximately 13 employees on third shift.   On March 29, 2020, Edler conducted a team meeting, referred to as a “team huddle.”   During this team huddle, Edler made three comments that are relevant to this appeal. First, Edler informed the team that several employees were unable “to work in rooms used to treat COVID-19 patients.”   In doing so, Edler “identified each affected employee and announced the specific medical condition that precluded him or her from doing the work.” Id. Second, Edler made several comments about an employee, B.L., “who needed to be fit-tested for a mask but had not yet shaved his beard, which was necessary for the proper fit.”   Edler told B.L. that if he failed to shave his beard to be fitted for an N95 mask he risked bringing COVID-19 home to his family.   Edler also told B.L. that if he failed to comply, he would likely be terminated and walked out to Route 104, which is the highway that runs outside the Chillicothe, VA facility.   Third, while explaining the COVID-19 situation that his team faced, Edler made comments about Somali refugees in Michigan.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Feb 1, 2022  .. ACI:    Regaldo v. Randall  ..  After six years with the Forest Preserve District of Cook County, John Regalado was fired.   Regalado’s superiors, including defendant Arnold Randall, claimed they terminated him because   he did not get along with other department directors and engaged in non-work-related activity while on the job. But Regalado believed his termination stemmed from his protected whistleblower activity, namely, informing the Cook County Inspector General that a co-worker made false statements in a sexual harassment investigation.   Regalado filed a three-count complaint against Randall, the District, and Cook County alleging (i) Illinois Whistleblower Act violations, (ii) retaliatory discharge, and (iii) intentional infliction of emotional distress.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Feb 1, 2022  .. 3rd Cir.:    McCall v. Kane  ..  In February 2020, McCall filed a complaint in the District Court alleging that the Equal Employment Opportunity Commission (“EEOC”) and several of its employees mishandled a charge he filed against his former employer. McCall sought punitive damages.   After granting McCall’s application to proceed IFP, the District Court screened his complaint and dismissed it after adopting a Magistrate Judge’s report and recommendation. The District Court determined that amendment would be futile. McCall timely appealed.   We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We construe McCall’s allegations liberally and exercise plenary review over the District Court’s order dismissing McCall’s complaint.   McCall alleged that he was wrongly fired and that his employer lied to the EEOC and covered up evidence. He also complained that an EEOC investigator sought to conduct mediation electronically rather than in person and that the EEOC permitted his employer to take more than a year to respond to his complaint after he requested in-person mediation.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Feb 1, 2022  .. CCA:    Stefanac v. Dome  ..  Dome is a commercial construction company headquartered in San Francisco. Ms. Stefanac is a carpenter who worked for Dome at various times, most recently in 2020, at a construction site in Newark, the employment that gave rise to the dispute here, which employment will be discussed in more detail below.   As described in a complaint Ms. Stefanac would come to file, she first worked for Dome in 2017, at a site in Marin County. And according to that complaint—which, of course, contains only allegations—Ms. Stefanac’s first experience was not uneventful. To the contrary, Ms. Stefanac, a lesbian, described that she was working at the BioMarin site in Novato alongside co- workers Craig Bell and Joaquin Gutierrez. Gutierrez was using a heavy wrecking bar to demolish flooring, and Ms. Stefanac suggested that Bell remove his dark shades in the dimly lit work area. Bell then began taunting and threatening her, making comments such as “Hit that bitch, Joaquin! Hit that motherfucking bitch with the bar!” Bell also made vulgar sexual remarks and comments about “shooting [plaintiff] in the motherfucking face.”   Ms. Stefanac reported this incident to the foreman, Doug Oram, superintendent Mike Wade, human resources manager Michelle Austin, and field manager, Steve Ballardo.   Wade terminated Bell and informed the crew members they could be terminated for similar behavior. And in doing so, he identified Ms. Stefanac as the complainant.   However, Ms. Stefanac alleged, this did not prevent similar behavior, but rather made her “a target for further harassment, discrimination, and retaliation that would recur on an ongoing and continuous basis for several years.”  ..  COURT DECISION:   (.pdf)   (.html)

♦        Feb 1, 2022  .. D.D.C.:    Davage v. DCHA  ..  Da’Vage worked as a construction and housing inspector for the District Of Columbia Housing Authority (DCHA) for roughly ten years.   Although the complaint is not entirely clear on this point, it appears that the events underlying the current dispute began when DCHA opened an investigation in late 2017 into allegations of “unauthorized gas card usage” by Da’Vage during his time with DCHA.   According to Gillis’s “affidavit,” this investigation began in November 2017 because the gas card in question “was shown to have expenditures far exceeding the expenditures on other cards that had been issued to other employees and [because] some of the purchases had been made after work hours.”   Da’Vage learned of this investigation on Thursday, December 14, 2017, when his immediate manager “questioned [him] about unauthorized gas card usage.”   On December 19, 2017, Gillis—the president of Da’Vage’s union—called Da’Vage to inform him that DCHA’s labor and employee relations manager, Ronnie Thaxton informed her that DCHA planed to terminate him based on “the findings of the investigation . . . coupled with the fact” that Da’Vage had been suspended for “[d]ishonesty” for three days on November 3, 2017, “for driving [a] government vehicle in Maryland and having an unauthorized passenger in the vehicle.”  ..  COURT DECISION:   (.pdf)   (.html)


♦       Jan 31, 2022  .. SJCM:    Sarchi v. Uber  ..  Ms. Sarchi is blind and uses a guide dog. With the help of her son, Sarchi registered for an Uber rider account in June 2015 through the Uber app on her phone.   On January 5, 2017, Ms. Sarchi, accompanied by her guide dog, attended a manicure appointment.   After the appointment, she asked her manicurist to call her a taxi, and he suggested that she use Uber. Despite having downloaded the app in 2015, Sarchi had not used Uber.   The manicurist used Sarchi’s Uber app to request a ride for her. When the Uber driver arrived, he refused to drive Sarchi because of her guide dog.   Before filing her complaint in the Superior Court, Sarchi filed a complaint with the Commission, and the Commission investigated and found reasonable grounds to believe that discrimination occurred.   Sarchi and the Commission filed a complaint on April 23, 2020, alleging that Uber, through the act of its driver, had violated [the Maine Human Rights Act].   Uber moved to compel Sarchi to arbitrate, and to dismiss or stay the action pending arbitration.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Jan 31, 2022  .. CSC:    Lawson v. PPG  ..  From 2015 until he was fired in 2017, plaintiff Mr. Lawson worked as a territory manager for defendant PPG Architectural Finishes, Inc. (PPG), a paint and coatings manufacturer.    Lawson was responsible for stocking and merchandising PPG paint products in Lowe’s home improvement stores in Southern California. PPG used two metrics to evaluate Lawson’s performance: his ability to meet sales goals, and his scores on so-called market walks, during which PPG managers shadowed Lawson to evaluate his rapport with Lowe’s staff and customers, among other things.    Lawson’s direct supervisor, Clarence Moore, attended all but the first of these market walks. On that first market walk, Lawson received the highest possible rating, but the positive evaluations did not last and his market walk scores soon took a nosedive.    Lawson also frequently missed his monthly sales targets.    In spring 2017, PPG placed Lawson on a performance improvement plan.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Jan 31, 2022  .. CCA:    Ross v. Madera  ..  A jury found in favor of plaintiff Ms. Ross and against her former employer, defendant County of Madera (County), for violations of the California Fair Employment and Housing Act (FEHA), arising from retaliation and failure to prevent retaliation.   The jury awarded Ms. Ross a total of $2 million in economic and noneconomic damages.   The County moved for judgment notwithstanding the verdict (JNOV) and a new trial.   While the trial court denied the motion for JNOV, it partially granted the new trial motion.   The trial court found four incidents of attorney misconduct and an instructional error, the cumulative effect of which prevented the County from having a fair trial, and the damages awarded were excessive.   Ross appeals from the order granting the new trial, while the County cross-appeals from the order denying its motion for JNOV.  ..  COURT DECISION:   (.pdf)   (.html)

♦        Jan 31, 2022  .. D.C.CA:    Howard Univ v. Lyles  ..  Mr. Lyles first injured his upper right arm in 2011 while working for a different employer which is not a party to this litigation.   His workers’ compensation claim for this first injury was settled.   On April 29, 2013, while working as a radiological technician for Howard University, he sustained a second injury to the same arm and filed a workers’ compensation claim for a PPD schedule award.   An administrative law judge (“ALJ”) held a full evidentiary hearing on February 8, 2017. After a lengthy procedural history, including multiple opinions from the ALJ and the CRB, and a remand from this court.   The ALJ most recently concluded that Mr. Lyles had proven a total PPD of 30% to his upper right arm.   Of this 30% PPD, 20% was attributable to the 2011 injury, and 10% was attributable to the 2013 injury that Mr. Lyles incurred while working for Howard University.   The only issue remaining on appeal is how much of Mr. Lyles’s total PPD schedule award must be compensated by Howard University.  ..  COURT DECISION:   (.pdf)   (.html)


♦       Jan 27, 2022  .. 6th Cir.:    Simon v. Brewer  ..  In Feb 2013, Ms. Simon, a 33-year-old tutor at Catholic Central High School in Grand Rapids, began a sexual relationship with a 15-year-old sophomore whom she tutored, B.B.    The two met several times to have sex, and frequently texted about their feelings for one another and about their desire to engage in more sex.    The relationship lasted for several months, until B.B.’s mother found photos on B.B.’s phone of Simon wearing lingerie.    B.B.’s mother called the police, who interviewed Simon, who denied having sex with B.B. The police did not believe her; in August 2013, Simon was arrested and charged with four counts of criminal sexual conduct.    At a hearing to determine probable cause for those offenses, B.B. testified that he had forced Simon to have sex with him.    At Simon’s trial, however, B.B. recanted that testimony and said that he had been trying to protect Simon at the hearing.    Instead, at trial, B.B. testified that Ms. Simon had engaged in sex with him voluntarily.    Simon, for her part, testified at trial that B.B. had raped her each time.    The State impeached that testimony by presenting scores of text messages between Simon and B.B, many of which were sexual in nature.    At the close of trial, the principal question before the jury was whether Simon had engaged in sex with B.B. voluntarily.  ..  DECISION:   (.pdf)   (.html)

♦       Jan 27, 2022  .. 6th Cir.:    Kinney v. McDonough  ..  Plaintiff-appellant Ms. Kinney was employed as a Licensed Practical Nurse (LPN) on the Patient Aligned Care Team (PACT) at the Battle Creek VA Medical Center in Battle Creek, Michigan.    She filed her first formal Equal Employment Opportunity (EEO) complaint in March 2011. That complaint was resolved through a settlement agreement the following month.    On February 26, 2016, Kinney filed another EEO complaint alleging that she experienced retaliation for her prior EEO activity and a hostile work environment.    The VA’s Office of Resolution Management (ORM) accepted the following claims and bases related to Kinney’s February 26, 2016, EEO complaint: ... continued  ..  DECISION:   (.pdf)   (.html)

♦       Jan 27, 2022  .. FLRA:  Air Force v. AFGE  ..  On March 12, 2020,[1] the Union sent the Agency a variety of proposals relating to in‑person employment during the COVID-19 pandemic—including personal protective equipment, hand sanitizer, cleaning products, and hazard pay. This dispute arose after the parties could not agree on whether the Agency owed any bargaining-unit employees (BUEs) hazard pay for working in‑person during the pandemic. Consequently, the Union filed a grievance on June 9, claiming that the Agency was failing to guarantee the safety of BUEs and pay hazard pay for work performed during the pandemic. The Agency denied the grievance and the parties proceeded to arbitration. Pursuant to the parties’ agreement, the parties bifurcated the issue of arbitrability and submitted briefs to the Arbitrator on that issue.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Jan 27, 2022  .. 6th Cir.:    Bush v. ProMedica  ..  Ms. Bush worked at ProMedica Toledo Hospital in Ohio as a patient-registration specialist.     In 2013, Bush began working at ProMedica as a Registration Specialist. Her job was to register patients and place them in the correct rooms. ProMedica provided two on-site parking lots for employees and assigned Bush to one of those lots to park her car. ProMedica’s official policy requires its employees to park in their assigned parking lots and prohibits them from parking anywhere else, including on the surface parking lot next to the Emergency Room (the “ER parking lot”).     ProMedica’s security officers monitor the ER parking lot to keep the parking spaces available for patients who require emergency care.     In 2017, Bush was responsible for registering patients in ProMedica’s Emergency Room department (the “ER”). Early in the morning on June 30, 2017, Bush parked in the ER parking lot, clocked in to start her shift, and planned—after clocking in—to leave her workstation to remove her car from the ER parking lot.     As Bush was leaving the ER parking lot to clock in, Tiffany Allore, a ProMedica security officer, asked Bush to move her car. Bush responded that she would move her car after she clocked in. As Bush was returning to her car after clocking in, Allore warned Bush not to park in the ER parking lot again.     Bush, apparently offended, told Allore “to stop watching me like I’m her woman and that I have a man.”     Bush removed her car from the ER parking lot, but Allore and another security officer (named John) confronted Bush about her previous comment to Allore. According to Bush, John demanded to see her badge, but she refused because she did not know John and he was not wearing a security-officer uniform. Eventually, Bush put John and Allore on the phone with the patient registration office and everyone returned to work. Bush and Allore filed complaints against each other.  ..  COURT DECISION:   (.pdf)   (.html)



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