♦ HEY RUSSIA , ... DON'T DO WHAT WE DO ... DO WHAT WE SAY !!! : while it may be true that the united states would never allow an enemy country to place missiles in any country or territory on or near the united states border, you can not do what we do. Also, the united states does not believe that a big country should be able to invade and occupy a smaller and weaker country. such bullying behavior is against our beliefs.
♦ 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, 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)
♦ WAITED IN LINE FOR THE FREE GOVERNMENT FACE MASKS .. Yep, waited one hour and 15 minutes. driving past the local library, i notice a few people standing in line. i laughed at those suckers, until i remembered hearing on the radio that the local libraries were going to be handing out official N95 face masks. the official temperature was 35 degrees. but the wind was blowing so hard it felt like 15 degrees (wind-chill-factor) standing in line, i watched as a steady parade of people passed by ... headed for the back of the line. old folks, middle aged folks, young adults. as an old lady with a walker neared, i had an urge to give her my spot and go to the back of the line. i continued thinking that thought as she wheeled on by. i looked back and noted that line behind was 2 times longer than the line in front of me. finally the line started to move. at the end of the wait, each adult was given 4 official n95 face masks. getting home with the 4 free n95 masks, i tried one on. the mask fitted well and appeared to be top quality. with an adjustable metal strip that bent over the top of my nose i wondered if the masks were "legit". checking online, i found the masks were indeed the "real deal", HHS approved. they are good masks. thank you, government. i also wondered if it was cost effective to have waited 1 hour and 15 minutes to receive 4 n95 masks. going online, i found the exact same masks at amazon.com. ZONG YI MASK ZYB-11 N95 Particulate Respitator a 20 mask box costs $16.99 (85 cents each). assuming my time is worth 16 an hour. my 1 hour and 15 minute wait in line cost $20 DOLLARS so i spent $20 to receive $3.40 worth of masks. Not Smart. next time, ill just bye a 20 pack box at amazon for $16.99 and save myself the time and effort. .. SEE THE MASKS: https://www.amazon.com/ZYB-respirator-Pack-NIOSH-Certified/dp/B086WDP8T6 or just search B086WDP8T6 on amazon.com .
♦ Jan 26, 2022 .. FLRA: Prisons v. AFGE .. In a 2016 award, now-deceased Arbitrator Wallace Rudolph found that the Agency violated the Fair Labor Standards Act (FLSA) by failing to compensate employees for work performed during unpaid lunch breaks. Arbitrator Rudolph retained jurisdiction to address “any disputes that may arise[,] in addition to any future claims for [a]ttorneys’ fees.” After Arbitrator Rudolph’s passing, the parties selected Arbitrator Kitty Grubb for the purpose of resolving any entitlement to attorney fees. Arbitrator Grubb, at the Union’s request, also asserted jurisdiction over the Union’s claim that the Agency had continued to violate the FLSA after issuance of the Rudolph award. And in 2019, Arbitrator Grubb issued an award finding that the Agency had continued to violate the FLSA, as alleged. The Agency’s exceptions primarily challenge Arbitrator Grubb’s assertion of jurisdiction over the continuing FLSA violations. .. FLRA DECISION: (.pdf) (.html)
♦ Jan 26, 2022 .. FLRA: U.S. Army Corps of Engineers v. AFGE .. The U.S. Army Corps of Engineers (The Agency) operates locks and dams. In an effort to create leadership opportunities for the staff, the Agency established a “working supervisor” position at each facility. This new staffing model required the Agency to eliminate a bargaining-unit position. The parties engaged in impact and implementation bargaining that resulted in a Memorandum Of Understanding (MOU) that addressed the employees’ schedule changes due to the addition of the working supervisor position. Two years later, the Agency transitioned its navigation season on short notice, causing staffing shortages for three days at one facility. When the working supervisor at that facility covered the shift vacancies, the Union filed a grievance alleging that this action denied employees opportunities to work overtime. The parties could not resolve the matter and it went to arbitration. Arbitrator Michael A. Wojick issued an award finding that the Agency violated the parties’ collective-bargaining agreement and a memorandum of understanding (MOU) when a supervisor covered bargaining-unit shift vacancies instead of offering overtime work to bargaining-unit employees (employees). The Agency filed exceptions to the award on essence, contrary-to-law, nonfact, and exceeds-authority grounds. .. FLRA DECISION: (.pdf) (.html)
♦ Jan 26, 2022 .. VCA: Hayes v. V_DMV .. Appellant, who had been employed by DMV for approximately thirty-two years, was the office manager at the Alexandria DMV customer service center (“the CSC”). In December 2019, the CSC was undergoing renovations. The building was vacant, and no employees were scheduled to work during the renovations. On December 13, a demolition contractor reported to a DMV deputy director that five vehicles and a trailer were in the parking lot and would become a “major issue” on December 16, when demolition commenced. The contractor advised that, according to a security guard, the vehicles “appear[ed] to have been abandoned for months.” Two of the vehicles did not have license plates. When asked about the cars, appellant told two DMV managers that four of the vehicles belonged to residents of an adjacent apartment complex and he would ask them to move their cars. On December 16, appellant represented that he had asked these owners to move their vehicles. Agent Ryan Woods, of DMV’s law enforcement division, was assigned to investigate the four vehicles. Agent Woods discovered that the residents of the adjacent apartment complex did not, in fact, own any of the cars. Appellant owned two of them, a Nissan Altima and an Infiniti G35. The other cars, an Oldsmobile Cutlass and a Toyota Sequoia, belonged to two of appellant’s acquaintances — the owner of an auto repair shop, José Velasquez, and the shop’s mechanic, Luis Orellana. .. COURT DECISION: (.pdf) (.html)
♦ Jan 25, 2022 .. 7th Cir.: Smith v. Evans .. Mr. Smith worked as a probation officer with the Cook County Juvenile Probation and Court Services Department until 2018. Before he left the job, he was elected vice- president of his union. According to Smith, his county supervisors retaliated against his union-based opposition to workplace race discrimination by changing his work schedule and maligning him. These actions prompted him to resign in 2018 and to begin work with the City of Chicago. After he resigned, he alleges, county workers falsely told the City that the County had fired him for disciplinary reasons. The City of Chicago then fired him. After filing with the EEOC a charge about the City of Chicago’s discharge, Smith filed these two suits. .. COURT DECISION: (.pdf) (.html)
♦ Jan 25, 2022 .. 11th Cir.: Bosarge v. MAWSS .. Defendant Mobile Area Water and Sewer Service (“MAWSS”) is a public entity that does business in Mobile County, Alabama. MAWSS hired Plaintiff Mr. Bosarge to fill an Auto Service Worker (“ASW”) I position in June 2013 and promoted Plain- tiff to an ASW II position in July 2014. MAWSS garage supervisor Charles Sumrall supervised Plaintiff in both ASW positions. Defendants Sharon King and Fatima Washington were, at all relevant times, MAWSS Human Resources (“HR”) officers. Plaintiff was diagnosed with multiple sclerosis (“MS”) in 2000. In September 2015, Plaintiff requested Family and Medical Leave Act (“FMLA”) intermittent leave for occasional absences and tardiness related to his MS. In support of Plaintiff’s request, his treating physician, Dr. Terry Millette, submitted an FMLA form to MAWSS in October 2015 certifying that Plaintiff had a serious health condition (MS), which caused episodic flare-ups that periodically prevented Plaintiff from performing his job functions and re-quired him to be absent from work. Based on the information pro-vided by Dr. Millette on the October 2015 form, MAWSS granted Plaintiff’s request for intermittent FMLA leave. In May 2016, MAWSS posted a job vacancy for a Vehicular/Equipment Mechanic position with the Mobile County Personnel Board. As described in the posting, the duties of the Mechanic position included, among other things: inspecting, maintaining, and repairing MAWSS vehicles, test driving vehicles to ensure proper operation, operating a tow truck when necessary, and making repairs to vehicles in the field as necessary. ... continued .. COURT DECISION: (.pdf) (.html)
♦ Jan 25, 2022 .. 6th Cir.: Aday v. Westfield .. In July 2005, Westfield Insurance Company (“Westfield”), a subsidiary of Ohio Farmers Insurance Company (“Ohio Farmers,” collectively “Defendants”), hired Plaintiff as an insurance claims specialist at its Blue Ash, Ohio office. Prior to joining Westfield, Plaintiff had gained approximately 28 years of experience in the insurance industry, including 12 years in leadership roles. For approximately the first five years of his career at Westfield, Plaintiff specialized in handling construction defect claims. Then, in 2010, he was promoted to the position of Auto Unit Leader in the Auto Division where he remained for six years. As Auto Unit Leader, Plaintiff managed a team of claim representatives and he consistently received outstanding performance reviews from his supervisors and direct reports. In April 2017, when he was 63 years old, Plaintiff notified Defendants he would be moving to Seattle, Washington because his domestic partner, Moira Tamayo, had accepted an executive- level position in the city. Plaintiff made clear that he wanted to remain employed with Westfield, preferably working remotely in his litigation claims specialist role. At that time, Plaintiff’s workload was primarily based in Ohio and Kentucky. Defendants denied his request to work remotely, but allowed him to remain in the position in Cincinnati as long as he wished. .. COURT DECISION: (.pdf) (.html)
♦ Jan 24, 2022 .. No New Cases To Post Today.
♦ Jan 21, 2022 .. DOJ OIG INVESTIGATIONS : Misconduct by Senior FBI Official for Failure to Timely Report a Romantic Relationship with a Subordinate, Lack of Candor, and Related Misconduct; and by another (now Retired) Senior FBI Official for Failure to Mitigate Consequences of the Relationship. (.pdf)
♦ Jan 21, 2022 .. FLRA: VA (oit) v. AFGE .. The grievant has been employed at the Agency for over 18 years with no prior history of disciplinary action. When her son fell ill, she requested sick leave until further notice and told the Agency that she would provide an update the following week. However, the grievant remained absent from work for over two months and failed to communicate with the Agency during this time. The Agency attempted to contact the grievant several times during her prolonged absence regarding an update. After multiple failed attempts, the Agency eventually issued the grievant a three-day suspension for AWOL. The Union grieved the suspension and the grievance was submitted to arbitration. The Arbitrator defined the issue as: “Was the Agency’s three-day suspension of the [g]rievant . . . for just and sufficient cause? If not, what shall be the remedy?” .. FLRA DECISION: (.pdf) (.html)
♦ Jan 21, 2022 .. CCA: Thompson v. Pasadena .. Thompson, a trained plumber, worked for the City for 23 years, most recently as a utility service planning supervisor in both the water and power supply divisions. In 2012 Aurora Isabel, a City employee in a different department, sued the City for discrimination, retaliation and sexual harassment in violation of FEHA, alleging, in part, she was denied a promotion due to discrimination and retaliation by her direct supervisor. In May 2014, while Isabel’s lawsuit was pending, the City transferred her to Thompson’s department. The City’s human resources director told Thompson that Isabel had a pending lawsuit against the City and that, when evaluating her, he should take a “kinder and softer” approach. In September 2015 Thompson wrote a favorable performance evaluation for Isabel, recommending her for a promotion. He shared his performance review with Isabel. Thompson testified at trial he did not know much about Isabel’s pending lawsuit at the time he wrote her performance review and did not fill out the evaluation with that in mind. Thompson’s actions angered his supervisor, Joe Awad, who told Thompson he violated City policy by not obtaining Awad’s approval before recommending a subordinate for a promotion. Thompson had recommended other people for promotion without consequences and was surprised by Awad’s reaction. Following Thompson’s favorable performance evaluation for Isabel and his truthful testimony at her trial in November 2015, Thompson asserted, the City retaliated against him. .. COURT DECISION: (.pdf) (.html)
♦ Jan 20, 2022 .. 11th Cir.: Towns v. Directors Guild of America, .. Mr. Towns, an African-American man, has worked for decades in the film and television industry. In 2019, And Action, LLC, hired Towns to work as the unit production manager for a television series, The Have & Have Nots, filmed in Georgia. DGA is the labor union that serves as the collective bar- gaining agent for directors, assistant directors, and unit production managers working in the film and television industry. Towns is a member of DGA. Shortly after Towns moved to Georgia and began working for And Action, DGA notified the company that Towns was not included on the Third Area’s qualification list for unit production managers. DGA warned And Action that it was in violation of the Basic Agreement and could face monetary penalties for employing Towns as a unit production manager. And Action notified Towns that he could not continue working unless he could produce documentation to establish that he satisfied the work experience requirement to appear on the Third Area’s qualification list. When Towns was unable to produce sufficient documentation to establish that he should be included on the qualification list, And Action terminated his employment. .. COURT DECISION: (.pdf) (.html)
♦ Jan 20, 2022 .. 4th Cir.: Jessup v. Barnes .. In 2000, Mr. Jessup began to work as a regional sales manager for [Barnes Group, Inc.] (“Barnes”), “a global provider of highly engineered products, differentiated industrial technologies, and innovative solutions.” He eventually became a business development manager for another Barnes subsidiary. On January 9, 2018, a psychologist provided Barnes a return-to-work certification for Jessup, stating that he was “formal[ly] release[d] to return to full time employment, free of all medical restrictions.” Just over a week later, on January 17, 2018, Barnes sent Jessup a letter as “official confirmation of [his] termination, effective November 17, 2017.” The letter was backdated to January 8, 2018, the day before Barnes received Jessup’s return-to-work certification. The letter noted that Jessup had begun to take “leave on July 19, 2017” and had “been on leave ever since,” and that his “medical issues” had “precluded [him] from performing the essential functions of [his] job.” Jessup then filed a civil action against Barnes in South Carolina state court, alleging three ADA claims: (1) wrongful termination; (2) failure to accommodate; and (3) a hostile work environment. .. COURT DECISION: (.pdf) (.html)
♦ Jan 19, 2022 .. NYAD: Sedhom v. SUNY .. Plaintiff alleges that defendants discriminated against her and terminated her employment at defendant SUNY Downstate Medical Center on the basis of her age. Among other things, plaintiff alleges that defendant Maria Silas demanded that plaintiff disclose her age and made remarks suggesting that plaintiff was too old to continue working at SUNY Downstate. Plaintiff also alleged that defendants created a hostile work environment when defendant Daisy Cruz-Richman, among other things, shouted at plaintiff in front of her subordinates, instructed SUNY faculty not to contact her while she was on sick leave, and disparaged her to her students. .. COURT DECISION: (.pdf) (.html)
♦ Jan 19, 2022 .. 6th Cir.: Papierz v. Benteler Auto .. Benteler manufactures metal products for automobiles. Anticipating a drop in sales, the company instituted a reduction in force, resulting in the termination of over 30 employees, including Papierz. In making its termination decisions, Benteler considered employees’ performance appraisals, attendance, and attitude. Papierz did not fare well under those three metrics. His overall performance was rated as “average” on his most recent formal performance appraisal. He was deemed to have poor attendance, as reflected by three recent absences. And as to his attitude, which was assessed by two production unit managers, one production unit manager observed that, “if [Papierz] got upset about something or . . . [had] to work the weekend, he would basically say this is bullshit and leave. . . . [W]e dealt with that a few times.” Papierz is a white man born in the United States. At the time of the reduction in force, he was 57 years old. It is undisputed that “[n]o one at Benteler ever spoke to [Papierz] concerning his age, race, or national origin in the context of his termination or employment.” Nevertheless, following his termination, Papierz sued Benteler for age discrimination, race and national origin discrimination. Papierz alleged that Benteler terminated him while retaining both younger employees and Burmese employees. .. COURT DECISION: (.pdf) (.html)
♦ Jan 19, 2022 .. D.D.C.: Wheeler v. American University .. University administrators and campus police face few harder tasks than responding to a student experiencing a mental-health crisis. The paramount challenge is assessing whether the student poses a danger to herself or other members of the school community. If imminent harm is likely, the law permits police to seize the student involuntarily for an emergency medical evaluation. But these intrusive mental-health seizures must be carried out in a manner that respects the student’s rights, including those under federal disability discrimination laws and the Fourth Amendment of the Constitution. This case illustrates the competing interests, and difficult legal issues, that can arise in these unfortunate situations. The case centers on a chain of events that took place on September 26, 2019, involving plaintiff Gianna Wheeler, an American University undergraduate. Early that afternoon, the AU police department received a complaint from a student that she had been accosted by an unfamiliar female student in a campus lab. The complainant described hostile and erratic behavior on the part of the other student, including unwanted touching, a perceived threat by the student to produce a sharp object from her bag, and a suggestion of future aggression against the complainant. .. COURT DECISION: (.pdf) (.html)
♦ Jan 19, 2022 .. 6th Cir.: Tomei v. Parkwest Med .. The plaintiff, Scott Tomei, sued Parkwest Hospital and Covenant Health for discrimination under the Affordable Care Act. But Parkwest says Tomei’s suit is dead on arrival because it’s time-barred. We disagree. Scott Tomei went to the hospital after he fell and hurt his foot and leg. He is deaf and communicates using American Sign Language (ASL). So when he arrived, he asked for an interpreter. But the hospital—Parkwest—never provided one. Medical staff simply x-rayed his knee, gave him an antibiotic and ibuprofen, and sent him home. But the medication didn’t help. Tomei’s pain got worse. So two days later he went to the emergency room, where doctors determined he had blood clots in his leg. The doctors sent him back to Parkwest in an ambulance and requested that Parkwest provide an interpreter for Tomei. Yet when he arrived, Parkwest refused. [Eventually], Tomei’s family doctor sent him to another hospital—the University of Tennessee Medical Center. There, a different story unfolded: The hospital immediately provided Tomei with in-person interpreters. The interpreters helped him through a second surgery for his blood clots (less than one week after his surgery at Parkwest). But Tomei’s condition didn’t improve. Doctors amputated nearly one third of his leg. The staff at the new hospital told him through an interpreter that the amputation could have been avoided if he had come to them earlier. .. COURT DECISION: (.pdf) (.html)
♦ Jan 18, 2022 .. SCNH: Paine v. Ride-Away .. Mr. Paine (The plaintiff) has suffered from Post-Traumatic Stress Disorder (PTSD) for many years, which substantially limits a major life activity. He was employed by Ride-Away, Inc. (the defendant) at its facility in Londonderry as an automotive detailer in May 2018. In July 2018, his physician prescribed cannabis to help treat his PTSD and the plaintiff enrolled in New Hampshire’s therapeutic cannabis program. The plaintiff submitted a written request to the defendant for an exception from its drug testing policy as a reasonable accommodation for his disability. The plaintiff explained that he was not requesting permission to use cannabis during work hours or to possess cannabis on the defendant’s premises. The plaintiff was informed that he could no longer work for the company if he used cannabis. After the plaintiff notified the defendant that he was going to treat his PTSD with cannabis, his employment was terminated in September 2018. The plaintiff sued for employment discrimination, based upon the defendant’s failure to make reasonable accommodation for his disability. .. COURT DECISION: (.pdf) (.html)
♦ Jan 18, 2022 .. 9th Cir.: Doe v. SDUSD .. Jill Doe is a 16-year-old student-athlete at a public high school in San Diego, California. She plays multiple sports and hopes to earn a college sports scholarship by excelling at those sports during the upcoming semester. In addition to being an avid athlete, Jill is devoted to her Christian beliefs. While Doe has developed natural immunity to COVID-19 from a prior infection, her religious beliefs forbid her from receiving any of the COVID-19 vaccines. But the San Diego Unified School District has implemented a COVID-19 vaccine mandate for its students. That mandate requires all students over the age of 16 to be vaccinated by January 4, 2022, or be banned from attending school in-person starting January 24. While the mandate has plenty of secular exemptions, it expressly prohibits religious exemptions. Jill appeals to this court to protect her religious convictions. She requests that we enjoin enforcement of the District’s vaccine mandate against her before January 24; otherwise, she will be forced into an online, independent study program and isolated from her teachers and classmates. If she does not succumb to the mandate and violate her religious beliefs, she will be barred from campus and from playing on any school sports teams. .. COURT DECISION: (.pdf) (.html)
♦ Jan 18, 2022 .. 4th Cir.: Coffey v. Norfolk Southern .. Michael Coffey was employed by Norfolk Southern Railway Company from 1999 to 2017. As a locomotive engineer, he was responsible for operating the train, and he had to perform such tasks as responding to hazards on the railroad tracks to prevent collision or derailment. The position required him to walk across uneven tracks and climb steps to board and deboard the train multiple times per shift. Locomotive engineers are subject to Federal Railroad Administration (FRA) regulations regarding alcohol and drug use. In 2012, a train that Coffey was operating derailed. Shortly thereafter, a drug test revealed the presence of amphetamines in Coffey’s system. Coffey was permitted to continue working, but he was subject to follow-up drug testing for five years. In April 2016, one of these drug tests showed the presence of amphetamines and codeine. Coffey explained that he had prescriptions for both medications: the amphetamines were Adderall, which he took for Attention Deficit/Hyperactivity Disorder (ADHD), and the codeine was Tylenol #3, which he took for a back condition. In response, Norfolk Southern requested that Coffey provide certain records relating to his medication usage within thirty days. However, Norfolk Southern was unsatisfied with the records it received, stating that they failed to include specifically requested information such as medication side effects or the physicians’ knowledge of other prescriptions. Norfolk Southern terminated Coffey’s employment. Coffey appealed his termination to the Public Law Board, a federal arbitration tribunal. The Board found that Norfolk Southern had cause to terminate Coffey, but that he should be reinstated on the condition that he provide the missing records within thirty days. In response, Coffey resubmitted the same records as before, and Norfolk Southern did not reinstate him. Coffey then filed a complaint with the Equal Employment Opportunity Commission (EEOC), which determined that there was reasonable cause to believe that Norfolk Southern’s demands had violated the ADA. .. COURT DECISION: (.pdf) (.html)
♦ Jan 14, 2022 .. TCA: Black v. Clarksville .. In November 2011, the city of Clarksville, Tennessee (“the City”) hired Ms. Black on an at-will basis as a meter reader in the Water and Gas Department. The written job description for Ms. Black’s position listed the following physical requirements: “reaching, standing, walking, fingering, grasping, feeling, talking, hearing, seeing, and repetitive motions.” Additionally, the job description provided that a meter reader’s work required “exerting up to 50 pounds of force occasionally, and/or up to 10 pounds of force constantly to move objects” and that the work presented exposure “to electrical currents, extreme temperatures, inadequate lighting, work space restrictions, and travel.” Ms. Black sought a reasonable accommodation from her employer when she began experiencing increased difficulties with her debilitating rheumatoid arthritis. The employer was unable to provide a reasonable accommodation and, after concluding that the employee’s disability rendered her physically unable to perform the essential functions of her job, the employer removed the Ms. Black from her position and placed her on paid sick leave. Ms. Black then resigned and sued the employer for discriminatory discharge under the Tennessee Disability Act. .. COURT DECISION: (.pdf) (.html)
♦ Jan 14, 2022 .. TWCAB: Hayes v. Elmington .. Employee was working in the course and scope of his employment with Elmington Property Management (“Employer”) in July 2018 when he fell, allegedly injuring his left knee, left arm, right hand, and head. His claim for workers’ compensation benefits was accepted as compensable, and he began treating with Dr. David Deneka, an orthopedic specialist. In September 2018, Dr. Deneka reported that Employee had reached maximum medical improvement for his work-related injuries and would retain no permanent medical impairment associated with his injuries. Thereafter, Employee complained that he had not received medical treatment for neck and back symptoms he asserted were related to his fall at work. He filed a petition seeking additional medical benefits, and, based on his assertion he had been terminated from his employment, he also sought temporary disability benefits. Following an expedited hearing, the trial court concluded Employee had offered credible testimony regarding his need for additional medical treatment for injuries related to his fall but did not present sufficient evidence of his entitlement to temporary disability benefits. The court ordered Employer to schedule an appointment with Dr. Deneka but denied Employee’s request for temporary disability benefits. Employee appealed the trial court’s denial of his request for temporary disability benefits. .. COURT DECISION: (.pdf) (.html)
♦ Jan 14, 2022 .. CSC: Olson v. Doe .. Doe and Olson met in 2002 and worked together to acquire and preserve a historic apartment building. Olson acquired the building, converted the apartments into eight condominium units, and ultimately became the owner and part-time resident of one of the units. Olson served as the president of the building’s homeowners association (HOA) board from 2013 to January 2016, and Doe resided in one of the condominium units. In December 2016, Doe filed an unlimited civil lawsuit against Olson and various other defendants, including other residents of the building, the HOA, and the property management company. Through the complaint, Doe seeks damages for a variety of claims, including sexual battery, assault, and discrimination based on perceived ethnicity, religion, and marital status. The complaint alleges multiple romantic advances over a long period of time by Olson toward Doe, which Doe rejected, followed by “a pattern of retaliatory events” by Olson, friends and associates of Olson (some of whom resided in the building after purchasing units from Olson), and the HOA. .. COURT DECISION: (.pdf) (.html)
♦ Jan 13, 2022 .. ICA: Kobliska v. ICRC .. Mr. Kobliska owns several apartment properties in Waterloo. He has been a property owner for about thirty years and specializes in high-efficiency sleeping rooms. Due in part to his focus on high-density housing, he has a no-pets policy. An exception exists for service animals, such as seeing-eye and hearing dogs. Ms. Spencer suffers from post-traumatic stress disorder (PTSD), a non- epileptic seizure disorder, anxiety, and depression. She was given Journey, a fifteen pound Pomeranian, for Christmas in 2016 by Teresa Perkins. In the spring of 2017, Ms. Spencer planned to move to Waterloo to be closer to her children. She initially planned to buy a trailer, but struggled to find one. As a result, she looked at two apartments owned by Mr. Kobliska with the intent to rent an apartment for a short time until she could purchase a trailer. She signed a lease with Kobliska on May 5, 2017. There is significant disagreement surrounding the circumstances of the lease signing. Spencer alleges that she informed Kobliska she had a service animal. Kobliska’s version of events differs. According to him, he never said anything to Spencer when she informed him about Journey. .. COURT DECISION: (.pdf) (.html)
♦ Jan 13, 2022 .. 7th Cir.: Dandridge v. McDonough .. Ms. Dandridge lost at summary judgment on her claim that her employer, the Department of Veterans Affairs, fired her because of her race, retaliated against her for complaining about discrimination, and created a hostile work environment. Thirty days after judgment, Dandridge unsuccessfully moved for relief from judgment. After Dandridge sued, the VA moved for summary judgment. It presented the facts (supported with evidence) that, it argued, showed that it treated her lawfully and fired her because of her poor job performance. Dandridge did not appeal within 60 days. Instead, 30 days after judgment, she asked the court to “allow for [her] to have [her] documentation properly prepared.” She said that she had been unable to prepare her evidence because of “economic hardship and the inability to hire counsel.” .. COURT DECISION: (.pdf) (.html)
♦ Jan 13, 2022 .. 3rd Cir.: Lewis v. Postmaster .. Lewis is a former employee of the United States Postal Service (“USPS”). In 2015, Lewis was instructed to report to training for a new position. Lewis alleged that the position conflicted with his medical restrictions, and that he was then forced to retire. On March 1, 2016, Lewis filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) based on the 2015 reassignment and his subsequent retirement. On September 7, 2020, after extended agency proceedings, Lewis received the EEOC’s dismissal and right-to-sue notice. On November 28, 2020, Lewis wrote a letter to the EEOC asking which federal district court he was required to file his complaint in. The EEOC responded on January 27, 2021. On February 3, 2021, Lewis filed a complaint in the District Court against the Postmaster General. .. COURT DECISION: (.pdf) (.html)
♦ Jan 12, 2022 .. 3rd Cir.: Hall v. Millersville .. John and Jeanette Hall (“the Halls”) sued Millersville University (“Millersville”) under Title IX after their daughter, Karlie Hall, was murdered in her dorm room by her boyfriend, Gregorio Orrostieta. Despite finding genuine issues of material fact for each element of the Halls’ Title IX claim, the District Court granted summary judgment in Millersville’s favor, holding that Millersville lacked notice it could face liability under Title IX for the actions of a non-student guest. The Halls appeal, and this Court must now consider whether Millersville had adequate notice it could be liable under Title IX for its deliberate indifference to known sexual harassment perpetrated by a non-student guest. We hold Millersville had such notice. .. COURT DECISION: (.pdf) (.html)
♦ Jan 12, 2022 .. 5th Cir.: Wantou v. Wal-Mart .. Wantou, a pharmacist and black man from Cameroon, West Africa, filed suit against his former employer, Wal-Mart, contending that Wal-Mart intentionally subjected and/or allowed him to be subjected to discrimination based on race, color, and national origin, illegal harassment, and a hostile work environment. Wantou additionally claims that Wal-Mart retaliated against him for complaining about discrimination and asserting his rights. Specifically, Wantou’s suit challenges his termination from employment, three written “coachings” (formal workplace disciplinary actions) that he received while employed by Wal-Mart, a threat of demotion, and Wal-Mart’s alleged failure to pay him for approximately 24 hours of work. Based on these assertions, Wantou has requested relief in the form of back pay, front pay, compensatory damages, punitive damages, attorney’s fees, and restitution under quantum meruit for unpaid work. .. COURT DECISION: (.pdf) (.html)
♦ Jan 12, 2022 .. SJCM: Berounsky v. Oceanside .. Oceanside Rubbish, Inc., employed Mr. Berounsky as a trash hauler. Berounsky is clinically diagnosed with Asperger’s syndrome and post-traumatic stress disorder; he informed Oceanside of his disabilities when he applied for employment. Berounsky sought a promotion to drive a trash truck and submitted medical authorizations stating that his disabilities were not a barrier to this position. Berounsky alleges Oceanside denied him this promotion because of his disabilities. On December 8, 2017, Berounsky attended a meeting with Oceanside’s owner and human resources officer. At this meeting, Oceanside informed Berounsky that the women working in the office were afraid of him because of his Asperger’s syndrome. Oceanside also told Berounsky that he could not return to work until he received permission from the owner. On or around December 26, 2017, Berounsky called the human resources officer to see when he could return to work and was informed that he needed to talk to the owner. Berounsky tried to contact the owner but never heard from him. Berounsky alleges that, to placate the women in the office, the owner never gave him permission to return to work. Berounsky filed and served his four-count complaint on January 7, 2020. It contained two counts under the Americans with Disabilities Act (Counts 1-2) and two counts under the MHRA (Counts 3-4). Count 3 alleges discrimination and discharge or constructive discharge, and Count 4 alleges failure to accommodate his disability. .. COURT DECISION: (.pdf) (.html)
♦ Jan 12, 2022 .. 6th Cir.: Smith v. Gallia .. Ms. Smith was working as a corrections officer at the Gallia County Jail when several inmates injured her during an escape. At the time of her injuries, Smith was on duty with another female corrections officer. Smith sued the jail and several local officials under 42 U.S.C. § 1983, alleging that her substantive due process rights were violated by the jail’s failure to follow its policy of having both male and female guards on duty when inmates are both male and female Debra Smith began working as a correctional officer at Gallia County Jail in 2015. Matt Champlin, the Sheriff of Gallia County, “was responsible for the training and supervision of all” corrections officers and inmates in the jail. The Chief Deputy of Gallia County, Troy Johnson, was also responsible for supervising jail operations. In 2017, the Gallia County Sherriff’s Office, led by Champlin, established a policy that “[w]hen both males and females are housed in the jail at least one male and one female staff member shall be on duty at all times.” Smith claimed that the purpose of the policy was “to protect female corrections office[r]s against the potential threat of violent male criminals” and to “protect the privacy of inmates” by ensuring that they could face “same sex correction[s] officers in times of privacy.” In an alleged violation of the policy, however, Smith was occasionally placed on duty with only another female corrections officer while there were male inmates in the prison. .. COURT DECISION: (.pdf) (.html)
♦ Jan 11, 2022 .. 6th Cir.: Stover v. Amazon .. Mr. Stover joined one of Amazon’s Kentucky-based call centers as a seasonal customer service representative. The position required Stover to troubleshoot with Amazon customers over the phone, duties Amazon tracked by requiring its employees to maintain an “aux” status. Stover’s tenure took a turn for the worse with the arrival of his new boss, Michelle Nemeth. Stover felt that he and his new supervisor had a “personal” conflict, with Nemeth maintaining an “overall malaise” toward him. Nemeth discovered that Stover had been confrontational to customers even to the point of hanging up on them, resulting in another written warning. A few weeks later, Nemeth emailed Stover asking him to “be mindful of [his] aux times,” after discovering he was repeatedly taking excess break and personal time. Stover blamed the issue on a bout of food poisoning. A few weeks after that, Nemeth warned Stover that he had missed more customer calls than anyone on her team. Stover blamed “system issues” with his computer, which Nemeth tried to resolve by replacing Stover’s machine. Not long thereafter, Nemeth formally counseled Stover about his excessive breaks. Stover attributed the issue to his Crohn’s disease, prompting Nemeth to suggest that he make an accommodations request with human resources. Stover, however, expressed no interest in doing so. Nemeth viewed Stover’s behavior as “egregious.” Fed up, Nemeth, in tandem with other Amazon managers, opted to terminate Stover’s employment. Stover eventually sued Amazon for various ADA and KCRA violations. .. COURT DECISION: (.pdf) (.html)
♦ Jan 11, 2022 .. 2d Cir.: Clark v. Coca-Cola .. Clark brought various claims against Coca-Cola under the Americans with Disabilities Act (“ADA”), alleging that Coca-Cola discriminated against Clark due to his disability, failed to provide him with reasonable accommodations, and terminated him in retaliation for requesting reasonable accommodations for his disability. Clark was employed by Coca-Cola’s predecessor, Coca-Cola Refreshments USA, Inc. (“CCR”), as a general warehouse laborer at the Albany Sales Center from March 2009 through September 2017, in a bargaining unit represented by Teamsters Union Local 294. In September 2017, Coca-Cola purchased the Albany Sales Center from CCR and agreed to honor the existing collective bargaining agreement (“CBA”) that CCR had previously negotiated with the Teamsters Union. Pursuant to the CBA, Clark’s seniority and work protections expired in January 2018, two years after he went out on medical leave, and Coca-Cola officially terminated Clark as of February 1, 2018. .. COURT DECISION: (.pdf) (.html)
♦ Jan 10, 2022 .. CCA: Kaae v. Scott Valley .. Plaintiff Kyle Kaae sued defendant Scott Valley Unified School District (the District) for numerous claims, including discrimination based on disability. Kaae challenges that ruling on appeal, contending there were triable issues of fact as to: (1) whether he could have performed other available District jobs with or without accommodation; (2) whether the District failed to make reasonable accommodations; (3) whether the District failed to engage in a timely, good faith, interactive process with Kaae to determine effective, reasonable accommodations; (4) whether the District failed to take all reasonable steps to prevent discrimination and harassment from occurring; (5) whether the District retaliated against Kaae for whistleblowing. .. COURT DECISION: (.pdf) (.html)
♦ Jan 10, 2022 .. 11th Cir.: Siff v. ADL .. Ms. Siff worked for ADL for about 21 years as an audiologist. Ms. Siff is non-Hispanic, not bilingual, and Jewish. Within Ms. Galvis’ first year as Ms. Siff’s supervisor, Ms. Galvis engaged in several acts Ms. Siff perceived as discriminatory. Ms. Siff maintains that, in February of 2018, Ms. Galvis conducted a meeting in Spanish with a potential client and referral source so that Ms. Siff could not effectively understand or participate. Ms. Galvis also spoke Spanish to Ms. Siff’s Spanish-speaking clients in front of Ms. Siff, which Ms. Siff found humiliating and discriminatory. According to Ms. Siff, Ms. Galvis suggested in March of 2018 that Ms. Siff transfer to a different center so that Ms. Galvis could replace her in Holly- wood with a Spanish-speaking audiologist, or that Ms. Siff transfer all the Hollywood center’s Spanish-speaking patients to a Spanish- speaking provider. Ms. Siff asserts that Ms. Galvis and Ms. Poinelli terminated her because she is Jewish, non-Hispanic, and/or not bilingual, and in retaliation for requesting PTO and for challenging the initial de- nial of that request. Ms. Siff filed this employment discrimination suit against ADL on June 26, 2019. .. COURT DECISION: (.pdf) (.html)
♦ Jan 7, 2022 .. WSC: Duncan v. ARS .. Danelle Duncan left her car in her parking spot in the garage on the ground floor of her apartment building. When she returned a short time later, the car was gone. She later learned that Defendants——Asset Recovery Specialists, Inc.; Wells Fargo Bank, N.A.; and Greg Strandlie——had entered the garage without her consent and repossessed the car. Duncan alleges that Defendants violated the Wisconsin Consumer Act by entering a dwelling used by the customer as a residence except at the voluntary request of a customer" during the repossession. In her complaint, Duncan also alleged that Defendants' conduct during and after the repossession was unconscionable in violation [law]. .. COURT DECISION: (.pdf) (.html)
♦ Jan 7, 2022 .. SJCM: Handlin v. Broadreach .. Handlin worked as a client manager at Broadreach from March 2018 until January 2019. In her capacity as a client manager, Handlin worked with the AC Hotel Portland Downtown (AC Hotel), a client of Broadreach’s. On November 10, 2018, the majority owner and president of Broadreach held a private party at the AC Hotel that was unrelated to the hotel’s business relationship with Broadreach. On December 3, 2018, Handlin reported to her co-worker the substance of a conversation she had recently had with her client contact at the AC Hotel. Handlin told her co-worker that her contact criticized Broadreach’s president for her conduct at the November 10th party and indicated that she, the contact, did not want to work with the president. In January 2019, the president of Broadreach also met with Handlin’s contact. The contact assured the president that she had never suggested to Handlin that the president’s party or conduct had any relevance to the business relationship between the AC Hotel and Broadreach. Later that month, Handlin was offered a choice between signing a final written warning or a release and separation agreement. Handlin’s counsel ultimately informed Broadreach that Handlin would pursue separation. On February 21, 2020, after receiving a “right-to-sue” letter from the Maine Human Rights Commission, 5 M.R.S. § 4612(6), Handlin filed a complaint [...] that she was targeted for warnings, counseling, and discipline that culminated in her termination from Broadreach. Handlin alleged that Broadreach was liable for retaliation against her for making a whistleblower complaint (Count 1), and for intentional and negligent infliction of emotional distress caused by the retaliation (Counts 2 and 3). .. COURT DECISION: (.pdf) (.html)
♦ Jan 6, 2022 .. NJSC: Carr v. Glen Ridge .. Plaintiff was a police officer with the rank of sergeant with the Glen Ridge Police Department (GRPD) since 2002. On August 29, 2016, Dr. Daniel B. Gollin, MD, performed a psychiatric and psychological evaluation of plaintiff. By letter dated September 6, 2016, Dr. Gollin notified GRPD Chief Sheila Byron-Lagattuta that plaintiff was "unfit for duty and unfit for modified light duty due to the severity of his current psychiatric symptoms." On October 24, 2016, plaintiff filed a complaint. Plaintiff alleged Glen Ridge took adverse employment actions against him in violation of the Law Against Discrimination (LAD) and the New Jersey Family Leave Act (FLA). On March 28, 2017, represented by an attorney with forty years of experience in employment matters, plaintiff filed an application for a disability pension. .. COURT DECISION: (.pdf) (.html)
♦ Jan 6, 2022 .. 9th Cir.: Adams v. Maricopa .. Kristi Adams is a former employee of the County of Maricopa (“County”). Ms. Adams appeals the district court’s summary judgment in her action against the County under the Americans with Disabilities Act (“ADA”). The County set forth two reasons for terminating Ms. Adams in its intent-to-terminate letter dated February 4, 2019: (1) Ms. Adams’s discourteous behavior on August 10, 2018, in violation of the County’s Code of Conduct, and (2) her repeated discipline for “abusive,” “hostile,” and “discourteous” behavior between May 2003 and January 2018, including a final warning and an additional misconduct incident. Ms. Adams contends that the County’s reasons are not nondiscriminatory because “conduct resulting from a disability is considered to be part of the disability, rather than a separate basis for termination.” .. COURT DECISION: (.pdf) (.html)
♦ Jan 6, 2022 .. 6th Cir.: Hassell v. Ford .. In 1980, Mr. Hassell nearly severed the middle finger on his right hand while operating a grinder on the job at Ford. He suffered permanent nerve and ligament damage but returned to work a year later. Due to his impairment, Hassell was unable to lift heavy objects or even write legibly. Hassell claims that Ford was nevertheless required to keep him on as a “full workers’ comp status” employee because a company doctor deemed him “incapacitated due to an on the job injury” and terminated him three weeks after he returned to work. At the time of his layoff, Hassell had worked for Ford for eight and a half years. Had Hassell accrued ten years with Ford, he would have been entitled to full disability retirement benefits, including a pension and medical insurance. But because he was short of that mark in actual experience, and because Ford’s allegedly improper layoff deprived him of the opportunity to accrue pension credits, Ford instead pays Hassell $119 per week in workers’ compensation benefits. .. COURT DECISION: (.pdf) (.html)
♦ Jan 5, 2022 .. DEPARTMENT OF JUSTICE OIG | initiated an investigation after receiving information alleging that a then U.S. Attorney (U.S. Attorney) may have sent an inappropriate text message to a subordinate During its investigation, the OIG found indications that the then U.S. Attorney engaged in an intimate relationship with the subordinate. The OIG investigation did not substantiate the initial allegation that the U.S. Attorney sent an inappropriate text message to the subordinate. However, the OIG investigation found that the then U.S. Attorney committed misconduct by engaging in an intimate relationship with the subordinate, in violation of an instruction given by a then Associate Deputy Attorney General at the U.S. Attorney’s orientation that such relationships between U.S. Attorneys and subordinates would not be tolerated. The U.S. Attorney resigned while the OIG investigation was ongoing. The OIG has completed its investigation and provided its report to EOUSA, the Office of the Deputy Attorney General for their information, and DOJ’s Office of Professional Responsibility for appropriate action. *** Unless otherwise noted, the OIG applies the preponderance of the evidence standard in determining whether DOJ personnel have committed misconduct.
♦ Jan 5, 2022 .. 11th Cir.: Varnedoe v. Postmaster General .. Ms. Varnedoe filed and employment retaliation claim, in which she alleged that she was given an unfavorable job assignment in retaliation for filing a discrimination complaint with the EEOC. Varnedoe worked for the United States Postal Service for more than 26 years, initially as a clerk and then, beginning in 2011, as a full-time mail carrier in Savannah, Georgia. Two days after Christmas in 2012, Varnedoe was assaulted while delivering mail. As a result of the assault, she developed Post-Traumatic Stress Dis- order and was medically restricted from working as a mail carrier. The Postal Service accommodated Varnedoe’s restrictions by assigning her to a modified clerk position in the Savannah office, but despite being cleared to return to work full time, she was only given a few hours of work a day. Varnedoe objected to the part-time work assignment, which she believed was discriminatory based on her sex (female) and race (African American). .. COURT DECISION: (.pdf) (.html)
♦ Jan 5, 2022 .. CCA: Monterroso v. Hydraulics .. Aron Monterroso sued his former employer, Hydraulics International, Inc. (Hydraulics), based on allegations that the company fired him for taking leave to care for his mother after she suffered a stroke. After the court granted Hydraulics’s motion summarily adjudicating several of Monterroso’s claims, Monterroso prevailed at trial on two causes of action: one based on the California Family Rights Act (the CFRA) and one based on Hydraulics’s alleged failure to engage in the interactive process required under the Fair Employment and Housing Act (the FEHA). The jury awarded Monterroso economic and emotional distress damages. The court awarded Monterroso attorney fees in an amount close to the lodestar amount Monterroso had calculated, but denied Monterroso’s request for twice the loadstar amount. In two consolidated appeals, each party appeals from the judgment and from the order awarding attorney fees. In the appeal from the judgment, Hydraulics challenges the verdicts against it on both claims as well as the amount of the damages award. .. COURT DECISION: (.pdf) (.html)
♦ Jan 5, 2022 .. SCNJ: Meade v. Livingston .. Plaintiff Michele Meade served as Township Manager for Livingston Township for eleven years, from 2005 until her termination in 2016 by Resolution of the Township Council. The Council cited a number of performance areas in the Resolution. An area central to this appeal was Meade’s supervision of Police Chief Craig Handschuch. One notable incident occurred on April 19, 2013, when pre-school teachers at the Livingston Community Center observed a man dressed in camouflage, carrying a rifle bag, in the parking lot. The classes went into lockdown and patrol cars were dispatched. Handschuch and Sergeant Kenneth Hanna alerted the responders that the man was an officer involved in a training exercise. Meade went to the Community Center during or in the aftermath of the incident. On May 2, Hanna signed a complaint alleging that Meade had violated N.J.S.A. 2C:33-28 by using “unreasonably loud and offensive coarse or abusive language” in addressing him. On May 31, Meade emailed a report to Handschuch concluding that he and the unit conducting the training were responsible for the incident. That same day, Hanna signed a second complaint against Meade, alleging obstruction in violation of N.J.S.A. 2C:29-1. Meade was acquitted of all charges in 2014. Meanwhile, the record reflects ongoing concerns with Handschuch’s performance. Although it is not clear from the record what specifically prompted the remark, Councilmember Michael Silverman testified that he said, at a meeting held at his home in December 2014, that “Michele [Meade] would not be having this problem if her name was Michael.” .. COURT DECISION: (.pdf) (.html)
♦ Jan 4, 2022 .. 11th Cir.: Gomez v. Doral .. Ms. Gomez is a former police officer for the City of Doral. In this action against the City and its mayor, Juan Carlos Bermudez, Gomez alleges that she experienced discrimination on the basis of sex and was also retaliated against for supporting Councilwoman Sandra Ruiz, one of Mayor Bermudez’s political adversaries. Gomez raises a number of claims: (1) sex discrimination in violation of Title VII and the Florida Civil Rights Act (FCRA), (2) creation of a hostile work environment by Mayor Bermudez, (3) infringement on Gomez’s First Amendment right to freedom of association, (4) infringement on her First Amendment right to free speech, (5) intentional infliction of emotional distress. .. DECISION: (.pdf) (.html)
♦ Jan 4, 2022 .. 7th Cir.: Simpson v. DeJoy .. Ms. Simpson was robbed at gunpoint when working at a branch of the United States Postal Service. After the robbery, USPS allowed the severely distressed Simpson to work temporarily at a window equipped with protective glass, installed protective glass at her usual station, and always scheduled a coworker to work with her. Simpson later sued USPS after she reported that these measures were insufficient primarily because the person working with her would leave the room at times—and USPS did not do more to accommodate her anxiety. Simpson’s coworkers began making fun of her. Though the record is unclear about when this ridicule occurred or who took part, Simpson attests that her coworkers laughed at her and complained about “babysitting” her. Her supervisor also picked on her and once reprimanded her for accidentally cursing in front of a customer. .. COURT DECISION: (.pdf) (.html)
♦ Jan 4, 2022 .. PSC: Com v. Freeman .. Appellant, Mr. Freeman, was charged on February 3, 1992 with Murder in the First Degree, Murder in the Second Degree, Murder in the Third Degree, Robbery, Aggravated Assault, Recklessly Endangering Another Person, Theft by Unlawful Taking, Possessing an Instrument of Crime, and Possession of Firearms. These charges arose from the February 2, 1992 shooting of George Schroeder in Chester, PA. On that day Mr. Schroeder traveled to 10th and Booth Streets expecting to buy drugs. Instead he was ambushed and robbed. Mr. Freeman admitted to shooting Mr. Schroeder and led detectives to the location of the .38 caliber handgun that he used when he robbed and shot the victim. On February 3, 1992 Mr. Schroeder died as a result of the gunshot wounds that Petitioner inflicted. On July 7, 1992 the Commonwealth filed a Notice of Aggravating Circumstances, indicating its intent to seek the imposition of a sentence of a sentence of death. .. COURT DECISION: (.pdf) (.html)
♦ Dec 29, 2021 .. 3rd Cir.: Friel v. Mnuchin (IRS) .. Friel has worked for the IRS since 2002. This case arose out of a consensual romantic relationship that Friel had with Claudia Hernandez, an IRS supervisor. When Friel began dating Hernandez, she was married to Nader Goudarzi, a supervisor employed in a different unit of the IRS. Friel alleged that, as a result of this relationship, he was the victim of sex discrimination under Title VII. Specifically, he complained of disparate treatment and a hostile work environment, and he also asserted that he was targeted for retaliation on account of his complaints of unlawful discrimination. .. COURT DECISION: (.pdf) (.html)
♦ Dec 29, 2021 .. OCA: Moody v. ODOMH .. Mr. Moody was born in Sierra Leone and immigrated to the United States in 2003, becoming a naturalized citizen in 2017. Beginning in 2013, Moody worked for ODMHAS as a Therapeutic Program Worker ("TPW") at Twin Valley Behavioral Healthcare ("Twin Valley") in Columbus, Ohio. Prior to his employment at Twin Valley, Moody worked as a State Tested Nursing Assistant ("STNA") at the Cleveland Clinic and a medical center in Louisiana, and as a TPW for the Ohio Department of Developmental Disabilities. In January 2019, Moody was notified that because of the December 2018 investigations he was being charged with failure to immediately report a violation of a work rule, policy, or procedure. A pre-disciplinary meeting resulted in a finding that there was just cause to discipline Moody. Because Moody's prior discipline had been a three-day working suspension, under ODMHAS's progressive discipline system the next step would range from a five-day working suspension to termination. Moody resigned in April 2019 before ODMHAS imposed any discipline on the failure to report charge. At the time of his resignation, Moody had accepted a position as an STNA at the Ohio State University Medical Center. .. COURT DECISION: (.pdf) (.html)
♦ Dec 29, 2021 .. 6th Cir.: Londo v. UP Health .. UP Health Systems (the Hospital) hired Ms. Londo as a Licensed Practical Nurse (LPN) in its Heart and Vascular Department in October 2016. Her duties included recording patients’ medical information, placing surgical orders, scheduling surgeries, and verifying medications and dosages. Ms. Londo was assigned to work under cardiovascular surgeon Dr. Bradford Blakeman, and her immediate supervisor was Brandi Goodwin, a Senior LPN. Unfortunately, Londo’s tenure was replete with mistakes, including failing to complete tasks in a timely fashion and failing to document patient information accurately. Among other errors, Ms. Londo confused two patients with the same name at check-in after failing to verify their dates of birth and entered their medical information in the wrong patient files. On top of that, Londo had a poor working relationship with Dr. Blakeman. She began to view him as “abrasive” and “not nice,” and as one who would bring her “nearly [to] tears” when they worked together. She also had difficulty working with Theresa Harger, another LPN. In May 2017, Londo provided a doctor’s note to the Hospital stating that she needed four days of leave “due to medical illness.” Londo suffered from anxiety, a condition she claims was exacerbated by her job. Ms. Londo alleges that her termination by UP Health Systems was due to her anxiety, in violation of both federal and state law. .. COURT DECISION: (.pdf) (.html)
♦ No New Cases To Post Today. .. Dec 23, 2021 .. Dec 24, 2021 .. Dec 27, 2021 .. Dec 28, 2021
♦ Dec 22, 2021 .. Fed. Cir.: Robinson v. PTO .. In April 2012, Ms. Robinson began work as a patent attorney in the PTO’s Office of Policy and International Affairs. After a written warning on August 27, 2013, for unacceptable performance, Ms. Robinson received notice of proposed removal. The Arbitrator issued an opinion on May 29, 2020, dismissing the grievance as inarbitrable for lack of jurisdiction and failure to prosecute due to unreasonable delay. FED. CIR: For the foregoing reasons, we vacate the Arbitrator’s decision and remand for further proceedings consistent with this opinion. .. COURT DECISION: (.pdf) (.html)
♦ Dec 22, 2021 .. FLRA: DOD v. FEA (Union) .. In this case, we remind the federal labor‑management community that Federal Service Impasses Panel (Panel) orders are not directly reviewable. The parties submitted unresolved bargaining issues for their new successor master labor agreement (successor MLA) to the Panel. The Panel issued an order imposing several provisions on the parties. Subsequently, the Agency submitted the successor MLA, containing the Panel‑imposed provisions, for Agency‑head review. The Agency head approved the successor MLA, and the Agency implemented that agreement. The Union submitted two grievances concerning the submission of the successor MLA for Agency-head review and the implementation of that agreement. The parties agreed to consolidate the grievances, and the grievances proceeded to arbitration. Arbitrator Neal Orkin determined that the Panel did not have jurisdiction over one of the imposed provisions – Article 18, Section 3(f) – and, therefore, the parties had not concluded bargaining. Consequently, the Arbitrator found that the Agency committed unfair labor practices (ULPs) by refusing to continue negotiations; submitting an unexecuted agreement for Agency‑head review; and repudiating the parties’ 2005 master labor agreement (2005 MLA) when it implemented the successor MLA. .. FLRA DECISION: (.pdf) (.html)
♦ Dec 22, 2021 .. 10th Cir.: Harper v. Arrow Electronics .. Ms. Harper, a 49-year-old African American, was hired by Arrow in January 2016 as an accounting coordinator/analyst in its Supplier Accounting Department. Her official job title is Supplier Accounting Associate. Ms. Harper, who is currently on long-term disability, is still employed by Arrow in the same job. Ms. Decker conducted Ms. Harper’s 2019 performance review, which rated her overall job performance as having achieved expectations but noted she should focus on improving her awareness of how her communications were perceived by others. Ms. Harper admitted her performance reviews from 2016 through 2019 were consistent. Ms. Harper has been on a medical leave of absence since April 27, 2019. Arrow has short-term and long-term disability plans for its employees and also provides FMLA leave, personal medical leave, and personal leaves of absence. These plans and leave programs are administered by a third-party administrator. At no time has Arrow denied Ms. Harper the leave she requested under any of its plans or programs. Ms. Harper exhausted twelve weeks of FMLA leave from April 27, 2019, to July 20, 2019; she received short-term disability benefits from April 27, 2019, to October 23, 2019; and she has received long-term disability benefits from October 24, 2019, through the present. .. COURT DECISION: (.pdf) (.html)
♦ Dec 21, 2021 .. 10th Cir.: Herrmann v. SLCC .. Herrmann began working for the City in 2002 and successfully held different positions in the Salt Lake City Justice courts for nine years. Starting in 2011, Herrmann began working as an in-court clerk, which required her to spend more time in court than her previous positions. Herrmann has PTSD, stemming from a nearly decade-long abusive marriage. Her presence in the courtroom during domestic violence cases frequently triggered her anxiety, causing severe migraines that could last for several days at a time and resulting in a significant downturn in her productivity. As Herrmann’s work performance suffered, she had several meetings with supervisors, received written warnings, and was ultimately suspended for two days in July 2014. Throughout this time, Herrmann took intermittent leave under the FMLA for health conditions, including the exacerbation of her PTSD. A few months before her suspension, in May 2014, Herrmann contacted Melissa Green, the City’s Equal Opportunity Program Manager, about a potential accommodation under the ADA. Green sent Herrmann paperwork to fill out, and two months later, Herrmann’s clinical social worker, Gary Klein, submitted paperwork to Green. Klein noted that Herrmann’s presence in court while domestic violence cases were being heard triggered her PTSD, which exacerbated her anxiety and clinical depression. ... CONTINUED .. COURT DECISION: (.pdf) (.html)
♦ Dec 21, 2021 .. CCA: Verrees v. Davis .. Verrees is a neurosurgeon who in 2008 was persuaded to come to Fresno from Cleveland to practice medicine. She was employed in Fresno by the Central California Faculty Medical Group, Inc. (Practice Group). Practice Group is an organization of faculty physicians and is affiliated with the University of California, San Francisco- Fresno Medical Education Program (UCSF Fresno). Verrees also secured privileges to practice medicine at Fresno Community Hospital and Medical Center (CRMC)1 under CRMC’s affiliation agreement with UCSF Fresno. Verrees’s work within Practice Group was overseen by, among others, Dr. Jim Davis, its chief of surgery. Beginning in late 2010, tensions and disagreements arose between Verrees and Davis regarding Verrees’s work performance. On April 22, 2011, Davis sent a memorandum to Joyce Fields-Keene (Fields-Keene), chief executive officer of Practice Group, recounting 27 incidents of concern involving Verrees that Davis characterized as “extremely alarming.” These incidents included both performance and behavior-related matters. At that time, two incidents had been referred by Davis to Practice Group’s performance improvement committee. Also, Verrees was asserting other Practice Group physicians were harassing and discriminating against her. Davis recommended to Fields-Keene and the Practice Group executive committee that they not renew Verrees’s employment contract. The executive committee agreed and elected to not renew her contract. Practice Group bought out Verrees’s contract, and her employment ended on May 16, 2011. Verrees’s academic appointment at UCSF Fresno also was terminated around this time. In February 2012, Verrees was granted privileges at Saint Agnes Medical Center (St. Agnes). A June 15, 2012 letter from St. Agnes reprimanded Verrees for a “large number of incident reports over a short period of time.” In August 2012, St. Agnes confirmed restrictions on Verrees’s privileges. In October 2012, Verrees resigned her position at St. Agnes. In addition, CRMC revoked Verrees’s medical privileges at its facilities in November 2012. .. COURT DECISION: (.pdf) (.html)
♦ Dec 20, 2021 .. D.D.C.: York v. Karbah .. This case stems from an altercation between the Plaintiff, Michael York, and Defendant Ayellor Karbah, who was at the time a police officer of the Metropolitan Police Department of the Defendant District of Columbia. York filed a three-count complaint against Karbah and the District, alleging violation of his Fourth Amendment rights through 28 U.S.C. § 1983 and assault on the part of Defendant Karbah and Intentional Infliction of Emotional Distress on the part of the District. The District has moved to dismiss the intentional infliction of emotional distress claim against it. York was driving northbound on I-395, from Virginia to the District, on December 13, 2019, when Karbah’s vehicle entered the highway from the right and attempted to merge into the lane where York was driving. Compl. Karbah was at the time employed by the District as a police officer with the Metropolitan Police Department. Karbah “aggressively attempt[ed] to force his way into Plaintiff’s lane,” while “vocalizing toward Plaintiff” and making eye contact with him, eventually clipping York’s passenger side mirror. At that point, York stopped his car and Karbah drove in front of him, parked at an angle blocking the entire lane, and exited his vehicle. Karbah exited his vehicle with a weapon drawn, shouting “you could have killed me and my wife” and brandishing his handgun at York while approaching him. York remained in his vehicle and called 911. Karbah then stated “I am a cop but I can’t investigate myself so I am calling the police,” and stood in front of York’s vehicle while making the call. Karbah made known to York that he was employed by the [Washington, DC] Metropolitan Police Department and took pictures of York’s license plate. As a result of this incident, Karbah was investigated by the Metropolitan Police Department, and was allegedly terminated or otherwise disciplined. .. COURT DECISION: (.pdf) (.html)
♦ Dec 17, 2021 .. No New Cases To Post Today. Happy Weekend. Merry Christmas
♦ Dec 16, 2021 .. No New Cases To Post Today.
♦ Dec 15, 2021 .. SCO: HO v. TSSH .. The appellant, Ms. Ho, a nurse, sued her employer, the appellee, Tulsa Spine & Specialty Hosptial, L.L.C., alleging that the Hospital fired her because she would not come to work. She refused to go to work because of concern for her health and safety. She alleged the Hospital violated the Governor's directive to discontinue elective surgeries for a short time during a COVID-19 pandemic, and it did so without providing her proper personal protective equipment. The Hospital filed a motion to dismiss, arguing that the nurse was an employee-at-will, and that she failed to state a claim for wrongful discharge under Oklahoma law. The trial court agreed, and dismissed the lawsuit. Ms. Ho, appealed. .. COURT DECISION: (.pdf) (.html)
♦ Dec 15, 2021 .. CCA: Jones v. David .. During the jury trial of Ms. Jones’s sexual harassment and related claims against her former boss Mr. David, and her employers, FilmOn.TV, Inc. and Hologram USA, Inc. (collectively defendants), David admitted to egregious workplace conduct including screening an obscene video, permitting an exotic dancer to perform in the office, and frequently walking around with his pants down and his genitals tucked between his legs. The jury returned a special verdict largely in Jones’s favor and awarded her $591,300 in economic damages, $1,500,000 in past noneconomic damages, and $1,000,000 in future noneconomic damages. After a second phase of trial at which David disregarded a court order to be present, the jury awarded Jones $8,000,000 in punitive damages against David only. Defendants moved for new trial on several grounds, including insufficient evidence of economic and punitive damages, excessive damages, inconsistent verdicts, and erroneous evidentiary rulings. .. COURT DECISION: (.pdf) (.html)
♦ Dec 15, 2021 .. WAP: Crabtree v. JCPH .. Jefferson Healthcare fired Mr. Crabtree after she became pregnant. On appeal, Crabtree argues that there is a genuine issue of material fact as to whether (1) Jefferson Healthcare’s stated reasons for her termination were a pretext for discrimination, and (2) Jefferson Healthcare was substantially motivated by Crabtree’s pregnancy when it made the decision to discharge her. COURT: Because issues of material fact exist regarding both these issues, we reverse the order granting summary judgment and remand for further proceedings. .. COURT DECISION: (.pdf) (.html)
♦ Dec 15, 2021 .. D.D.C.: Smith v. Wright .. Plaintiff Ms. Smith brings this action against Defendants Mr. Wright, the District of Columbia Public Schools (“DCPS”), and the District of Columbia (the “District”). Plaintiff alleges that while she was employed by DCPS as a Transition Specialist, she was sexually harassed by her supervisor, Defendant Wright. She also claims that Defendant Wright threatened that she would lose her job if she pursued a complaint against a student who allegedly sexually assaulted her. Plaintiff brings claims against all Defendants for “sexual harassment” and “hostile work environment,” and negligence. She also asserts a claim against DCPS for beaching an “express or implied employment contract,” by failing to protect Plaintiff from this alleged misconduct. .. COURT DECISION: (.pdf) (.html)
♦ Dec 15, 2021 .. Fed. Cir.: Brock v. MSPB (FAA) .. Mr. Brock worked for the FAA as an Airway Transportation Specialist at the Nashville System Support Center. In April 2020, the FAA proposed Mr. Brock’s removal based on two specifications of insubordination. The deciding official issued a final decision on May 14, 2020 upholding his removal, which became effective May 20, 2020. The Federal Aviation Administration (FAA) removed Mr. Brock from his position as an Air Transportation Systems Specialist based on two specifications for insubordination. Mr. Brock appealed the removal decision under the FAA’s Guaranteed Fair Treatment (GFT) appeal process—an appeal process unique to FAA personnel actions but later withdrew his appeal due to timing issues related to the selection of arbitrators. On the same day he withdrew from the GFT appeal process, Mr. Brock appealed the removal decision to the Merit Systems Protection Board. The Board dismissed Mr. Brock’s appeal for lack of jurisdiction because, in the Board’s view, 49 U.S.C. § 40122(i) prohibits Mr. Brock from appealing his removal decision in more than one forum. On appeal, Mr. Brock argues that his choice to proceed with the GFT appeal was not knowing and informed and, therefore, the Board should not have dismissed his appeal for lack of jurisdiction. For the reasons below, we agree with Mr. Brock and therefore reverse the Board’s dismissal for lack of jurisdiction and remand for the Board to consider the merits of Mr. Brock’s appeal. .. COURT DECISION: (.pdf) (.html)
♦ Dec 13, 2021 .. D.D.C.: Troster v. Barr (FBI) .. Plaintiff Ms. Troster, a former analyst at the Training Division of the Federal Bureau of Investigation (FBI) in Quantico, Virginia, brings this action against the Attorney General, in his official capacity as head of the FBI,alleging that she experienced discrimination, retaliation, and other adverse acts after she reported suffering a sexual assault by an FBI Supervisory Special Agent at an after-work event. Plaintiff claims that, upon reporting this incident to her supervisor, “the FBI created an environment where [she] was continually harassed, [and] forced to work in a hostile environment, including alongside those who tried to protect Dick and the FBI in their wrongdoings.” .. COURT DECISION: (.pdf) (.html)
♦ Dec 13, 2021 .. 11th Cir.: Smith v. Pelham .. Ms. Smith, a former employee for the City of Pelham, was fired after a forensic examination of her workplace computer revealed nude and pornographic photographs and that she had used her workplace computer to conduct work for her secondary job. Smith alleged, in relevant part, that the search of her computer violated the Fourth Amendment and Alabama privacy law. She also claimed that the search of her computer was unlawful retaliation because Chief of Police Larry Palmer ordered the search soon after he was informed of Smith’s internal discrimination complaint against him. .. COURT DECISION: (.pdf) (.html)
♦ Dec 13, 2021 .. CCA: Guerrero v. Whole Foods .. Plaintiff’s Employment as a Whole Foods Meat Cutter Plaintiff began working for Whole Foods in 1988 and, beginning in 2006, his job was that of a meat cutter. In 2018, Plaintiff was working Whole Foods’ Newport Beach store after transferring there in 2016 from Whole Foods’ West Los Angeles location. Plaintiff was 57 years old. While working as a meat cutter, Plaintiff was repeatedly trained on Whole Foods’ meat and food handling policies. Plaintiff accordingly understood that commingling of different species of meat and poultry products during cutting and grinding was prohibited by Whole Foods for a number of reasons, including public health concerns. To prevent meat commingling, Whole Foods’ “Grinding Policy/Guidelines,” a document Plaintiff reviewed as recently as 2017 when he underwent retraining, specified that meat grinders must be cleaned and sanitized “between EVERY grind . Mr. Guerrero (Plaintiff) was fired by his employer, Whole Foods Market (Whole Foods) for failing to abide by food safety rules. Plaintiff then sued Whole Foods and his former supervisor, Arthur Tolentino (Tolentino) for age and national origin discrimination, retaliation, harassment, and other claims. We consider whether the trial court correctly granted summary judgment for Whole Foods, and the answer to that question largely turns on whether Plaintiff put forward substantial evidence that Whole Foods’ reason for firing him was pretextual and whether those responsible for the termination decision can be said to have acted with unlawful motivation. .. COURT DECISION: (.pdf) (.html)
♦ Dec 10, 2021 .. No New Cases To Post Today. ... Cases Always Low During Hanukkah Week. ... Next Week.
♦ Dec 9, 2021 .. No New Cases To Post Today.
♦ Dec 7, 2021 .. 3rd Cir.: McCarthy v. IAM .. Michael McCarthy, Robert Eddis, and other members of District Lodge 19 initiated this action [...] against the International Association of Machinists and Aerospace Workers (“IAM”) and Michael Perry, the President of District Lodge 19. McCarthy contends that he was removed from his IAM position for improper reasons, but Defendants counter that he was removed for incompetent job performance. .. COURT DECISION: (.pdf) (.html)
♦ Dec 7, 2021 .. 8th Cir.: Ackerman v. Iowa .. Ms. Ackerman brought retaliation, defamation, and intentional infliction of emotional distress claims against her former employer, Iowa Workforce Development, as well as against certain former supervisors and coworkers. Ackerman graduated from law school in 1995 and was employed as an Administrative Law Judge (ALJ) by the State of Iowa in Workforce Development’s Unemployment Insurance Appeals Bureau (Bureau) from 2000 until her termination in 2015. Ackerman sought in November 2012 to add her twenty-seven-year-old daughter Catherine Holcombe to her employer-provided health insurance plan for calendar year 2013. At that time and all relevant times thereafter, Iowa state employees could secure employer-provided health insurance for an employee’s child who was over the age of twenty-six only if the child was both unmarried and a full-time student. Catherine was separated but not divorced from her husband and had recently moved from Hawaii to Minnesota to attend school. Because of financial constraints, Catherine’s divorce was not yet finalized. Ackerman emailed Workforce Development Human Resources Associate Monica Reynolds, with whom she had worked for several years, to inquire whether Catherine was eligible for enrollment as an unmarried, full-time student dependent. Ackerman wrote, “I’ve looked at that web site for the dependent tax consequences and it seems that I can only get coverage for Cathy if she is unmarried???” Reynolds responded that she thought Catherine was unmarried, to which Ackerman replied, “No, her husband is still in Hawaii but will probably be moving back here next year.” Reynolds responded, “Who has to know she is married??” Ackerman thereafter enrolled Catherine in the health plan, through which Catherine received benefits during 2013. Ackerman re-enrolled Catherine in the 2014 health plan during November 2013. Ackerman completed a “Full-Time Student Verification Form,” on which she checked a box indicating that Catherine was not married.2 An accompanying “Certification of Full-Time Student Status” form bearing Ackerman’s signature contained the following certifying statement: .. COURT DECISION: (.pdf) (.html)
♦ Dec 6, 2021 .. CCA: Olivero v. SFDPH .. Plaintiff Ms. Olivero appeals from the grant of summary judgment on her complaint against the San Francisco Department of Public Health (Department) alleging constructive wrongful termination in violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.); retaliation in violation of FEHA; retaliation in violation of Labor Code section 1102.5; and failure to prevent harassment, discrimination or retaliation in violation of FEHA. Plaintiff began working for the Department in May 2016, as a practice manager at Castro–Mission Health Center (CMHC). As with almost all new employees of the City and County of San Francisco, plaintiff was given a probationary period set to last for approximately one year. As practice manager, plaintiff was the management team lead for patient and staff experience and for operational quality improvement activities. .. COURT DECISION: (.pdf) (.html)
♦ Dec 6, 2021 .. 4th Cir.: Sempowich v. Tactile SD .. This appeal arises from the district court’s grant of summary judgment to Tactile Systems Technology, Inc. on former employee Tracy Sempowich’s discrimination, retaliation, and Equal Pay Act claims. Because the court applied an incorrect legal standard to the Equal Pay Act claim and erred in holding that there are no genuine issues of material fact precluding summary judgment on the other claims, we must vacate its judgment and remand for further proceedings consistent with this opinion. Tactile, a medical device company, sells compression devices to treat chronic swelling and wounds. In 2007, Tactile hired Tracy Sempowich — a woman — as a field sales employee, a position known at the company as a “product specialist.” Sempowich briefly left full-time employment in 2009 but continued to work with Tactile as an independent contractor during that time. In 2010, Tactile rehired her as a full-time product specialist and subsequently promoted her to a senior product specialist. ... CONTINUED. .. COURT DECISION: (.pdf) (.html)
♦ Dec 3, 2021 .. 3rd Cir.: Wutherich v. Rice Energy .. Kevin Wutherich sued his former employer, Rice Energy, Inc., for retaliation and discrimination. Wutherich’s amended complaint contains five counts: (1) retaliation in violation of the Sarbanes-Oxley Act of 2002 (SOX); (2) retaliation in violation of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010; (3) age discrimination in violation of the Age Discrimination in Employment Act of 1967; (4) national origin discrimination in violation of Title VII of the Civil Rights Act of 1964; and (5) age and nationality discrimination in violation of the Pennsylvania Human Relations Act. .. COURT DECISION: (.pdf) (.html)
♦ Dec 3, 2021 .. OCA: Guinn v. CMHA .. Guinn is a sergeant in CMHA’s police department. In 2019, Guinn filed a complaint in which he alleged that CMHA discriminated against Guinn by disciplining him on several occasions from 2009 through 2019 when similarly situated nonminority officers were not disciplined. That action was voluntarily dismissed under Civ.R. 41(A)(1)(a), and the case was refiled in 2020. In the refiled complaint, Guinn claims that the disciplinary actions over the decade constituted a hostile work environment, but Guinn did not include any allegations describing an adverse employment action other than the inability to obtain secondary employment in 2015 based on one of the disciplinary proceedings. The complaint was limited to describing the disciplinary measures that were implemented according to the collective bargaining agreement between CMHA and its officers. .. COURT DECISION: (.pdf) (.html)
♦ Dec 3, 2021 .. 10th Cir.: Benaissa v. Salina .. Dr. Benaissa is an Arab Muslim male and a board-certified orthopedic surgeon. He performed physician services at SRHC from February 1, 2018 through January 31, 2019. SRHC obtained his services by contracting with one of its third-party vendors, LocumTenens.com (LT). LT assigned Dr. Benaissa to SRHC for orthopedic coverage while SRHC searched for a permanent surgeon. In December 2018, SRHC gave LT thirty days’ written notice (as required by its contract with LT) that it no longer wished to schedule Dr. Benaissa’s services. After Dr. Benaissa’s relationship with SRHC ended, he filed a charge against SRHC with the Equal Employment Opportunity Commission (EEOC) alleging discrimination and retaliation. The EEOC dismissed the charge for lack of jurisdiction because there was “no employee/employer relationship.” Aplt. Dr. Benaissa then filed a civil action against SRHC seeking actual and punitive damages. He asserted Title VII claims of discrimination based on race, religion, and national origin, and a claim of retaliation under Kansas law. In his retaliation claim, Dr. Benaissa alleged that members of SRHC’s medical staff used a peer-review process to retaliate against him for referring patients to surgeons outside of SRHC and for expressing his concerns that SRHC was violating standards of care. .. COURT DECISION: (.pdf) (.html)
♦ Dec 3, 2021 .. D.D.C.: Brackett v. Kelly .. Although the COVID-19 pandemic brought remote work to the fore, this employment suit is proof that workplace disputes about telecommuting arose long before the pandemic’s onset. Plaintiff Ms. Brackett has worked for decades at the Federal Emergency Management Agency, and she has been permitted to work from home since 2010 because of her Lyme disease and associated medical conditions. The primary event giving rise to this lawsuit was Brackett’s six-day family trip to Tennessee in June 2014; although she claims that she worked while on the road, her timecard inadvertently indicated that she was at home. Approximately a year after the trip — and shortly after Plaintiff filed an EEO complaint and formally requested a reasonable accommodation for her disability — her supervisor reported the timecard incident as fraud, which led to an internal investigation and the suspension of Brackett’s security clearance, job, and pay. After filing multiple administrative complaints, Plaintiff brought this Rehabilitation Act lawsuit. .. COURT DECISION: (.pdf) (.html)
♦ Dec 2, 2021 .. 10th Cir.: Reznik v. inContact .. From January 2018 to May 2019, Ms. Reznik worked as a Director of Project Management for inContact, a Utah-based corporation offering cloud-based services to companies using call centers. In April 2019, Ms. Reznik received internal complaints about racial slurs in the workplace from two native Filipino employees, Jamar Go and Kristine Dalere, who worked in the company’s Manila, Philippines office. They claimed that an inContact manager, Scott Mendenhall, had repeatedly subjected them and other native Filipino employees to racial slurs, calling them “monkeys” and “not human.” Mr. Mendenhall worked in the same Salt Lake County facility as Ms. Reznik. Mr. Go and Ms. Dalere each told Ms. Reznik that Mr. Mendenhall’s harassment had become more vitriolic and more frequent. They explained that this harassment had become so extreme and pervasive that it was interfering with their performance at work as well as their physical and emotional well-being. They asked permission to be excused from meetings Mr. Mendenhall led that were not part of their duties. Ms. Reznik first relayed these complaints to her immediate supervisor, Vice President of Management Information Systems and Trust, Gwen Shivley, who “expressed . . . shock and dismay . . . while stating that no one should be treated in that manner.” A few days later, Ms. Reznik shared these complaints with Human Resources (HR) business partner John Bishoff and HR employee Chelsea Bohmer, who were similarly disturbed. Mr. Bishoff assured Ms. Reznik that no inContact employee would be subjected to workplace reprisal. A few weeks later, Ms. Shivley and Mr. Bishoff met with Ms. Reznik and terminated her employment, respectively commenting only that Ms. Reznik was “not a good culture fit” and “not a good fit.” Following Ms. Reznik’s termination, she filed her complaint in federal district court. .. COURT DECISION: (.pdf) (.html)
♦ Dec 1, 2021 .. D.D.C.: Holodnak v. SEIU .. Plaintiff Ms. Holodnak brings this action against her former employer, Defendant Service Employees International Union (“SEIU”), for alleged violations of the Federal Family and Medical Leave Act (“FMLA”) and Title VII of the Civil Rights Act of 1964. Holodnak started working at SEIU on April 9, 2018, as a Human Resources Manager. Until July 2019, Leslie Edmond was Holodnak’s direct supervisor. Edmond allegedly harassed Holodnak because Holodnak was a “single mother” with “small children. This included commenting that having children would interfere with Holodnak’s job responsibilities, criticizing Holodnak for taking leave to tend to her children when they were sick, and not allowing Holodnak to telework while commenting that telework is not for childcare. Colleagues without children were not subjected to such comments. In June 2019, Holodnak requested, and was granted, leave to care for her ailing father. The day before Holodnak returned to work, Marc Goumbri became her new supervisor. “Upon her return, Mr. Goumbri told Plaintiff that he would deny any and all of Plaintiff’s future leave requests if she did not ask and get a response from him first, even if the leave was designated under FMLA.” This “threat discouraged Plaintiff from using her future leave.” .. COURT DECISION: (.pdf) (.html)
♦ Nov 30, 2021 .. No New Cases To Post Today.
♦ Nov 29, 2021 .. 3rd Cir.: Fowler v. AT&T .. Kathleen Fowler, a thirty-year veteran of AT&T and an epileptic breast cancer survivor, sued her former employer for age and disability discrimination. She claims that AT&T discriminated against her twice. First, it placed her on “surplus status” in January 2016, effectively giving her 60 days to find a new job or be terminated. Second, after she found a new job within AT&T, she was again placed on surplus status in October of that same year and ultimately terminated. In addition, she argues that the company failed to accommodate her disabilities in her new position. .. COURT DECISION: (.pdf) (.html)
♦ Nov 29, 2021 .. 5th Cir.: Scott v. U.S. Bank .. Scott is an African American male. U.S. Bank hired Scott in March 2016 as a Default Management Support Specialist in its underwriting department. Between March 2016 and January 2018, Scott received exclusively positive reviews as well as one merit increase. Scott was also encouraged to apply for management positions by his Human Resources Business Partner, Lakisha Carman. In January 2018, Scott overheard a manager in his department, Craig Seward, a white male, tell Scott’s direct supervisor, Damarris Triggs, an African American male, that he “intended to terminate four (4) African American employees.” Scott then warned those employees. One of those employees complained to the human resources department, which led to Carman’s requesting that Scott provide a statement about the incident. Scott agreed, but he expressed concern that U.S. Bank may retaliate against him because of the statement. Carman assured Scott that he would not face retaliation. Despite such assurance, Scott claims that U.S. Bank then started to retaliate. .. COURT DECISION: (.pdf) (.html)
♦ Nov 24, 2021 .. ICA: Rheeder v. Marion .. Valerie Rheeder worked as a part-time custodian for the Marion Police Department starting in August 2018. About a year later, she filed this lawsuit alleging Deputy Police Chief Douglas Slagle sexually harassed her. She claimed that when she reported his conduct, Chief of Police Joseph McHale carried out an inadequate investigation before formally concluding Slagle had not sexually harassed her. McHale informed city administrators of Rheeder’s complaint and that he had taken care of it. Rheeder’s petition also asserted the city retaliated against her for making the sexual harassment complaint. McHale gave her a written warning for her communications with Slagle. She also contends that Administrative Manager Shellene Gray confronted and threatened her about the sexual harassment complaint. A month or so after her complaint, Rheeder heard that the city had received multiple allegations of sexual harassment against Slagle before he sexually harassed her as well as a new complaint from another individual. She also learned the department planned a second investigation to be conducted by someone outside the department. The city hired attorney Frances Haas to investigate Rheeder’s complaint and possible disparate treatment within the police department. Attorney Haas conducted her investigation and submitted to the city a confidential report (Haas report). The department placed Rheeder on leave during the investigation. When she returned to her position, Gray was still her manager. Rheeder complained she was not comfortable working with Gray, and the city conducted another investigation of Gray’s conduct. The city then allowed Gray to return to her position. Rheeder quit her job shortly afterward and filed this suit. .. COURT DECISION: (.pdf) (.html)
♦ Nov 23, 2021 .. 5th Cir.: New York Party Shuttle v. NLRB .. After New York Party Shuttle, LLC (“NYPS”) fired Fred Pflantzer for attempting to unionize, the NLRB held an unfair labor practice proceeding. The Board concluded that NYPS committed an unfair labor practice and ordered NYPS to reinstate Pflantzer and make him whole. NYPS appealed the Board’s liability finding but failed to file an opening brief; thus, we entered a default judgment against NYPS. The Board then held a compliance proceeding to determine damages. At that proceeding, an ALJ awarded some $91,000 in backpay to Pflantzer. Petitioners now appeal the Board’s backpay award, arguing multiple grounds for reversal. We affirm in part and reverse and remand in part. .. COURT DECISION: (.pdf) (.html)
♦ Nov 23, 2021 .. CAC: Hartford v. CHRO .. The plaintiff employer appealed to the trial court from the decision of the defendant Commission on Human Rights and Opportunities sustaining a claim of ancestry discrimination brought by the plaintiff’s employee, the defendant P, who is Vietnamese. P filed an affidavit of illegal discrimiatory practice with the commission following the termination of his employment as a probationary police officer. P claimed that, after two negative interactions with a sergeant, K, during which K questioned P’s ancestry and language skills and P stated that he would file a grievance against K, other sergeants began complaining about his performance, motivating the plaintiff to terminate his employment. The trial court rendered judgment affirming the decision of the commission, sustaining a claim of ancestry discrimination brought by the plaintiff’s employee, P. The plaintiff appealed to this court. .. COURT DECISION: (.pdf) (.html)
♦ Nov 23, 2021 .. 6th Cir.: Middleton v. United Church of Christ .. Ms. Middleton is an ordained minister of the United Church of Christ. In 2010, she was hired by the United Church of Christ’s governing Board and Local Church Ministries to organize and plan national youth events. She was fired six years later. Middleton alleges the following as examples of a racist hostile work environment: ••• In 2010, a UCC “constituent” told Middleton, “I thought you only got the job because you are young, black and from Trinity [United Church of Christ in Chicago].” Middleton reported this comment to her supervisor, but no action was taken. ••• In 2013, Middleton expressed concern to her church human-resources director that the only candidates being considered to replace Middleton’s supervisor were of “one cultural and gender and demographic group.” Middleton’s concerns were ignored and Ivy Beckwith, a white woman, was hired as her new supervisor. ••• In February 2014, Beckwith told Middleton that she “understood ‘exactly what [Middleton’s] problem is,’” which was that Middleton is “a sassy, young, African American woman.” ••• In March 2014, Middleton complained to human resources that she had been subject to a hostile work environment by a UCC managerial employee because that ••• In June 2016,2 the UCC fired Middleton, months before her temporary position was set to end in August. .. COURT DECISION: (.pdf) (.html)
♦ Nov 22, 2021 .. No New Cases To Post Today.
♦ Nov 19, 2021 .. 2d Cir.: Fleischer v. Barnard .. Appellant Ms. Fleischer, proceeding pro se, appeals from the district court’s dismissal of her lawsuit against Barnard College and Local 2110 of the United Automobile, Aerospace, and Agricultural Implement Workers (“Local 2110” or “union”). She principally seeks vacatur of an arbitration award that upheld Barnard’s decision not to reappoint her as an adjunct professor for the following academic year. She alleges that Barnard violated a collective bargaining agreement (“CBA”) by firing her and that the union violated its duty of fair representation by failing to adequately represent her during the arbitration proceeding. .. COURT DECISION: (.pdf) (.html)
♦ Nov 19, 2021 .. CCA: Wilkin v. CHMP .. The Community Hospital of the Monterey Peninsula (the Hospital) terminated the employment of registered nurse Ms. Wilkin (Wilkin) after discovering she had violated the Hospital’s policies governing the handling and documentation of patient medications. Ms. Wilkin sued the Hospital, alleging her discharge constituted disability discrimination, retaliation, and resulted in the unlawful denial of medical leave and retaliation, and constituted a wrongful termination in violation of public policy. .. COURT DECISION: (.pdf) (.html)
♦ Nov 19, 2021 .. 9th Cir.: Fried v. Wynn .. Mr. Fried worked as a manicurist at a salon in the Wynn Hotel in Las Vegas, Nevada, from April 2005 to July 2017. His performance reviews show that he met or exceeded expectations, and Mr. Fried received eight certificates of merit based on positive comments from guests, extraordinary performance, or otherwise “going above and beyond.” Mr. Fried alleges that he complained to management about female manicurists receiving most of the appointments, and that other male manicurists complained about this as well. Though appointments were generally allocated to manicurists based on a system Fried designed to balance the assignments, Fried testified that his female coworkers received more appointments, due in part to customers specifically requesting female manicurists. .. COURT DECISION: (.pdf) (.html)
♦ Nov 18, 2021 .. 11th Cir.: Thompson v. DeKalb .. Thompson was a senior assistant county attorney for the DeKalb County law department. In March 2013, Overtis Brantley became the new county attorney. Upon assuming her role, Brantley held a meeting with the entire law department. At the meeting, Brantley mentioned that she had spoken with the county’s chief executive officer, who said that he was “tired of looking at all these older people” and “wanted the [c]ounty workforce to look younger.” She said that the chief executive asked her, “Why can’t we have younger people?” Brantley brought up the chief executive’s comments “in the context of the fact that she . . . wanted to hire baby lawyers in the law department.” She said that it was her “goal to hire baby lawyers” and that she was “filling the nursery with baby lawyers.” Brantley later used the phrase “baby lawyers” at “almost every meeting.” Whenever Brantley was hiring a new person to the law department, she would say: “I’ve got another baby lawyer. I’m filling the nursery.” Mark Thompson, was fired. Thompson sued the county, claiming that he was fired because of his age. .. COURT DECISION: (.pdf) (.html)
♦ Nov 18, 2021 .. 4th Cir.: DiCocco v. Garland (Justice) .. Dr. Jane DiCocco accepted a job as a psychiatrist with the Bureau of Prisons (“BOP”) at the Federal Correctional Complex in Petersburg, Virginia. At that time, Dr. DiCocco was sixty-seven years old. As a condition of her hiring, Dr. DiCocco—like all new BOP employees regardless of age, position, or gender—had to take and pass the Physical Abilities Test. Employees taking the test must drag a seventy-five-pound dummy at least 694 feet for three minutes, climb a ladder to retrieve an object within seven seconds, complete an obstacle course in fifty-eight seconds, run a quarter mile and handcuff someone within two minutes and thirty-five seconds, and climb three flights of stairs in forty-five seconds while wearing a twenty-pound weight belt. Employees receive scores for the five components, which are aggregated and measured against a passing composite score. The first time Dr. DiCocco took the test, she failed. Under BOP policy, she could retake the test within twenty-four hours, but she declined, “fearing that in her exhausted physical condition, she would be unable [to] complete it in a satisfactory time during the second attempt.” She was then “informed that unless she resigned, her employment with BOP would be terminated for failure to pass the [test] within the required times.” She chose to resign. After exhausting her administrative remedies, Dr. DiCocco filed a complaint in federal district court against the Attorney General, alleging disparate-impact theories of sex discrimination and age discrimination. .. COURT DECISION: (.pdf) (.html)
♦ Nov 18, 2021 .. WCA: Johnson v. Silver Shores .. Johnson began working for Silver Shores on January 1, 2016. The terms of Johnson’s employment required him to live onsite, and Silver Shores provided a mobile home and paid utilities. Because the manager’s unit needed repairs, Johnson lived off premises until March 2016. In addition to his role as manager, Johnson began performing work previously done by others, including yard service, maintenance work, and administrative work. According to Johnson, Silver Shores agreed to pay him to perform the additional services. Johnson claims Silver Shores then withheld a substantial portion of his wages for these additional services by failing to pay as promised. According to Fritschi, Silver Shores terminated Johnson because he “used a loud and inappropriate tone with me over the phone about some minor issue at the Park.” Fritschi also became aware of Johnson’s “episodes of profanity and improper treatment of another employee.” .. COURT DECISION: (.pdf) (.html)
♦ Nov 17, 2021 .. 11th Cir.: Dixon v. DTA .. Vanessa Dixon, an African American female, appeals the district court’s order granting summary judgment in favor of DTA Security Services (DTA), She argues that genuine issues of fact remained as to her claims for discrimination, retaliation, and a hostile work environment in violation of [the Civil Rights Act of 1964 (Title VII). Dixon alleges that Williams treated her improperly in the following ways. On multiple occasions, Williams told Dixon that if she did not correctly handle company paperwork, Williams would “hang” and then “drag” Dixon to the main office. Dixon specifically remembers that Williams made this comment on Martin Luther King Jr. Day in 2015. On another occasion, Williams threw paperwork across Dixon’s car and made Dixon pick it all up in front of DTA clients. Williams also apparently told a client she did not like African Americans and that she would sometimes follow Dixon when she was on duty to watch her perform her job. Williams also had Dixon complete tasks for white employees, such as gassing up their patrol cars and picking up newspapers, boxes, and the mail for them. Dixon further alleges that Williams discriminated against and harassed Tina Tait, another African American DTA employee. .. COURT DECISION: (.pdf) (.html)
♦ Nov 17, 2021 .. D.D.C. : Gatling v. Jubilee Housing .. Plaintiff has a medical condition that requires her to travel for treatment weekly. Plaintiff alleges that on at least one occasion in the last 18 months, with the most recent occasion being in November 2020, she has fallen out of her wheelchair and down the ramp when trying to navigate the entrance of the Mozart. Her fall in November 2020 required emergency medical attention and caused both physical and emotional injuries. Id. After the November 2020 fall, Plaintiff again requested that the ramp and wheelchair lift be repaired. Defendants have allegedly ignored or dismissed Plaintiff’s requests. Plaintiff asks that this Court (1) declare that Defendants’ actions violate the Rehabilitation Act and the DCHRA; (2) enjoin Defendants from failing to reasonably accommodate Plaintiff’s disability; (3) award Plaintiff economic and compensatory damages; and (4) award Plaintiff punitive damages. .. COURT DECISION: (.pdf) (.html)
♦ Nov 17, 2021 .. SCC: Clements v. Aramark .. The plaintiff appealed from the decision of the Compensation Review Board, which affirmed the decision of the Workers’ Compensation Commissioner dismissing the plaintiff’s claim for certain disability benefits. While working for the defendant employer, the plaintiff, who had a history of cardiac disease, among other conditions, and who was standing on a level surface, became lightheaded, passed out, fell backward, and hit her head on the ground. The plaintiff was then taken to a hospital, where she suffered cardiac arrest and was treated for her cardiac episode and head trauma. In denying the plaintiff’s claim for benefits, the commissioner determined that the plaintiff’s head injury did not arise out of her employment but, rather, was caused by her cardiac condition, and, therefore, was not a compensable injury. The defendant employer and the defendant insurer appealed from the Appellate Court’s judgment to this court. .. COURT DECISION: (.pdf) (.html)
♦ Nov 16, 2021 .. CAW: Washington v. Kasparova .. Anna Kasparova appeals her conviction for first degree murder after a jury found that she and her codefendant, Abel Linares-Montejo,1 fatally shot Edixon Velasquez while attempting to rob him. On September 17, 2017, Ms.Velasquez reached out to Kasparova via Instagram and mentioned that he had heard she had been fired from her barista job. Kasparova told him that she had quit and then asked if she could see him. Kasparova continued to make flirtatious advances, asking Velasquez if she could come over to his house, but he declined because he had to work early the following morning. The next day, Velasquez and Kasparova made plans to see each other on September 19. While Kasparova was talking with Velazquez, she was also privately messaging the Facebook account of her friend, Habibti Maryooma. Kasparova asked about Velasquez 2 and then told Maryooma that she wanted to “catch him cause he be asking about me st [sic] work.” Kasparova said she wanted to “get him.” Maryooma responded it would be “so easy.” Kasparova then said “I told him I wanna [f---] him (which I don't) obviously lol and have him boped lol.” Maryooma and Kasparova agreed that Velasquez was an “easy target.” ... CONTINUED .. COURT DECISION: (.pdf) (.html)
♦ Nov 15, 2021 .. No New Cases To Post Today.
♦ Nov 12, 2021 .. No New Cases To Post Today. Happy Weekend.
♦ Nov 10, 2021 .. DOJ OIG INVESTIGATIONS : Findings of Misconduct by a then FBI Supervisory Special Agent for Time and Attendance Fraud. A had engaged in time and attendance fraud, in violation of federal law and FBI policy. The OIG found that the SSA had not worked for over 50 percent of the hours the SSA had certified in the SSA’s time and attendance records as having worked during a three-year period. ( .pdf)
♦ Nov 10, 2021 .. 8th Cir.: Norris v. Kohler .. As a supervisor at Kohler, Norris had substantial authority. According to his co-workers, he used his position to push insurance. One said that Norris told her that she needed to “sign up so that she could sit in an office just like him.” After receiving complaints about Norris’s conduct, Kohler suspended and then fired him. Several months later, Norris sued Kohler for, among other things, race discrimination. .. COURT DECISION: (.pdf) (.html)
♦ Nov 10, 2021 .. 11th Cir.: Blake v. Montgomery .. In 2012, the City of Montgomery hired Mr. Blake as a Montgomery firefighter. Two years later, Mr. Blake completed the training and certification required to serve the Montgomery Fire Department (“MFD”) as both a firefighter and paramedic. In 2015, the MFD transferred Mr. Blake to a paramedic assignment. Firefighters assigned to a paramedic position, like Mr. Blake, attend more calls than those assigned to fire suppression positions. In a typical month, for example, firefighters in fire suppression positions make between 14 and 38 runs, while firefighters on para- medic assignment make between 350 to 400 runs. In 2016, Mr. Blake requested a transfer from his paramedic assignment to a fire suppression assignment to “expand [his] experience and knowledge in fire line operations.” The transfer was approved but never carried out HERE : Mr. Blake, appeals the district court’s grant of summary judgment in favor of the City on his claims for interference and retaliation under the Family and Medical Leave Act. .. COURT DECISION: (.pdf) (.html)
♦ Nov 10, 2021 .. GCA: Doe v. Roe .. Mr. Doe filed a complaint against Ms. Roe, alleging that she had transmitted genital herpes to him. Doe set forth negligence and battery claims and also sought attorney fees and punitive damages. Ms. Roe filed an answer and counterclaims, alleging that Mr. Doe had falsely accused her of having genital herpes. Ms. Roe set forth counterclaims for libel, slander, false light invasion of privacy, intentional infliction of emotional distress, and malicious prosecution and abuse of process. She also sought attorney fees and punitive damages. Mr. Doe moved for summary judgment on Ms. Roe’s counterclaims, filing with his motion the affidavit of a doctor who stated that he had reviewed documents provided by Doe and determined from those documents that Roe could not deny that she has genital herpes, although the affidavit did not identify the documents reviewed and none were attached to the affidavit. Ms. Roe filed a motion to exclude the doctor’s affidavit and also filed an opposing motion for summary judgment as to Mr. Doe’s claims and her counterclaims. .. COURT DECISION: (.pdf) (.html)
♦ Nov 8, 2021 .. 5th Cir.: Houston v. TxDA .. Ms. Houston, a former state employee at the Texas Department of Agriculture (“TDA”), alleges that she was fired in retaliation for exercising her rights under the Family and Medical Leave Act (“FMLA”) and, similarly, discriminated against under the Rehabilitation Act. Houston suffers from lupus and other illnesses. .. COURT DECISION: (.pdf) (.html)
♦ Nov 8, 2021 .. 7th Cir.: Davis v. Papa John's .. Davis was fired from his job as a driver at a Papa John’s pizza restaurant. The first dispute began when Davis accused Wheeler and other workers of “eyeballing” him. When they denied it, Davis yelled and cursed at them. At one point Wheeler put her hand on Davis’s shoulder. She says she meant it as a calming gesture, but Davis characterizes it as a sexual advance; he pushed her hand away. The argument continued until Wheeler telephoned an offsite manager, who told Davis to go home for the day. Davis soon complained to Papa John’s, accusing Wheeler of sexual harassment during the first dispute. Company investigators concluded that Wheeler’s shoulder touch did not constitute harassment but did warrant coaching on nonphysical de-escalation techniques. Meanwhile, Papa John’s suspended Davis while it investigated the matter and eventually fired him, citing his “inappropriate” behavior toward coworkers in the first dispute. Davis filed a charge with the EEOC. .. COURT DECISION: (.pdf) (.html)
♦ Nov 8, 2021 .. 8th Cir.: Burkett v. Agriculture .. Ms. Burkett was employed by the United States Department of Agriculture (USDA). After her termination, Burkett filed an EEO complaint alleging race and age discrimination and retaliation. After receiving a final agency decision finding of no discrimination, she appealed to the Merit Systems Protection Board (MSPB) on the race discrimination and retaliation claims. An administrative judge thereafter issued an initial decision affirming the USDA’s action and finding that Burkett failed to establish that her termination was based on race or retaliation for her protected EEO activity. Burkett subsequently filed a complaint in district court seeking review of the MSPB’s ruling. A jury found in favor of the United States Department of Agriculture (USDA) on Beverly Burkett’s claims of race discrimination and retaliation in her wrongful termination action brought pursuant to Title VII of the Civil Rights Act of 1964. On appeal, Burkett argues that the district court1 erred in granting the USDA’s motion in limine to exclude certain evidence at trial. .. COURT DECISION: (.pdf) (.html)
♦ Nov 5, 2021 .. No New Cases To Post Today. Happy Weekend.
♦ Nov 4, 2021 .. 11th Cir.: Royster v. Robinson .. In September 2015, Plaintiff began working as an administrative employee in the Office of the Liaison to the Board of Trustees at FAMU (“Liaison Office”). Between January and March 2016, Plaintiff’s direct supervisor -- Linda Barge-Miles -- was out of the office on medical leave. During Barge-Miles’s absence, Jimmy Miller assumed responsibility for supervising the Liaison Office. Cleve Warren (then-Chairman of the Board) was also involved in overseeing the Liaison Office while Barge-Miles was out. Shortly after taking over as Plaintiff’s supervisor, Miller threatened to fire Plaintiff after discovering that Plaintiff disobeyed his instructions not to communicate directly with members of the Board. After seeking advice from Chairman Warren, Plaintiff left the office but returned to work the following day. A couple of months later, in March 2016, Miller reprimanded Plaintiff for failing to attend a scheduled meeting. Plaintiff responded by asserting that Miller was mistaken. Miller then told Plaintiff to leave campus and threatened to call the police if Plaintiff returned. Plaintiff sought clarification from Chairman Warren and from Barge-Miles about the status of Plaintiff’s employment but received no answer. Based on Plaintiff’s exchange with Miller and the silence from Chairman Warren and Barge-Miles, Plaintiff believed her employment with FAMU had been terminated. .. COURT DECISION: (.pdf) (.html)
♦ Nov 4, 2021 .. 5th Cir.: Scott v. U.S. Bank .. Plaintiff-appellant Paul Scott brought this civil rights action against his former employer, defendant-appellee U.S. Bank. Scott alleges that U.S. Bank violated 42 U.S.C. § 1981 by taking retaliatory employment actions against him because he opposed racial discrimination occurring within his department. Scott is an African American male. U.S. Bank hired Scott in March 2016 as a Default Management Support Specialist in its underwriting department. Between March 2016 and January 2018, Scott received exclusively positive reviews as well as one merit increase. Scott was also encouraged to apply for management positions by his Human Resources Business Partner, Lakisha Carman. In January 2018, Scott overheard a manager in his department, Craig Seward, a white male, tell Scott’s direct supervisor, Damarris Triggs, an African American male, that he “intended to terminate four (4) African American employees.” Scott then warned those employees. One of those employees complained to the human resources department, which led to Carman’s requesting that Scott provide a statement about the incident. Scott agreed, but he expressed concern that U.S. Bank may retaliate against him because of the statement. Carman assured Scott that he would not face retaliation. Despite such assurance, Scott claims that U.S. Bank then started to retaliate. .. COURT DECISION: (.pdf) (.html)
♦ Nov 3, 2021 .. D.D.C.: Hudson v. AFGE .. Over 18 months ago, the Court wrote that “this case is but another chapter in the seemingly intractable feud between Plaintiff Eugene Hudson and his union, Defendant American Federation of Government Employees (AFGE). Since that time, the world has changed via a global pandemic, but the feud nonetheless drags on. In its most recent phase, the parties tried their case to a jury, which returned a verdict for Hudson on one of his two remaining race-discrimination claims and awarded him $100,000 in damages. AFGE now moves for judgment as a matter of law under Federal Rule of Civil Procedure 50(b) or, in the alternative, for involuntary dismissal of the lawsuit with prejudice under Rule 41(b). Concluding that AFGE has not met the high standards for setting aside a jury’s verdict, the Court will deny both requests. .. COURT DECISION: (.pdf) (.html)
♦ Nov 3, 2021 .. 6th Cir.: Hall v. Rag-O-Rama .. This case shows that a contract’s bad grammar does not necessarily render it ambiguous. Sally Hall sued her former employer, Rag-O-Rama, LLC, when it fired her less than a year after promoting her to an area-manager position. A poorly drafted sentence in the parties’ employment contract stated: Hall “is reminded of the non-competition clause guide- lines, as well as, obligating associate managers and higher to one full year of employment on the management team at Rag-O-Rama.” This sentence has an obvious grammar mistake. Hall says that a reasonable person might understand it as requiring Rag-O-Rama to retain her for a year. In context, however, the sentence plainly obligated managers like Hall to stay for the year. It did not require Rag-O-Rama to do anything and so did not depart from Kentucky’s default rule allowing the company to fire Hall at any time. Maybe so, Hall responds, but Rag-O-Rama also fraudulently induced her to take this job with additional oral promises it did not keep. .. COURT DECISION: (.pdf) (.html)
♦ Nov 2, 2021 .. No New Cases To Post Today. SORRY.
♦ Nov 1, 2021 .. CCA: Zamora v. SIS .. David Zamora sued his former employer, Security Industry Specialists, Inc. (SIS), under the California Fair Employment and Housing Act (FEHA) for employment discrimination based on physical disability, failure to make a reasonable accommodation, failure to engage in the interactive process, retaliation, wrongful termination, and other claims after SIS laid him off while he was recovering from an industrial injury. The trial court granted summary adjudication of all but two causes of action. The parties later stipulated to dismiss the remaining claims, and the court entered judgment for SIS. In this appeal, Zamora challenges the trial court’s summary adjudication of his disability discrimination, retaliation, wrongful termination in violation of FEHA, and wrongful termination in violation of public policy claims. .. COURT DECISION: (.pdf) (.html)
♦ Nov 1, 2021 .. 11th Cir.: Felix v. Key Largo MC .. Before the scheduling change, KLM had employed Sobner Felix as a housekeeper for well over a decade. During that tenure Felix had worked the 8 a.m. to 4 p.m. day shift, making beds, cleaning, and removing trash. In 2016, KLM shifted to flexible scheduling and began to ask Felix to work the other housekeeping shift from 2 p.m. to 10 p.m. on some days. This created a problem for Felix. He suffered from diabetic retinopathy, a condition that impaired his vision enough that it prevented him from driving at night. And because he drove to work in Key Largo, Florida, from Homestead, Florida, working the later shift would require him to commute home from the hotel in the dark. To remedy this problem, Felix informed his supervisor Elsie Rodriguez of his diabetic retinopathy and requested that she not schedule him for the later shift. On appeal we must decide whether Felix’s diabetic ret- inopathy qualified as a disability under the Americans with Disabil- ities Act when it impaired his vision to the point that night driving was no longer safe. .. COURT DECISION: (.pdf) (.html)
♦ Nov 1, 2021 .. D.D.C.: Webb v. U.S. Veterans Initiative .. In 2010, Stanley Webb, a disabled veteran, was referred to U.S. Vets for housing assistance. At the time of the referral, U.S. Vets administered two housing programs: the Supportive Housing Program, which allowed participants to live with a roommate in multiple-occupancy units, and Shelter Plus Care, which allowed chronically homeless veterans with disabilities to live in one- bedroom units without roommates or two-bedroom units with a roommate. Webb alleges that he qualified for a one-bedroom unit through Shelter Plus Care. When he arrived, however, U.S. Vets allegedly told him that because no one-bedroom unit was available, it needed to place him temporarily in a multiple-occupancy unit through its Supportive Housing Program. A few months after Webb moved in, U.S. Vets placed a female applicant in its Shelter Plus Care program even though she had indicated on her application that she was not chronically homeless. Webb alleges that U.S. Vets told him that she was “given preferential treatment because she is a female.” Webb filed a complaint with the Department of Housing and Urban Development (HUD), claiming that U.S. Vets discriminated against him because of his sex in violation of the Fair Housing Act. .. COURT DECISION: (.pdf) (.html)
♦ Oct 29, 2021 .. No New Cases To Post Today. HAPPY WEEKEND.
♦ Oct 28, 2021 .. No New Cases To Post Today. SORRY.
♦ Oct 27, 2021 .. CCA: Wood v. Pioneer Fire .. Wood resigned from her job at the Pioneer Fire Protection District (District) on March 9, 2018. Nearly six months later, on Friday, September 7, 2018, Wood presented a claim to the County of El Dorado (County). In it, she alleged she had worked at the District as the district administrative secretary/assistant for five years until she was constructively discharged on March Wood alleged she was harassed and retaliated against by the board of directors and District personnel for reporting what she understood to be unlawful activity, including “improper use of District funds,” and because her husband had made his own complaints. .. COURT DECISION: (.pdf) (.html)
♦ Oct 27, 2021 .. CCA: Wilkin v. CHMP .. The Community Hospital of the Monterey Peninsula (the Hospital) terminated the employment of registered nurse Kimberly Wilkin (Wilkin) after discovering she had violated the Hospital’s policies governing the handling and documentation of patient medications. Wilkin sued the Hospital, alleging her discharge constituted disability discrimination, retaliation, and otherwise violated the Fair 1 Employment and Housing Act (FEHA), the unlawful denial of medical leave and retaliation in violation of the federal Family and Medical Leave Act of 1993 (FMLA), and constituted a wrongful termination in violation of public policy. .. COURT DECISION: (.pdf) (.html)
♦ Oct 27, 2021 .. 6th Cir.: Camp Inn v. Kirvan .. Like many cliches, there is wisdom in the adage that it is dangerous to mix business and pleasure. This case—which concerns the breakup of both an employment relationship and a personal one—shows why. We are asked who to believe. Gene Kirvan and Deborah Wiltse were dating when Wiltse came across a business opportunity: A motel and restaurant in northern Michigan was for sale. She had experience running a restaurant, and Kirvan had experience managing motels. So she bought the motel, named it Camp Inn, and hired Kirvan to work there with her. Kirvan managed the hotel staff and worked with Monsignor James Brucksch, a retired Catholic priest and Wiltse’s family friend, to do Camp Inn’s accounting. There was little oversight of Kirvan’s recordkeeping. A few years later, Kirvan and Wiltse broke up. Wiltse fired Kirvan and looked into Camp Inn’s accounting. When she did, she noticed some inconsistencies. So she hired an accountant, Cynthia Scott, to investigate. Scott found the records in poor shape and discovered that Kirvan used a somewhat unreliable computer system called Room Master (which mainly tracked room assignments and cleaning schedules). But she did an extensive report on Camp Inn and uncovered what she believed to be fraud. Wiltse told police that Kirvan had embezzled from the business, but prosecutors didn’t pursue a case against Kirvan for long. .. COURT DECISION: (.pdf) (.html)
♦ Oct 26, 2021 .. 5th Cir.: Lockhart v. Repub Srv .. Ricky Danell Lockhart, an African American man, worked for Republic as a roll-off driver before being fired in November 2017. In that job, he provided waste removal service to Republic’s customers in San Antonio, Texas. Republic’s drivers were paid on a piece-rate basis, also known as “can pay,” which was computed weekly by multiplying the individual driver’s personal “can rate” (determined by that driver’s experience and seniority) by each haul’s “can value” (based on the location of the can, its distance from the landfill, and the difficulty of the haul). .. COURT DECISION: (.pdf) (.html)
♦ Oct 26, 2021 .. 11th Cir.: Armstrong v. U.S. Attorney .. Armstrong is a corrections officer for the Federal Bureau of Prisons (BOP) and is by all accounts a good employee. Although she received positive performance reviews for her work, in 2013 Armstrong was arrested for domestic violence, which led the Office of Internal Affairs (OIA) to open an investigation into her conduct. The charges against Armstrong were dropped shortly after her arrest, but the internal affairs investigation continued. In March 2015 Armstrong began applying for various BOP positions at prisons in other states, seeking a promotion or transfer. Armstrong was qualified for each position for which she applied, but she was not selected for any of them. She suspected that because she is a female her supervisors were intentionally sabotaging her applications during the “reference check” process. She filed a charge with the EEOC and, eventually, this lawsuit. .. COURT DECISION: (.pdf) (.html)
♦ Oct 26, 2021 .. 6th Cir.: Murtha v. Rossford .. Plaintiff Patrick Murtha worked for the Rossford Exempted Village Schools for fifteen years, beginning in 2004. He served as Assistant Principal and later as Athletic Director. Murtha’s last employment contract had an expiration date of July 31, 2019. In early February 2019, a group of female students complained that Murtha harassed them, touching their hair, faces, and shoulders inappropriately. Pursuant to Rossford’s anti-harassment policy, the school’s administration initiated an investigation of the allegations and placed Murtha on paid administrative leave. While the investigation was ongoing, Murtha began negotiations with the Rossford Exempted Village Schools Board of Education regarding a “Transition Agreement.” According to the terms, Murtha agreed that he would complete his existing employment contract working from home, and that he would not seek renewal thereafter. The Board agreed that they had not and would not make any conclusions that Murtha had “engaged in any conduct giving rise to assignment, reassignment, discipline, non-renewal, and/or termination” nor initiate any corresponding proceedings. .. COURT DECISION: (.pdf) (.html)
♦ Oct 26, 2021 .. 2d Cir.: Reyes v. Westchester .. Reyes has been employed by Defendant-Appellee Westchester Medical Center of Valhalla, New York, as a respiratory therapist since 2011. She was supervised by Defendants-Appellees Kristian Schrull-Valiente, Lisa Panton, and Tim Murphy. In August 2017, Reyes informed her supervisor that she was pregnant. Shortly afterwards, Reyes’s work schedule was changed from the night shift to the day shift, prompting her to file a charge with the National Labor Relations Board (“NLRB”) on September 15, 2017. On September 19, 2018, the NLRB arbitrator determined that the schedule change violated the collective bargaining agreement. Reyes alleges multiple incidents between September 2017 and September 2019 in which, among other things, her accent was mocked, she was refused accommodations for her pregnancy, and she was given a poor performance evaluation that denied her a merit-based increase. She filed a charge with the New York State Division of Human Rights (“NYSDHR”) on October 31, 2018, alleging retaliation for her NLRB complaint and discrimination on the basis of sex and national origin. .. COURT DECISION: (.pdf) (.html)
♦ Oct 25, 2021 .. No New Cases To Post Today.
♦ Oct 22, 2021 .. No New Cases To Post Today. Happy Weekend.
♦ Oct 21, 2021 .. 2d Cir.: Gorbea v. Verizon .. Plaintiff-Appellant Ms. Gorbea sued her former employer, Defendant-Appellee Verizon New York Inc. (“Verizon”), in January 2018 through counsel. Gorbea alleged that Verizon fired her because of her disabilities and failed to provide her with reasonable accommodations, in violation of the Americans with Disabilities Act. .. COURT DECISION: (.pdf) (.html)
♦ Oct 21, 2021 .. 2d Cir.: Patel v. NYU .. Appellant Mr. Patel, pro se, sued his former employer, New York University (“NYU”) Langone Hospitals, asserting religious discrimination and retaliation claims under [the Civil Rights Act]; disability discrimination under the ADA; and retaliation and interference with his rights under the Family and Medical Leave Act (“FMLA”). The district court granted NYU’s motion to dismiss the complaint in a brief order offering no analysis. Mr. Patel appeals. .. COURT DECISION: (.pdf) (.html)
♦ Oct 20, 2021 .. No New Cases To Post Today. SORRY.
♦ Oct 19, 2021 .. No New Cases To Post Today. SORRY.
♦ Oct 18, 2021 .. 6th Cir.: Lockhart v. Marietta Schs .. Plaintiff Ms. Lockhart worked as a middle-school physical-education teacher for the Marietta City School District (“the District”) from the year 2000 until February 2019, when her employment was terminated. The events leading to Plaintiff’s termination began in January 2018. While shoveling snow on the morning of January 13, 2018, Plaintiff experienced what she describes as a “deeply religious event, in which she lost consciousness and was lifted up and carried eight to ten feet away, by what she believes was a “supernatural power. Lockhart claims that during this experience she saw several different visions and felt that “God entered [her] body. She also says that immediately upon experiencing the event on January 13, 2018, she felt relief from chronic back pain that she had suffered with for the previous year and felt that God had healed her. Lockhart believes God wanted her to share her experience with others and help those who could be touched by her experience, and that God was attempting to speak through her. Marietta City Schools terminated her employment. Here, Ms. Lockhart appeals. COURT DECISION: (.pdf) (.html)
♦ Oct 18, 2021 .. FLRA: Army v. NFFE .. In this case, we distinguish the circumstances presented here from those in U.S. Department of the Army, White Sands Missile Range, White Sands Missile Range, New Mexico (White Sands) and remind the labor‑management community that parties’ collective‑bargaining agreements may exclude any matter from their grievance procedure, and the Authority will honor those exclusions. The Union requests that we reconsider our decision in U.S. Department of the Army, Moncreif Army Health Clinic, Fort Jackson, South Carolina (Moncreif). .. FLRA DECISION: (.pdf) (.html)
♦ Oct 18, 2021 .. 3rd Cir.: Boddie v. Cardone .. Ms. Boddie sued her former employer, Cardone Industries, Inc. alleging discrimination and negligent infliction of emotional distress. Boddie joined Cardone as Director of Human Resources.1 From the start, things did not go well. On her first day, she questioned the racial and gender makeup of Cardone’s upper management. On her second, she learned her office was located not in Cardone’s headquarters, but a less hospitable satellite facility where “the overwhelming majority of [Cardone’s] minority employees work.” Day three brought news that business at Cardone was less robust than billed during her interviews. Vendor payments lagged, layoffs loomed, hiring was now frozen. In all, it was not the opportunity she expected. After a half fifth day, she resigned. Boddie filed a complaint against Cardone asserting claims of discrimination (Count 1) and negligent infliction of emotional distress (Count 2). .. COURT DECISION: (.pdf) (.html)
♦ Oct 15, 2021 .. FLRA: AFGE v. Prisons .. Arbitrator Lynette A. Ross found that the Union’s grievance was not procedurally arbitrable because it lacked the specificity necessary to enable the parties to attempt informal resolution as required under the parties’ collective-bargaining agreement. The Union filed exceptions to the award on essence, exceeds-authority, fair-hearing, and contrary-to-law grounds. .. FLRA DECISION: (.pdf) (.html)
♦ Oct 14, 2021 .. FLRA: Justice (Prisons) v. AFGE .. Statement of the Case : In this case, we remind the federal labor-relations community that an arbitrator may not disregard the procedural requirements that are specifically enumerated in the parties’ negotiated grievance procedure. Arbitrator Edward J. Gutman found that the Agency violated a memorandum of understanding (the overtime MOU) by assigning overtime shifts to non‑bargaining‑unit employees so that the Agency would not have to pay overtime to bargaining-unit employees (BUEs). However, because the Arbitrator’s determination that the grievance was procedurally arbitrable fails to draw its essence from the procedural requirements enumerated in Article 31, Section (f) of the parties’ agreement (Article 31), we vacate the award. .. FLRA DECISION: (.pdf) (.html)
♦ Oct 14, 2021 .. D.D.C.: Belov v. World Wildlife .. Plaintiff Ms. Belov worked for Defendant World Wildlife Fund, Inc. from 2012 until 2020, when WWF declined to renew her limited-term employment. Belov gave birth twice during her employment, taking maternity leave each time. She alleges that, over the span of several years, her supervisor made a series of negative comments about pregnant and nursing women, and that she gave Belov difficulty during her leaves and return to work. After WWF terminated Plaintiff, allegedly for a lack of funding, she filed this suit. Belov alleges that her discharge constituted unlawful sex and pregnancy discrimination, as well as retaliation under Title VII, the Pregnancy Discrimination Act, and the Family and Medical Leave Act. .. COURT DECISION: (.pdf) (.html)
♦ Oct 14, 2021 .. CCA: People v. Perlman .. Robert Perlman pressed the muzzle of what appeared to be a semiautomatic handgun into a pharmacy employee’s cheek as he stole more than $12,000 worth of prescription drugs. In 2019, a jury convicted Perlman of second degree robbery and commercial burglary and found true an allegation that Perlman personally used a deadly and dangerous weapon during the commission of the robbery, deadly weapon enhancement. The trial court found Perlman ineligible for probation and sentenced him to six years in state prison, comprised of the aggravated five-year term for the robbery and an additional year for the deadly weapon enhancement. Perlman appeals. .. COURT DECISION: (.pdf) (.html)
♦ Oct 13, 2021 .. Fed. Cir.: Miranne v. Navy .. Mr. Miranne was an employee of the Department of the Navy. Mr. Miranne sent a strongly worded, accusatory email to coworkers and supervisors suggesting that they were complicit in a conspiracy. As a result of the email, the Navy charged Mr. Miranne with disrespectful and improper conduct and eventually removed him from federal service based on that charge. Mr. Miranne appealed his removal .. COURT DECISION: (.pdf) (.html)
♦ Oct 13, 2021 .. GCA: Fross v. Norfolk .. Professional Transportation, Inc. (PTI) employee, Ms. Fross, was injured while working at Norfolk Southern Railway Company’s rail yard. She sued Norfolk Southern, asserting a claim under the Federal Employers’ Liability Act (FELA), 45 USC § 51 et seq. The trial court granted summary judgment to Norfolk Southern, finding that Fross was not its employee for the purposes of FELA. Fross now appeals, arguing that the trial court erred because there is at least a question of fact as to whether she was Norfolk Southern’s employee under FELA. She further argues that the trial court should not have dismissed the entire case because she pled an alternative state law claim for negligence. .. COURT DECISION: (.pdf) (.html)
♦ Oct 13, 2021 .. CAT: Knight v. Fairview .. This appeal concerns a police officer’s termination. Mr. Knight (“Knight”) was a police officer for the City of Fairview, Tennessee (“Fairview”). On August 16, 2019, Knight participated in the Arrestee’s arrest. The Arrestee, who had been driving erratically, was removed from her stopped vehicle and placed in handcuffs behind her back. While being walked toward a police cruiser by Knight and another officer, the Arrestee spat in Knight’s face. In response, Knight hit the Arrestee in the face with an open hand. Knight followed up by grabbing the Arrestee’s face and telling her not to spit on him again. Chief Humphreys led an investigation into the incident, which had garnered public attention. Knight was placed on administrative leave. Ultimately, Chief Humphreys submitted a request to the City Manager that Knight be terminated for improper use of force and for misrepresenting the incident afterward. The City Manager sent Knight a termination letter. The Trial Court affirmed Fairview’s termination of Knight. Knight appeals, arguing among other things that his procedural due process rights were violated because the City Manager both drafted his termination letter and presided over his pre-dismissal hearing. .. COURT DECISION: (.pdf) (.html)
♦ Oct 13, 2021 .. 6th Cir.: Sourinho v. Rich Prods2 .. Bill Sourinho warned his employer that a shooting was imminent. A colleague was about to bring a gun to kill him at work—or so he claimed. But the police didn’t find any guns, and the threat never materialized. Following an investigation, Rich Products Corporation fired Sourinho. In response, Sourinho filed a lawsuit alleging retaliatory discharge. .. COURT DECISION: (.pdf) (.html)
♦ Oct 7, 2021 .. 11th Cir.: Shelley v. Wesleyan .. The facts of this case are contested by both sides. The indisputable facts are that in November 2017, Kourtney Shelley began working for Wesleyan College as the Transfer Support Coordinator. Her supervisor, Clint Hobbs, who is Wesleyan’s Vice President for Strategic Enrollment, terminated Shelley’s employment in January 2018. However, the parties present different facts and circumstances leading up to Shelley’s termination. Hobbs stated in an affidavit that he hired Shelley due to her depth of experience in the field. Hobbs soon realized that Shelley was not meeting his expectations such as Shelley’s failure to complete the training, absenteeism, and failure to adhere to workplace policies. The problems came to a head when Hobbs made the decision to terminate Shelley in January 2018, saying that she was not a good fit for the position. Shelley contends that her termination was not a result of her poor work performance, but rather the result of racial discrimination and subsequent retaliation for her effort to resolve these issues. She alleges that Skalko was bullying and harassing her. .. COURT DECISION: (.pdf) (.html)
♦ Oct 7, 2021 .. CCA: Kabiling v. Lithia Motors .. Appellant first began working at Downtown L.A. Motors Mercedes Benz (DTLAMB) in 1985. Appellant’s position from approximately 2007 until March 2018 was business office manager. Appellant was employed under the direct supervision of Ryndak. In approximately August 2017, DTLAMB was purchased by Lithia. Like other DTLAMB employees, appellant began her employment with Lithia on or about August 7, 2017. Appellant’s employment was “at will.” Lithia reserved its right to terminate employment at will and demote at will. Lithia is a publicly traded company subject to multiple mandates. As such, business managers are responsible for the accuracy of books and records. Business managers reported directly to Lithia’s vice president of dealership, Jodi Rasor. Lithia provided training to its business managers after the acquisition. Rasor had concerns about appellant’s ability to use the new computer accounting programs. Appellant seemed to be struggling to navigate the programs efficiently. Rasor, who personally evaluated the financial statements, also had concerns regarding the accuracy of the DTLAMB financial statements. She noted an unexpected $60,000 adjustment in appellant’s financial statements for December 2017. Human resources director, Marilyn Dyson, testified that prior to March 9, 2018, Ryndak contacted her regarding appellant. Ryndak informed Dyson that appellant was not keeping up with her work and Ryndak was looking for suggestions as to what could be done. Dyson suggested that Ryndak demote appellant or find another position for her within the company. .. COURT DECISION: (.pdf) (.html)
♦ Oct 4, 2021 .. D.D.C.: Orozco v. Wray (FBI) .. Plaintiff Jahinnslerth Orozco (“Mr. Orozco”) brings this suit under Section 508 of the Rehabilitation Act . Mr. Orozco, a blind federal employee, alleges that the Federal Bureau of Investigations (“FBI”) has failed to comply with the accessibility standards of Section 508 and prevented blind employees from effectively and independently accessing critical systems required for employment. Mr. Orozco asserts that the FBI has procured, maintained, and is using software systems that he, as a blind employee, cannot access in the manner enjoyed by his nondisabled colleagues. .. COURT DECISION: (.pdf) (.html)
♦ Oct 4, 2021 .. D.D.C.: Doe v. Lieberman .. Former Department of Veterans Affairs anesthesiologist Jane Doe challenges the decision of a Department of Veterans Affairs (“VA”) disciplinary board. On August 1, 2018, the agency formally notified Doe of its proposal to remove her from federal service and permanently revoke her clinical privileges at ECHCS, based on a charge of “Unprofessional Conduct.” The charge was supported by eight “specifications” of inappropriate conduct. Along with the notification, the agency provided Doe with Dr. Mangione’s Aggravating & Mitigating Factors memorandum, as well as an evidence file containing summaries of the investigation interviews noted above and related documentation. Initial Decision On August 20, 2018, the agency’s deciding official, ECHCS Director Sallie Houser-Hanfelder, upheld five of the eight specifications of misconduct and the overall charge of unprofessional conduct. She also upheld Doe’s proposed removal from employment and the revocation of her clinical privileges. HERE, Former VA anesthesiologist Jane Doe challenges the decision of a Department of VA disciplinary board. .. COURT DECISION: (.pdf) (.html)
♦ Oct 4, 2021 .. NJSC: New Jersey v. Bradbury .. During the municipal court trial, the arresting officer, Sergeant James F. Sharkey, Jr., testified. According to Sharkey, on October 20, 2011, he stopped defendant, Jeannette M. Bradbury's car after observing her driving erratically. When Sharkey asked for defendant's driving credentials, he detected an odor of alcohol. Defendant admitted she had one drink prior to getting into her car. The sergeant then asked defendant to perform several field sobriety tests, including the horizontal gaze nystagmus test, walk-and-turn test, and one-legged stand test. According to Sharkey, defendant performed poorly on all three tests. Based on his observations and defendant's inability to successfully complete the sobriety tests, the sergeant arrested defendant for DWI. After being taken to the police station and given her Miranda rights, defendant volunteered she consumed five drinks prior to driving. She agreed to submit to an Alcotest at the police station. Defendant testified before the municipal court judge. She claimed the sergeant's testimony was flawed and the events were not as he testified. .. COURT DECISION: (.pdf) (.html)
♦ Oct 1, 2021 .. FLRA: OWCP v. AFGE .. As relevant here, the Union challenged the grievant’s ten-day suspension on the basis that the Agency did not have just cause to discipline her and did not use progressive discipline. The Arbitrator found that the grievant had behaved inappropriately, but that the suspension was not a reasonable penalty because the Agency failed to consider numerous mitigating factors. Consequently, he directed the Agency to mitigate the suspension to a written reprimand, update the grievant’s personnel record to reflect this change, and pay any corresponding backpay. The Arbitrator retained jurisdiction to resolve attorney fees issues. Neither party filed exceptions to the merits award. After issuing a merits award mitigating the grievant’s ten-day suspension to a written reprimand, Arbitrator Howard J. Stiefel issued a fee award granting the Union’s costs and seventy-five percent of the Union’s requested attorney fees. Subsequently, the Arbitrator awarded additional attorney fees and costs that the Union requested for preparing a response to the Agency’s opposition to the fee petition (supplemental award). The Agency challenges both awards. .. FLRA DECISION: (.pdf) (.html)
♦ Oct 1, 2021 .. D.D.C.: Williams v. Red Coats .. Ms. Williams began working for Red Coats on July 21, 2014, as a janitor providing cleaning services. She worked for Red Coats full-time during the day at Judiciary Center, under the supervision of co-Defendant Deine Avila. Red Coats has a contract with J Street Companies to provide cleaning services at the building, and one of the tenants is the U.S. Attorney’s Office for the District of Columbia. Robyn D. Williams alleges that her former employer, Red Coats Inc., and supervisor, Deine Avila, violated her right to medical leave and discriminated against her on the basis of her disability and race. Williams moves for summary judgment on her FMLA and D.C. FMLA claims. .. COURT DECISION: (.pdf) (.html)
♦ Oct 1, 2021 .. CCA: Zamora v. SIS .. David Zamora sued his former employer, Security Industry Specialists, Inc. (SIS) for employment discrimination based on physical disability, failure to make a reasonable accommodation, failure to engage in the interactive process, retaliation, wrongful termination, and other claims after SIS laid him off while he was recovering from an industrial injury. At all relevant times, SIS provided security staffing services to major corporations, including Apple Computer, Inc. (Apple) and other technology companies. SIS hired Zamora as a “standard deployment field supervisor” assigned to Apple’s main campus in Cupertino, California. He started on May 26, 2010. His duties included supervising mobile officers and security specialists on his shift, responding to security calls and client requests, conducting shift briefing meetings, evaluating and administering discipline to subordinates, driving, and providing “security for top-level employees.” .. COURT DECISION: (.pdf) (.html)
♦ Sep 30, 2021 .. CCA: Rivas v. PLS .. After being terminated from her job, plaintiff and appellant Rosa Rivas filed this action against her former employer, defendant and respondent Pacific Laundry Services. Plaintiff filed this action in December 2017 stating six causes of action, including five FEHA claims for disability discrimination, failure to prevent and correct discrimination, failure to make reasonable accommodation, failure to engage in good faith interactive process, and retaliation, and a claim of wrongful termination in violation of public policy. At a bench trial in 2019, judgment was entered in favor of defendant from which plaintiff now appeals. .. COURT DECISION: (.pdf) (.html)
♦ Sep 30, 2021 .. D.D.C.: Williams v. Turner .. Mr. Williams alleges that he was discriminated against when he was terminated in “retaliation for whistleblowing and challenging questionable business practices.” He alleges that his 2018 performance goals included responsibilities that were not part of his position description. Mr. Williams alleges that between April 25, 2018, and December 2018, he voiced concerns to management about being required to perform duties that were inconsistent with his position description, but he received no response to his concerns and instead was assigned additional extra duties. He alleges that he discussed his concerns with Turner Security’s Human Resources Department, leadership, and other concerned employees. Mr. Williams alleges that from January to March 2019, he was on short term disability, and upon his return to work he “was asked to sign a document stating that Turner Security had the ability to revise and change company policy without notifying staff of the changes.” He alleges that he was not given enough time to review the updates to the Operation Manual, and that he refused to sign the document. Mr. Williams alleges that thereafter, he was terminated “without cause.” .. COURT DECISION: (.pdf) (.html)
♦ Sep 30, 2021 .. NJSCA: Taylor v. Labor .. Petitioner Brian L. Taylor (Taylor) appeals from the final decision of the Department of Labor Board of Review (Board) disqualifying him for unemployment benefits due to Taylor's employer terminating him for cause. On September 26, 2018, Taylor began part-time employment as a sales associate for AM Retail. On April 11, 2019, Taylor witnessed a hostile confrontation between two co-workers that left one worker visibly upset. Shortly thereafter, in front of his supervisor and co-workers, Taylor told one of the co-workers, "[i]f you did anything to upset [the other worker], I'll fucking flip you over and break your fucking neck." AM Retail's applicable employee policy handbook had a code of conduct provision, which prohibited "[a]ll forms of unlawful conduct, including threatening or intimidating behavior, threats, assaults or violence of any kind in [the] workplace." It further stated an employee could be immediately discharged for such infractions. AM Retail's store manager sent Taylor home. One day after sending him home, AM Retail fired Taylor. Taylor filed a claim for unemployment benefits on April 12, 2019. On May 1, 2019, a Board deputy disqualified Taylor from receiving unemployment benefits between April 7, 2019 and May 18, 2019 because he was discharged due to misconduct at work. The deputy found Taylor's employer informed him of the company policy and that his actions constituted "a willful and deliberate disregard of the standards of behavior [which AM Retail] had a right to expect." Taylor appealed the deputy's determination to the Appeal Tribunal (Tribunal) on May 8, 2019. .. COURT DECISION: (.pdf) (.html)
♦ Sep 29, 2021 .. FLRA: IRS v. NTEU .. As relevant here, the Union filed a grievance alleging that the Agency failed to comply with a 2014 award by withholding taxes from retroactive transit‑subsidy payments. The Arbitrator stated that the “fundamental question” before him was whether the transit-subsidy payments were “taxable.” The Arbitrator concluded that the payments were taxable and directed the Agency to reimburse the withheld taxes to employees. The Agency filed exceptions to the award, arguing the Arbitrator did not have jurisdiction to determine whether the retroactive transit‑subsidy payments were taxable. The Union requests that we reconsider our decision. .. FLRA DECISION: (.pdf) (.html)
♦ Sep 28, 2021 .. FLRA: VA v. AFGE .. The Union requests that we reconsider the Authority’s decision in U.S. Department of VA, Medical Center, Kansas City, Missouri (VA, Kansas City). The case arose when the Agency stopped participating in joint labor‑management meetings (joint meetings) in order to comply with Executive Order No. 13,812 (the rescission EO). Arbitrator Danielle L. Carne found that the Agency’s actions violated the parties’ master collective‑bargaining agreement, along with an incorporated memorandum of understanding (MOU). In VA, Kansas City, the Authority determined that the Arbitrator’s award was deficient on several grounds and vacated it. In its motion for reconsideration (motion), the Union attempts to relitigate the Authority’s conclusions in VA, Kansas City, misconstrues the Authority’s findings. .. FLRA DECISION: (.pdf) (.html)
♦ Sep 28, 2021 .. D.D.C.: Edwards v. Best Buy .. Plaintiff Stephen S. Edwards (“Mr. Edwards”) brings this suit after an incident at a Best Buy store in Arizona, where Mr. Edwards resides. Mr. Edwards claims that an elderly Best Buy employee, Mr. Lance Klein (“Mr. Klein”), physically and sexually assaulted him while he was at a Best Buy store but provides no further details of the incident. .. COURT DECISION: (.pdf) (.html)
♦ Sep 28, 2021 .. CCA: Barrera v. Albertsons .. Barrera sprained his ankle far along into his 90-day term of probationary employment and was provided with 37 days of medical leave as an accommodation, even though his probationary performance up to the point of his disability had been subpar. All parties agreed Barrera could not have performed the strenuous functions of the Albertsons job while he needed to use an ankle boot and cane. Eventually Albertsons terminated Barrera on the basis that his pre-leave performance had consistently been graded below expectations. The trial court found that Albertsons was entitled to do so. On appeal, Barrera argues the FEHA entitled him to an additional period of time to improve his performance once he returned from medical leave. .. COURT DECISION: (.pdf) (.html)
♦ Sep 28, 2021 .. D.D.C.: Squires v. Gallaudet Univ .. Plaintiff Anibelka Henriquez Squires has filed a twelve-count complaint against her former employer, Gallaudet University, arising out of her employment as an Academic-Career Advisor from 2016 to 2018. Plaintiff, who is Latina and hard-of-hearing, has brought claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, the Family Medical Leave Act of 1993, the D.C. Human Rights Act, and the D.C. Accrued Safe and Sick Leave Act, alleging that she was subjected to race and disability discrimination, retaliation, a hostile work environment, and interference with her statutory rights. .. COURT DECISION: (.pdf) (.html)
♦ Sep 28, 2021 .. 11th Cir.: Coley v. Shaw .. Zachary E. Coley filed a pro se lawsuit alleging that his former employer, Shaw Industries, Inc., violated the Americans with Disabilities Act (“ADA”)., when it refused to reduce his hours as a reasonable accommodation for his disability and then terminated his employment on August 12, 2019. The district court dismissed Coley’s complaint because he did not timely file a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) within 180 days after his termination. .. COURT DECISION: (.pdf) (.html)
♦ Sep 27, 2021 .. 2d Cir.: Ziparo v. CSX .. Plaintiff-Appellant Cody Ziparo sued his former employer, Defendant- Appellee CSX Transportation, Inc., for unlawful retaliation under the Federal Railroad Safety Act (“FRSA”). Ziparo alleges that he was terminated because he engaged in protected activity by “reporting, in good faith, a hazardous safety or security condition.” The United States District Court for the Northern District of New York (Suddaby, C.J.) granted summary judgment for CSX. We conclude that the district court erred. Accordingly, we VACATE the judgment of the district court and REMAND to the district court for further proceedings. .. COURT DECISION: (.pdf) (.html)
♦ Sep 27, 2021 .. CCA: Sterling v. Sacramento .. Defendant County of Sacramento (the County) released plaintiff Juvoni Sterling (Sterling), an African-American woman, from her position as a probationary building inspector. Sterling sued the County for damages, alleging race and gender discrimination, retaliation, failure to prevent retaliation and discrimination, and defamation. After a five-week trial, the jury returned a verdict in Sterling’s favor on her race discrimination, retaliation, failure to prevent, and defamation claims, awarding her $450,001 in damages. The County moved for judgment notwithstanding the verdict (JNOV) and for a new trial. The trial court denied both motions and awarded Sterling attorney fees in the amount of $1,113,750. The County now appeals the judgment, the denial of the JNOV motion, and the fee award. .. COURT DECISION: (.pdf) (.html)
♦ Sep 24, 2021 .. No New Cases To Post Today. Sep 23, 2021 .. No New Cases To Post Today.
♦ Sep 22, 2021 .. 1st Cir.: U.S. v. Rivera .. After suffering a work injury as a mechanic for the United States Postal Service ("USPS"), Ricardo Rivera-Ortiz began receiving worker's compensation and Social Security disability benefits. As a condition of receiving those benefits, Rivera had to file forms indicating whether he was undertaking any work or volunteer activities. At some point, after Rivera had been receiving benefits for years, the USPS Office of the Inspector General ("OIG") began investigating his case. It determined that he had continued working and volunteering with his union, the American Postal Workers' Union ("APWU"), without disclosing those activities as required. Rivera was eventually charged with making false statements on the relevant government forms, theft of government property, and failing to disclose an event that affected his right to Social Security payments. A jury found him guilty on all counts. He now challenges the sufficiency of the evidence to support the convictions, the exclusion of certain mitigating evidence, and some aspects of his sentence. .. COURT DECISION: (.pdf) (.html)
♦ Sep 22, 2021 .. MCA: Trunnel v. MOHELA .. MOHELA is the Missouri Higher Education Loan Authority. Trunnel alleges that she was "constructively discharged" from MOHELA on January 11, 2019. On October 16, 2019, Trunnel filed suit against MOHELA in the Circuit Court of Boone County, Missouri alleging that MOHELA discriminated against her on the basis of race, sex, and disability, and that MOHELA retaliated against her once she complained of the discrimination. On August 7, 2020, MOHELA moved to dismiss the proceedings and compel arbitration, or, in the alternative, to stay the proceedings and compel arbitration. MOHELA argued that all of Trunnel's claims "are subject to mandatory arbitration" because by signing the Acknowledgment of Receipt document, Trunnel "agreed to arbitrate any 'claims for discrimination, harassment, violation of any federal, state, or other governmental law, statute or regulation, termination of employment or tort claims' that she might have against MOHELA." .. COURT DECISION: (.pdf) (.html)
♦ Sep 21, 2021 .. D.D.C.: Williams v. Sessions (Justice) .. Plaintiff, an African-American woman employed by the Bureau of Prisons’ chaplaincy services, sues her employer. Mary Tyes-Williams is an African-American woman. She joined the Bureau of Prisons in September 2005 as a staff chaplain and has since worked there in various chaplain roles. In June 2014, the Bureau promoted Williams to serve as a GS-13 Chaplaincy Services Coordinator covering the Bureau’s South Central and Southeast Regions. Ultimately, Kevin Kelley was selected for the position in February 2016. Plaintiff, Ms Williams, asserts that in selecting another applicant for a promotion, the Bureau discriminated against her based on her race and sex in violation of Title VII. .. COURT DECISION: (.pdf) (.html)
♦ Sep 21, 2021 .. Fed. Cir.: Deleon v. DVA .. On February 28, 2019, the Petitioner became em- broiled in an altercation at the Washington, DC Veterans Affairs Medical Center (VAMC). At the time of the incident, he was a police officer whose statutory arrest authority had been temporarily suspended due to failure to meet certain weapon-certification requirements. ; Based on the arrest-authority suspension and a prior injury, the Petitioner’s supervisors had assigned him du- ties as a security assistant. Robyn Hardy, the Chief of Police of the DC VAMC also moved the Petitioner to the security desk due to complaints from VA personnel about unauthorized entries into employee offices, including the Human Resources (HR) Office. ; His primary job as a security assistant was to check visitors’ identifications at a VAMC entrance. While checking identifications at the facility that day, he encountered Ms. Karen Dadey, a veteran visiting the VAMC for medical appointments. Dadey contends that, upon entering the VAMC, the Petitioner asked for her identification. She noticed that the Petitioner was not wearing a police badge or uniform and asked him, in turn, whether he was an employee. The Petitioner did not respond and asked for her identification again. Id. When Dadey did not immediately provide her identification, the Petitioner asked her to step aside to allow other visitors to pass. After she entered the building, Dadey stopped at a police room and complained about her encounter with the Petitioner. .. COURT DECISION: (.pdf) (.html)
♦ Sep 20, 2021 .. No New Cases To Post Today. SORRY.
♦ Sep 17, 2021 .. 6th Cir.: Haydar v. Amazon Corporate .. In this employment discrimination case, Mr. Haydar, a senior technology manager at Amazon Marketplace, sued Amazon and the manager he claims was responsible for the discrimination, Mr. Faricy. Mr. Haydar, a practicing Muslim of Syrian descent, began working for Amazon in November of 2012 as a senior technology manager. Haydar initially reported to Mr. Kandasamy, whose manager was Peter Faricy, the head of Amazon Marketplace. During Haydar’s first performance review in 2013, Kandasamy told him that he had “serious concerns” about whether Haydar could succeed at his job or at Amazon, unless he took “immediate action to improve on [his] effective communication, active listening, diving deep, earning the trust of others, insisting on the highest standards and being right a lot.” Kandasamy rated Haydar’s performance as “needs improvement” (a lower rating) and his leadership at “solid strength” (a middle rating). .. COURT DECISION: (.pdf) (.html)
♦ Sep 17, 2021 .. D.D.C.: Fowler v. DC Govt .. Plaintiff, Ms. Fowler, who is now 63 or 64 years old, worked for the ABRA from August 17, 1987, until October 15, 2019. Beginning in 1994 and until her termination, she served as a Licensing Specialist, a Grade 11 position. At some point, problems arose between Plaintiff and her supervisor, Licensing Program Manager Mr. Gordy. In 2013, Plaintiff spoke with ABRA Director Fred Moosally about Gordy, informing Moosally that Gordy was “targeting her on the basis of her age.” Meanwhile, in November 2016, the D.C. Department of Human Resources initiated a special investigation involving Plaintiff, based on allegations of employee misconduct and insubordination, including . . . making threats, behaving in an unstable manner, and exhibiting caustic behavior towards Mr. Gordy.” .. COURT DECISION: (.pdf) (.html)
♦ Sep 17, 2021 .. 3rd Cir: Silla v. Holdings .. Ms. Silla brought this lawsuit against her former employer, Rivers Casino, pursuant to the Americans with Disabilities Act (“ADA”), The Civil Rights Act of 1964, alleging discrimination, harassment, and retaliation. On February 25, 2020, Ms. Silla filed a charge with EEOC against Rivers Casino, alleging discrimination in violation of the ADA and Title VII. The EEOC investigated her claim and declined to proceed, then issued her a “right-to-sue” letter on March 20, 2020, explaining that she had 90 days from her receipt of the letter to file a lawsuit against Rivers Casino. Silla filed her complaint on June 26, 2020, ninety- eight (98) days after the issuance of the right-to-sue letter. Rivers Casino filed a motion to dismiss because Silla’s complaint was untimely filed. The District Court agreed and dismissed Silla’s ADA and Title VII claims with prejudice. 3rd Cir : For the reasons that follow, we will vacate the District Court’s judgment and remand for further proceedings. .. COURT DECISION: (.pdf) (.html)
♦ Sep 16, 2021 .. No New Cases To Post Today. SORRY.
♦ Sep 15, 2021 .. D.D.C.: Woodson v. Smith .. Ms. Woodson alleges she has long suffered from endometriosis, a painful condition “affecting several major life activities.” She underwent three surgical procedures between 2007 and 2018 and “suffer[ed] from the effects of endometriosis” during her tenure at Edgewood. But she claims that she “perform[ed] exceptionally . . . and never received a dissatisfactory performance evaluation, never was placed on a Performance Improvement Plan (PIP), and never was demoted or suspended” before her termination in 2019. Woodson asserts that, despite her strong performance, multiple Edgewood employees targeted her, creating a hostile work environment. .. COURT DECISION: (.pdf) (.html)
♦ Sep 15, 2021 .. D.D.C.: Stoe v. Garland (DOJ) .. Plaintiff Debra Stoe, a scientist in the Department of Justice’s (“DOJ”) Office of Science and Technology (“OST”), was denied a promotion in 2014 to serve as OST’s Division Director. Mark Greene, a younger man with less experience at OST, received the job instead. The selecting official was plaintiff’s then-supervisor Chris Tillery. Thereafter, Stoe brought suit against her employer, the U.S. Attorney General, alleging that OST’s failure to promote her resulted from gender and age discrimination in violation of Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act. .. COURT DECISION: (.pdf) (.html)
♦ Sep 15, 2021 .. MSC: Barthel v. Barretts Minerals .. Barthel was employed with Barretts Minerals, Inc. (Barretts) as a lab technician and loader operator from July 2012 until his termination on March 28, 2019. Barthel was terminated after testing positive for THC in a random drug and alcohol urine analysis test. In January 2019, Barthel’s physician prescribed medical marijuana as treatment for his diagnosed Post-Traumatic Stress Disorder (PTSD) related to an accident several years earlier. Barthel received his “green card” and began using medical marijuana during the evenings after work in February 2019. Barthel did not use medical marijuana immediately prior to nor during any of his work shifts. On March 15, 2019, Barretts randomly selected Barthel for a drug and alcohol urine analysis test pursuant to the company’s Human Resources Policy and Procedural Guide (the Policy). Barthel informed his supervisor, James de los Rios, that he had been prescribed medical marijuana and would likely test positive for THC. Barthel was placed on suspension pending the results of the drug test. On March 28, 2019, the drug test identified the presence of THC in Barthel’s system. Barretts terminated Barthel for violating the Policy. .. COURT DECISION: (.pdf) (.html)