Second Circuit
Tapia v. BLCH 3rd Avenue, ___ F.3d ___, 2018 WL 4685628 (2d Cir. Oct. 1, 2018).
Where plaintiffs prevailed at trial alleging they were denied minimum and overtime wages under state and federal law, the district court held that plaintiffs cannot recover liquidated damages under both statutes. The Court of Appeals affirms. The trial court awarded liquidated, or double, damages under the state law claim. But federal law also provides for these double damages. While plaintiffs seek liquidated damages under federal law, the Second Circuit has already held that the Fair Labor Standards Act does not allow for duplicative liquidated damages. The Court of Appeals said that in Rama v. Islam, 887 F.3d 118 (2d Cir. 2018). Plaintiffs also appeal because they seek damages against an individual, Sharma. The trial court held that Sharma was not personally liable because plaintiffs could not satisfy the relevant factors guiding that inquiry, including whether Sharma had control over the plaintiffs’ employment. The multi-factor test is inherently factual, and since the Court of Appeals will not second-guess the district court’s factual findings if they have some basis in the record, the ruling in Sharma’s favor stands.
Judge Calabresi concurs, adding that the Second Circuit has never held that the FLSA bars a state from awarding double or even treble damages for labor law damages in cases like this. Instead, “our holding [in Rama] is limited to reading the FLSA to vacate the federal damage award, given the existence of state labor law damages.” Judge Calabresi expresses concern Rama could be read to mean that the FSLA damages should be vacated because state law does not allow double recovery. He worries that other federal courts “will read Rama as making a holding as to what is required by New York state labor law,” which would “create all sorts of problems.”
Flood v. Just Energy, ___F.3d ___, 2018 WL 4471630 (2d Cir. Sept. 19, 2018)..
The Court of Appeals holds that the Fair Labor Standards Act does not require management to pay “outside salesmen” overtime. Plaintiffs engaged in door-to-door solicitation to persuade customers to buy Just Energy’s electricity or natural gas. Courts around the country are divided on whether Just Energy’s salespersons are entitled to overtime. The Second Circuit says they are not. Under the regulations, an outside salesman is someone whose primary duty is “making sales” or obtaining orders or contracts for services or the use of facilities, and who is customarily and regularly engaged away from the employer’s place of business in performing these primary duties. Plaintiff Flood falls within the exception. He was “making sales” by going door-to-door selling Just Energy’s products, and he got paid only when he was able to obtain a written contract. Flood argues that he was not “making sales” because defendant had discretion to reject the contracts he secured from customers. Rejecting that argument, the Court of Appeals says, “we do not agree that the outside salesmen exemption requires a showing that a selling employee has an unconditional authority to bind the buyer or his employer to complete the sale.” Authority for this proposition lies with the Supreme Court’s ruling in Christopher v. SmithKline (2012), which “declined to interpret the ‘making sales’ requirement to mandate a showing that an employee has fully consummated a sales transaction or the transfer of title to property.” The Court in Christopher also counseled against the use of technicalities to defeat the outside salesmen exception.
Munoz-Gonzalez v. DLC Limousine Service, Inc., ___ F.3d ___, 2018 WL 4471522 (2d Cir. Sept. 19, 2018).
Long: The Court of Appeals holds that limousine drivers are not entitled to overtime pay under the Fair Labor Standards Act. In this case, the Court applies the FLSA’s “taxicab exception” to the overtime rules. The Second Circuit has never interpreted the taxicab exception before, so it starts with the language of the statute in determining its scope. The statute does not define “taxicab,” so the Court looks to Webster’s New International Dictionary, the unabridged second edition from 1934, issued around the time of the FLSA. That dictionary says a taxicab is “[a] passenger‐carrying vehicle, usually a motor vehicle designed to seat five or seven persons, with or without a taximeter, maintained for hire on public thoroughfares or at public stations or stands, but not operated on a schedule.” More broadly, the FLSA exempts employees throughout the transportation industry, which was already regulated by other statutes.
In this case, the Court of Appeals notes that while “our Circuit has traditionally construed FLSA exemptions narrowly and against the employers asserting them,” that framework changed in 2018, when the Supreme Court issued Encino Motorcars v. Navarro, which hat method of statutory interpretation for the first time. The Second Circuit states:
we conclude that there is no genuine dispute that DLC’s drivers qualify for the taxicab exemption. First, DLC’s fleet consists of chauffeured passenger vehicles, including town cars, SUVs, and luxury vans. Second, DLC’s cars are available for hire by individual members of the general public. Third, DLC’s cars take passengers wherever they want to go and “do not cover fixed routes or adhere to fixed schedules” or fixed termini. Accordingly, DLC’s drivers qualify for the taxicab exemption.
Submitted by:
Stephen Bergstein, Esq.
Bergstein & Ullrich, LLP
5 Paradies Lane
New Paltz, New York 12561
(845) 419-2250
www.TBULaw.com
www.secondcircuitcivilrights.blogspot.com
Fourth Circuit
Equal Employment Opportunity Commission v. Baltimore County, __ F.3d __ , 2018 WL 4472062 (4th Cir. Sept. 19, 2018).
The EEOC sued Baltimore County alleging that it violated the Age Discrimination in Employment Act, 29 U.S.C. § 621, by requiring older employees to pay higher retirement plan contributions than younger employees. The district court initially granted summary judgment in favor of the County. On appeal, the Fourth Circuit reversed. On remand, the district court entered partial summary judgment in favor of the EEOC on liability. The Fourth Circuit affirmed the partial summary judgment, and remanded for consideration of damages. On the second remand, the EEOC sought retroactive monetary relief, in the form of back pay to the affected employees. The district court denied the motion, concluding that it had discretion to grant or deny back pay. In the alternative, even if back pay were a mandatory remedy, the district court concluded that it would deny back pay pursuant to its equitable powers because of the EEOC’s delay in bringing litigation. The EEOC appealed.
The enforcement provision of the ADEA, 29 U.S.C. § 626(b), confers jurisdiction on federal courts to “grant such legal or equitable relief as may be appropriate to effectuate the purposes of” the statute. Upon enacting the ADEA, Congress incorporated § 216(b) of the Fair Labor Standards Act, which provides that any employer who violates the FLSA “shall be liable” for back pay, among other remedies. On appeal, the County relied on the broad language of the ADEA enforcement provision to contend that courts have discretion to grant or deny relief, including back pay. The EEOC argued that back pay was mandatory, citing Congress’s incorporation of § 216(b) of the FLSA into the ADEA.
The Fourth Circuit agreed with the EEOC, holding that retroactive monetary relief, including back pay, is mandatory upon a finding of liability for violation of the ADEA. The Court first cited the remedial purpose of the ADEA. The Court then examined Congress’s intent when it incorporated § 216(b) of the FLSA into the ADEA. The Court concluded that because back pay was a mandatory legal remedy under the FLSA at the time Congress enacted the ADEA, Congress intended to provide a mandatory remedy when it incorporated § 216(b) into the ADEA. The Fourth Circuit also cited Supreme Court law for the general proposition that where the ADEA adopted part of the FLSA, the ADEA provision should be interpreted in the same way as its FLSA counterpart. Finally, the Fourth Circuit concluded that the legislative history of the ADEA confirmed that Congress deliberately chose to incorporate the FLSA’s remedies into the ADEA.
The Fourth Circuit rejected the County’s reliance on Title VII cases where the Supreme Court has held that retroactive monetary relief is discretionary. While back pay is a discretionary equitable remedy under Title VII, it is a mandatory legal remedy under the ADEA.
Although the EEOC conceded that it unduly delayed its investigation, causing the County to incur additional back pay liability, the EEOC represented that it would not to seek back pay for the period of delay. Based on this representation, the Fourth Circuit concluded that the delay did not affect its analysis on appeal. Therefore, the Fourth Circuit vacated the district court’s order and remanded for a determination of the amount of back pay.
Submitted by:
Paul K. Sun, Jr.
Kelly Margolis Dagger
Ellis & Winters LLP
paul.sun@elliswinters.com
kelly.dagger@elliswinters.com
Post Office Box 33550
Raleigh, North Carolina 27636
Telephone: 919.865.7014
www.elliswinters.com
Fifth Circuit
DeVoss v. Southwest Airlines Co.,__F.3d __, 2018 WL 4268435 (5th Cir. Sept. 7, 2018).
Amy DeVoss worked as a flight attendant for Southwest Airlines. She took sick leave for sinusitis from June 7 -11, 2018. On June 8th, Southwest sent her notice of FMLA eligibility for a serious health condition and asked that she return her FMLA application by June 23rd. DeVoss did not submit an application expressing an intent to take FMLA-protected leave by that deadline. A few weeks later, on June 24, DeVoss called Southwest to invoke a commuter policy when she realized that she would be late for work. After being advised that the commuter policy did not apply, DeVoss asked how many points would be assessed for a no-show versus a sick call. After being told how many points would be assessed for a no-show, she said she would not be at work because she was sick with sinusitis. Southwest initiated an internal investigation after DeVoss missed a 3-day work assignment. It determined that DeVoss had been dishonest when she claimed to be ill on June 24th and terminated her for dishonesty. DeVoss filed a grievance under the Collective Bargaining Agreement, but it was denied. DeVoss later filed suit against Southwest alleging FMLA interference and retaliation.
Rejecting DeVoss’s effort to stablish a prima facie case because she could not establish that she notified Southwest of her intent to take FMLA leave, the district court issued summary judgment. The court also ruled that, even if she had established a prima facie case, she failed to establish that Southwest’s proferred reason for termination was pretextual, and that DeVoss had no basis for a retaliation claim.
On appeal, the Fifth Circuit reiterated the five elements of an FMLA interference claim, finding that DeVoss failed to establish the fourth element (she gave proper notice of her intention to take FMLA leave). Plaintiff argued that her failure to give notice of the need for FMLA was excused because Southwest failed to provide her with another FMLA notice of eligibility, but the Fifth Circuit held that, because the two absences stemmed from the same illness, Southwest did not need to re-issue the FMLA eligibility notice for the June 24th absence. The court also rejected DeVoss contention that Southwest’s reason for termination was pretextaul, finding that Southwest had a good faith belief that DeVoss had lied about being sick. Finally, the court rejected DeVoss’ arguments of alleged procedural irregularities in the termination process
Roberson-King v. Louisiana Workforce Commission, Office of Workforce Development, __F.3d __, 2018 WL 4402110 (5th Cir. Sept. 17, 2018)..
In June 2014, Angela Roberston-King applied for a promotion to a district supervisor position from her position as a rehabilitation counselor at Louisiana Rehabilitation Services. After being interviewed, but not selected, for the promotion, Plaintiff filed suit alleging that she was not promoted because of her race. The district court dismissed Plaintiff’s state law tort claim pursuant to Rule 12(b)(6) and granted summary judgment on her Title VII claim.
On appeal, the Fifth Circuit affirmed the trial court’s decision that a claim of discrimination must be brought pursuant to Louisiana’s Employment Discrimination rather than state tort law, finding a general tort claim inconsistent with the governing, specific employment law provisions. As to her Title VII claim, although Plaintiff established a prima facie case under the McDonnell Douglas standard, she could not overcome Defendant’s legitimate business reason for its decision (i.e., the employee awarded the position was more competitive and had credentials that Plaintiff lacked). The court found that Plaintiff was not “clearly more qualified” than the promoted employee, and the employer’s decision to weigh certain credentials over other qualifications was a reasonable business judgment.
Submitted by:
Donna Phillips Currault
Gordon, Arata, Montgomery, Barnett,
McCollam, Duplantis & Eagan, LLC
201 St. Charles Ave. 40th Floor
New Orleans, Louisiana 70170-4000
Direct: (504) 569-1862
Email: dcurrault@gamb.law
Sixth Circuit
Bullington v. Bedford County, __F.3d__, 2018 WL 4579692 (6th Cir. Sept. 25, 2018).
In Bullington v. Bedford County, __F.3d__ (6th Cir. 2018), the plaintiff filed a lawsuit against her employer alleging that it treated her differently because of her cancer diagnosis and treatment. The plaintiff claimed that this violated, among many others, (1) the Americans with Disabilities Act (“ADA”) and (2) the Fourteenth Amendment’s Equal Protection Clause. After the district court granted the county’s motion to dismiss on the pleading, the plaintiff appealed to the Sixth Circuit.
Addressing the plaintiff’s ADA claim, the Sixth Circuit agreed with the district court that the plaintiff failed to exhaust her administrative remedies. While admitting that she had not filed a timely charge with the Equal Employment Opportunity Commission, the plaintiff argued that this requirement was waived because she had relied on advice from her prior counsel, relying on Curry v. United States Postal Service, 583 F. Supp. 334 (S.D. Ohio 1984). However, the court disagreed with the plaintiff’s argument, finding that in Curry, equitable tolling applied because the misleading statement was made by an Equal Employment Opportunity counsel, an individual who was “seemingly empowered by law to implement and enforce any discrimination statutes.” In contrast, the plaintiff’s prior private counsel did not have similar power to enforce the ADA.
Turning to the plaintiff’s constitutional claim, the Sixth Circuit held that the district court was incorrect in ruling that the plaintiff’s ADA claim precluded her §1983 claims for disability discrimination under the Fourteenth Amendment. First, the court distinguished a §1983 claim to enforce the ADA with a §1983 claim to enforce the U.S. Constitution. Accordingly, the district court had mistakenly relied on a previous Sixth Circuit decision, which held that the plaintiff could not use a §1983 claim to enforce a purely statutory claim under Title VII (which has an analogous remedial scheme as the ADA). Moreover, the district court also erred in relying on an Eight Circuit decision that preceded and lacked the Supreme Court’s guidance in Fitzgerald v. Banstable Sch. Comm., 555 U.S. 246 (2009), which had held that Title IX did not preclude a §1983 claim for an Equal Protection violation.
Based on Fitzgerald, the Sixth Circuit then considered the “three key components” of the ADA—(1) its text and history, (2) its remedial scheme, and (3) the contours of its rights and protection—to conclude that Congress did not intend for the ADA to preclude a constitutional claim for disability discrimination. In examining the first component, the Sixth Circuit found that the ADA’s statutory text and legislative history do not demonstrate a congressional intent to preclude simultaneous claims. Indeed, both the statutory language of the ADA and its legislative history provide that the ADA should not be construed to limit the rights and remedies under any other law that provides greater or equal protection for the rights of disabled individuals. Additionally, the close relationship between the ADA and Title VII confirms that Congress did not intend to preclude alternative remedies for disability discrimination, because at the time the ADA was passed, courts, including the Sixth Circuit, had frequently found that Title VII did not preempt an Equal Protection claim brought under §1983. Finally, the Supreme Court in Fitzgerald similarly applied this reasoning to find that Title IX does not preclude a plaintiff from bringing a §1983 claim alleging a Fourteenth Amendment violation. Thus, the Sixth Circuit concluded that the ADA was not intended to displace §1983 suits enforcing constitutional rights; rather, Congress envisioned the ADA to supplement, not replace, existing remedies to victims of disability discrimination.
Regarding the second component, the Sixth Circuit found that an analysis of the ADA’s remedial scheme showed that the ADA does not preempt the parallel Equal Protection claims for disability discrimination. Per the court, it had long held that an employee may bring a §1983 claim for a constitutional violation along with a Title VII claim. Because the ADA employs the same remedial procedure as Title VII, the ADA’s remedial scheme does not evince a congressional intent to preclude §1983 disability discrimination claims for violation of the Fourteenth Amendment.
Lastly, the Sixth Circuit found that the differences between the rights and remedies provided by the ADA and those provided by the Fourteenth Amendment evidence a lack of congressional intent that the ADA preclude separate enforcement of disabled individuals’ Equal Protection rights. First, the rights created by the ADA differ from those already protected by the Equal Protection Clause. This is evidenced by how the stated purposes of the ADA pronounce protections that had not been firmly established and how, in enacting the ADA, Congress invoked its power not only under the Fourteenth Amendment but also under the Commerce Clause. Second, the protections available under the ADA and the Fourteenth Amendment vary in material respect, because they require different showings, analysis, and standards of proof. Accordingly, the court found that Congress did not intend the ADA to be the exclusive mechanism for addressing disability discrimination.
In conclusion, the Sixth Circuit ruled that there was no congressional intent to abandon the rights and remedies provided for disabled individuals by the Fourteenth Amendment’s Equal Protection Clause in enacting the ADA. Thus, a plaintiff asserting an ADA violation may also bring an Equal Protection claim for disability discrimination under §1983.
Pension Benefit Guar. Corp. v. Findlay Indus., Inc., et al., 902 F.3d 597 (6th Cir. 2018).
In Pension Benefit Guar. Corp. v. Findlay Indus., Inc., et al., 902 F.3d 597 (6th Cir. 2018), the Pension Benefit Guaranty Corporation (“PBGC”) brought action under the Employment Retirement Income Security Act (“ERISA”) to collect the defendant Findlay’s underfunded pension liabilities following its bankruptcy. When Findlay could not meet its obligations, the PBGC asked the court (1) to view the trust formed by Findlay’s founder as a under-common-control “trade or business” and (2) to apply the federal-common-law doctrine of successor liability to hold the son of Findlay’s founder liable for some of Findlay’s obligations. The district court denied the PBGC’s requests, so it appealed to the Sixth Circuit.
1. “Trade or Business” for ERISA Purposes
In examining the PBGC’s first contention that the trust formed by Findlay’s founder is Findlay’s commonly-controlled “trade or business,” the Sixth Circuit set out the specific facts surrounding the trust. In 1986, Findlay transferred two properties to its founder and owner. Less than a month later, Findlay’s founder conveyed the properties to an irrevocable trust, which was to provide for his sisters for life and then to be distributed equally to his two sons, one of whom was the trustee. For 16 years until the day Findlay went out of business, the trust leased the properties to Findlay. After all life beneficiaries of the trust had died, the trust was split between two sons of Findlay’s founder, who were the majority shareholders and controlled Findlay in its final years. Based on these facts, the PBGC argued that the trust was jointly and severally liable for Findlay’s pension liabilities because it was a commonly controlled “trade or business.”
The Sixth Circuit agreed with the PBGC. In so doing, the court ruled categorically that any entity that leases property to a commonly controlled company was a “trade or business” for ERISA purposes. First, the court found that the district court erred in applying the Supreme Court’s fact-intensive test in Comm’r v. Groetzinger, 480 U.S. 23 (1987). The court reasoned that Goertzinger’s treatment of the terms “trade” or “business” was narrow and specific to tax law. In addition, Groertzinger’s test requires courts to determine the primary purpose of an activity to ascertain a “trade or business,” which, if applied in ERISA context, would create dangerous incentives. Specifically, entities would be incentivized to engage in reorganization while claiming a different primary purpose to escape underfunded-pension liability. Moreover, according to the court, applying Groetzinger test in ERISA cases would not serve the legislative purpose. What is important for ERISA purposes is whether the assets are effectively the employer’s and thus should be used to pay what it had promised its employee, not whether the employer’s primary motive in dissipating its assets is to escape liability or otherwise.
After finding that Groetzinger’s fact-intensive test was inapplicable, the Sixth Circuit turned to the purpose and structure of ERISA to determine the meaning of “trade or business.” The court found that ERISA’s structure demonstrated that the common control provision was designed to prevent employers from evading the obligations promised to their employees by operating through separate entities. Per the court, such a purpose could only be fulfilled with a categorical test, which would stop leases between commonly controlled entities as a way of shielding those entities from ERISA liability. Specifically, in the instant case, by conveying the land to the trust, Findlay guaranteed that it could still use and control the properties. Meanwhile, because Findlay did not technically own the properties, they were not included as Findlay’s assets that were subject to its ERISA obligations. In other words, Findlay enjoyed the benefits of the land, but did not take any of the risk or responsibility that came with its ownership. On the other hand, the trust was completely shielded from any of the risk of an arms-length leasing arrangement with a lessee that was not under common control. The situations like the one at issue, according to the court, were precisely the types that the common-control rule aimed to prevent. In sum, the court concluded that leasing to a commonly controlled entity, like in the instant case, was categorically a “trade or business” for ERISA purposes, and thus the trust created by Findlay’s founder may be reached by the PBGC to satisfy a part of Findlay’s underfunded-pension liabilities.
2. Application of the Federal-Common-Law Doctrine of Successor Liability in ERISA
In examining the PBGC’s second contention, the Sixth Circuit set out the pertinent facts surrounding the transfer of Findlay’s assets. Specifically, after Findlay had gone out of business in 2009, two companies owned by a son of Findlay’s founder purchased all of its assets, without assuming any of Findlay’s $30 million underfunded-pension liabilities, through a series of transactions totaling $3.4 million. For the next four and a half years, the new companies generated profits totaling $12 million using Findlay’s former assets, employing Findlay’s former employees, making Findlay’s former products, and selling to Findlay’s biggest customers. Based on these facts, the PBGC argued that the federal common law’s treatment of successor liability was applicable to hold the son and his company accountable for Findlay’s liability.
The Sixth Circuit agreed with the PBGC. Per the court, the creation of federal-common-law successor liability was essential to promote ERISA fundamental policies. ERISA aimed to protect the interests of the participating employees, of which a fundamental premise was the PBGC’s power to enforce employers’ promises to their employees. To fulfill its functions in the scheme of ERISA, the PBGC must be able to keep its payout minimum by holding employers liable for their promises to the employees. Thus, the creation of the equitable doctrine of successor liability was appropriate as it promoted ERISA’s fundamental policy of the PBGC’s enforcement power. Indeed, because ERISA did not expressly provide for the enforcement of situations like in this case, the court said that ERISA’s fundamental policies would be frustrated absent successor liability: the promises Findlay made to its employees would not be kept, while the PBGC would be left paying millions of dollars of underfunded-pension liabilities. Finally, the court found that applying federal common law would be most appropriate. This is because Congress intended to establish employee benefit plan regulation as an exclusive federal concern and there had already been a body of federal common law applying successor liability in employment and labor cases. In sum, the court held that the federal-common-law doctrine of successor liability applied in the instant case, so the PBGC could look to the new companies to satisfy a part of Findlay’s underfunded-pension liabilities.
Submitted by:
Jennifer L. Sabourin
Miller, Canfield, Paddock & Stone, P.L.C.
150 W. Jefferson, Suite 2500
Detroit, Michigan 48226
sabourin@millercanfield.com
https://www.millercanfield.com/JenniferSabourin
Eleventh Circuit
Smelter v. Southern Home Care Services Inc., __F.3d __, 2018 WL 4560684 (11th Cir. Sept. 24, 2018).
Plaintiff Smelter worked for two months as a Customer Service Supervisor for a home health co. in Georgia before her employment was terminated during her probationary period. She was the sole black person working in the office. She allegedly heard co-workers making racist comments, some of which were directed at her. On her last day a co-worker allegedly called her a “dumb black n—–” during an argument. Smelter claimed she was fired for reporting this epithet along with her co-workers’ other racist comments to her direct supervisor. The supervisor claimed she did not report any comments. Smelter filed suit claiming discriminatory termination, hostile work environment, and retaliation under Title VII and 42 U.S.C. § 1981. The trial court granted summary judgment.
The Eleventh Circuit reversed the grant of summary judgment on the hostile work environment claim, and affirmed on the remaining claims because she provided insufficient evidence of pretext in response to employer’s legitimate, nondiscriminatory reasons for termination.
Smelter did not report alleged harassment until the last day of employment, but she claims a supervisor overheard some of the remarks. Though she did not report the alleged harassment earlier, the Court found that her testimony about the impact the harassment had on her could lead a reasonable jury to conclude she subjectively perceived the co-workers’ conduct as hostile and abusive. As to the objective inquiry, eight examples of racist remarks made in Plaintiff’s presence during her two months of employment was harassment that was pervasive. A co-worker’s one-time use of an epithet to insult her in the midst of an argument, along with alleged daily racist comments by co-workers in the two months, are sufficiently severe for a hostile work environment, and grant of summary judgment reversed. Providing little to no evidence of the impact the harassment had on her job performance did not require the dismissal of her claim.
As to the discriminatory termination and retaliation claims, Plaintiff’s failure to rebut even one nondiscriminatory reason was sufficient to warrant summary judgment. Despite apparent tension between “nearly identical” and “the same or similar conduct” standards for comparators, it made no difference in this case since Smelter’s comparator evidence was insufficient.
Gogel v. Kia Motors Manufacturing of Georgia, Inc., __ F.3d __, 2018 WL 4558300 (11th Cir. Sept. 24, 2018).
Title VII protects H.R. employees when they support other employees in asserting Title VII rights, and the manner of support is reasonable. The test in this Circuit has always sought to balance achieving the purposes of Title VII with avoiding workplace disruption. Regarding H.R. employees, sometimes the balance requires accepting an employee’s opposition to discrimination as protected activity even where the employee has stepped outside the bounds of work rules to do so. Here, the Court found that Gogel tried to use Kia’s internal framework, and her deviation from it furthered the purposes of Title VII “without impacting Kia’s illusory efforts at voluntary compliance.” The Court reversed the grant of summary judgment on the retaliation claim.
The Court affirmed summary judgment on the gender and national origin discriminatory termination claims. Though there was evidence Gogel suffered discrimination based on her gender and national origin, there is no evidence that discrimination formed a basis for termination. The record indicated that Kia fired Gogel for assisting a co-worker with her charge.
The dissent asserted it is hard to argue that a high-ranking manager whose job duties include working to resolve employee disputes without litigation can be effective in that position if she instead solicits subordinates to sue. The dissent argued that the act of soliciting another employee to file a claim – when that action violates an essential duty of an employee’s job – is per se unreasonable.
Submitted By:
Patricia T. Paul
Attorney at Law
OLIVER MANER LLP
218 W. State Street
P. O. Box 10186
Savannah, Georgia 31412
(912) 236-3311
(912) 429-3639 (cell)
ppaul@olivermaner.com
www.olivermaner.com
D.C. Circuit
Teachers College, Columbia University v. National Labor Relations Board, 902 F.3d 296 (D.C. Cir. 2018)
In Teachers College, Columbia University v. National Labor Relations Board, the NLRB found that an employer committed unfair labor practice by refusing to comply with a union’s request for information about non-bargaining unit employees where that request was relevant to the union’s responsibilities. In the case, the union had long suspected that the employer had violated the applicable CBA by transferring work that was supposed to be reserved for bargaining unit members to non-unit employees. The union filed a grievance on this matter, and requested a list of all non-unit employees. Later, the union focused its request by having its members canvass the employer’s departments to identify 34 non-unit positions that it believed were performing unit work. The union presented these suspicions to the employer in chart format, providing information about each position and the basis for the union’s belief, but the employer continued to refuse to provide information.
The court affirmed the NLRB’s finding that the employer’s refusal to provide information was an unfair labor practice. The court noted that employers are subject to a duty to provide requested information that will enable the union to negotiate effectively and perform its other duties. The court further found that the union had met its low burden to show that the requested information was relevant. While the information was not presumed relevant because it concerned non-bargaining unit employees, the court noted that the threshold of relevance is relatively low, requiring only that the union show based on objective evidence that the information is of probable or potential relevance to some pending issue. The court found that the chart of positions provided by the union more than met this threshold.
Submitted by:
Jack Blum
The Law Firm of Paley Rothman
4800 Hampden Lane
6th Floor
Bethesda, MD 20814-2930
jblum@paleyrothman.com
(301) 968-3415