August

NOTICE AND AGENDA FOR

AZELA Membership/CLE MEETING

Friday, August 25, 2017, 12 Noon to 1:30pm

 

 

Location: Jaburg & Wilk, P.C. Conference Room

20th Floor, at 3200 North Central Avenue in Phoenix.  Free (validated) parking is available in the parking structure west of the office building.  (Kraig Marton, Jeff Silence, and David Farren are our hosts.)  There is no cost to attend.

 

Feel free to bring your lunch and beverage.

1.5 hour CLE certificates will be given to all in attendance

 in person or telephonically (see pages 10-11 infra)

 

(The AZELA Board meeting follows at 1:35pm;

the Board meeting agenda is provided infra)

 

This Notice and Agenda prepared and written by Roger A. McKee rogmckee@cox.net

Chair, AZELA CLE/Membership Meetings

 

To Attend Telephonically: Members who attend telephonically will be sent CLE certificates upon request to Roger McKee, rogmckee@cox.net.  To attend by phone, all you have to do is pick up your phone and follow these simple instructions.

(1)  Dial (605) 472-5814

(2)  Enter the meeting ID number: 574-193-032 (followed by the # key)

(3)  Put your phones on mute unless you are speaking.

 

If you run into any problems, dial the Jaburg & Wilk office number (602) 248-1000 and ask for Jeff Silence or Ash (the Jaburg & Wilk I.T. person).

 

 

 

 

Recent significant cases

 

Ninth Circuit

 

Guidiville Rancheria of California v. Upstream Point Molate LLC, 2017 WL 3327828 (8-4-17):

“Under the “doctrine of prevention,” if a contracting party interferes with the performance of a condition precedent in a way that the parties did not reasonably contemplate, then the interference is a breach of the implied covenant of good faith and fair dealing, and the interfering party “cannot in any way take advantage of that failure [of the condition precedent].” 13 Williston on Contracts § 39:3 (4th ed.); see also City of Hollister v. Monterey Ins. Co., 81 Cal. Rptr. 3d 72, 100 (Cal. Ct. App. 2008), as modified on denial of reh’g (Aug. 28, 2008). “The implied covenant of good faith and fair dealing requires a promisor to reasonably facilitate the occurrence of a condition precedent by … refraining from conduct which would prevent or hinder the occurrence of the condition ….” Westerbeke Corp. v. Daihatsu Motor Co., 304 F.3d 200, 212 (2d Cir. 2002) (quoting Chuff, Lippman & Co. v. Apogee Fin. Group, Inc., 807 F. Supp. 1007, 1022 (S.D.N.Y. 1992)).”

 

McKeenChaplin v. Provident Savings Bank, FSB, 862 F. 3d 847 (7-5-17): Mortgage underwriters are not exempt from FLSA coverage under the “administrative employee” exception, citing 29 CFR 541.200 and 29 CFR 541.201. Mortgage underwriters’ primary job duty, which was analyzing customers’ mortgage loan applications and determining their creditworthiness in order to decide whether bank-employer would approve the loan, did not relate to bank-employer’s management or general business operations, so that the administrative employee exemption to the FLSA’s overtime compensation requirement did not apply, and the underwriters were entitled to overtime compensation; underwriters used set guidelines and criteria to assess whether loans fell within range of acceptable risk as determined by bank-employer, which did not involve underwriters assessing or determining bank-employer’s business interests, and underwriters did not perform work involving future strategy or direction of the bank’s business or relating to bank’s overall efficiency or mode of operation.

(reviewed by Denise Blommel)

 

Capili v. The Finish Line, Inc., 2017 WL 2839504 (7-3-17): District Court denied employer’s motion to compel arbitration of employee’ claim, and Ninth Circuit affirmed, after agreeing that two of the arbitration terms were substantively unconscionable:

(1) The district court properly determined that the cost-sharing provision was substantively unconscionable. The provision required Capili, a retail employee making $15 per hour, to pay up to $10,000 at the outset of arbitration, not including the fees and costs for legal representation. Much like Chavarria, the cost-sharing provision here imposes substantial non-recoverable costs on low-level employees just to get in the door, effectively foreclosing vindication of employees’ rights. 733 F.3d at 926–27.

(2)  The district court properly determined that the cost-sharing provision was substantively unconscionable. The provision required Capili, a retail employee making $15 per hour, to pay up to $10,000 at the outset of arbitration, not including the fees and costs for legal representation. Much like Chavarria, the cost-sharing provision here imposes substantial non-recoverable costs on low-level employees just to get in the door, effectively foreclosing vindication of employees’ rights. 733 F.3d at 926–27.

 

The employer argued that, rather than deny the motion to compel arbitration, the Court should have stricken the unconscionable provisions, and ordered arbitration.  The Ninth Circuit said:

“The district court did not abuse its discretion by declining to sever the unconscionable portions of the Arbitration Agreement. See Bridge Fund Capital Corp. v. Fastbucks Franchise Corp., 622 F.3d 996, 1005–06 (9th Cir. 2010); Cal. Civ. Code § 1670.5(a). Although the Federal Arbitration Act articulates a preference for the enforcement of arbitration agreements, employers may not stack the deck unconscionably in their favor to discourage claims, then force courts “to assume the role of contract author rather than interpreter.” Ingle v. Circuit City Stores, Inc., 328 F.3d 1165, 1180 (9th Cir. 2003). Where unconscionability permeates the entire agreement, California courts may refuse to sever unconscionable provisions. See Poublon, 846 F.3d at 1272.”

 

Ortega v. J.B. Hunt Transport, Inc., 2017 WL 3225709 (7-31-17): Federal laws which closely regulate certain industries and their rates or operations do not implicitly pre-empt or trump the FLSA or state wage laws.

 

Robinson v. County of Los Angeles, 2017 WL 2781586 (6-27-17): footnote 1:

“Although the district court should have ruled on Robinson’s evidentiary objections before granting summary judgment, that error was harmless. Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010); Sanchez v. Aerovias De Mexico, S.A. De C.V., 590 F.3d 1027, 1029 (9th Cir. 2010) (acknowledging that a district court must rule on evidentiary objections material to its summary judgment order, but noting this is subject to harmless error analysis).”

 

 

Bykov v. Rosen, 2017 WL 2814497(6-27-17):

“The district court did not abuse its discretion by taking judicial notice of the Washington State court proceedings. Fed. R. Evid. 201(b)(2); United States v. Woods, 335 F.3d 993, 1000–01 (9th Cir. 2003) (setting forth standard of review); U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (a court “may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.”

-and-

Kalani v. Starbucks Coffee Company, 2017 WL 2813864 (6-28-17):

“We take judicial notice, pursuant to Rule 201(b) of the Federal Rules of Evidence, of nine exhibits proffered by Starbucks Company, including various Google maps depicting the locations of Starbucks stores in the vicinity of locations Mr. Kalani planned to visit. See, e.g., McCormack v. Hiedeman, 694 F.3d 1004, 1008 n.1 (9th Cir. 2012) (taking judicial notice of a Google map and satellite image as a source for determining the approximate distance from Idaho to Utah).”

 

Merrick v. Hilton Worldwide, Inc., 2017 WL 3496030 (8-16-17): Merrick was employed as the Director of Property Operations at the Hilton La Jolla Torrey Pines Hotel, having received multiple promotion.  He was terminated in a RIF when he was 60 years old, after having worked for Hilton for 19 years. When he was fired, he was the second highest paid employee at the Hotel. He brought a claim for age discrimination. The District Court granted summary judgment for the employer, and the Ninth Circuit affirmed. The Court first stated the elements of proof for an age discrimination claim based upon a termination:

 

(1) “To establish a prima facie case of age discrimination, Merrick must show he was “(1) at least forty years old, (2) performing his job satisfactorily, (3) discharged, and (4) either replaced by substantially younger employees with equal or inferior qualifications or discharged under circumstances otherwise ‘giving rise to an inference of discrimination.’”

 

(2) This Court has consistently recognized that employees terminated during a RIF often are not replaced. Wallis v. J.R. Simplot Co., 26 F.3d 885, 891 (9th Cir. 1994). Instead of showing proof of replacement, a plaintiff may establish a prima facie case of discrimination by showing “through circumstantial, statistical, or direct evidence that the discharge occurred under circumstances giving rise to an inference of age discrimination.” Id. (quoting Rose v. Wells Fargo & Co., 902 F.2d 1417, 1421 (9th Cir. 1990)). Such an inference may be established by demonstrating that an “employer had a continuing need for [the plaintiff’s] skills and services in that [his] various duties were still being performed.” Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2000) (quoting Wallis, 26 F.3d at 891). Hilton does not contend any of Merrick’s duties were eliminated following the RIF or that it no longer had a need for his skills;

 

(3)  Therefore Merrick had presented a prima facie age discrimination claim, and the burden shifted to Hilton to show that it’s stated reason, a RIF, was not a pretext for age discrimination. The Ninth Circuit then held that the following evidence supported Hilton’s defense of non-age based RIF:

(a) Hilton presented evidence that it had undergone a series of RIFs because of declining revenues.

(b) Eliminating Merrick’s position would achieve a significant cost reduction.

(c) Other Hotel departments were already understaffed because of prior RIFs

(d) The fact that the decisionmakers gave considered “guest interactions” as a factor was not evidence of subjectiveness or bias, but instead within the realm of business judgment.

(e) While Hilton did deviate from its established RIF Guidelines, the deviation was minor and not shown to have harmed Merrick, and was insufficient to rebut the employer’s stated reason for the RIF was a pretext.

 

Schagene v. Mabus, 2017 WL 3601730 (8-22-17): Plaintiff filed Title VII hostile work environment claim against her former employer, seeking, inter alia, emotional distress damages, based upon an alleged course of conduct that continued from 2004 through 2011.  Over objection, the District Court allowed the employer to introduce evidence that she had some serious psychiatric condition that caused her to lose custody of her children in 1997-1998, which was very traumatic to her at the time and the source of continuing emotional distress, on the grounds that such past matters were likely a significant cause of whatever emotional distress or anguish the plaintiff was suffering during her employment, and that her psychiatric condition then could be relevant to her credibility as a witness. The jury returned a defense verdict, but on appeal, the Ninth Circuit reversed, finding that such evidence was both irrelevant and prejudicial.

 

Neravetla v. Virginia Mason Medical Center, 2017 WL 3327850 (8-4-17):

Plaintiff physician was terminated from residency program when he refused to comply with an order referring him to a physicians’ health program for an examination after his superiors had observed unsatisfactory performance and behavior. He filed claims under the ADA (alleging his employer perceived him to be mentally ill) and for defamation (based upon the referral for the examination.  The Ninth Circuit affirmed summary judgment for the employer because (1) the ADA expressly permits an employer to require a medical examination of an employee “if such examination or inquiry is shown to be job-related and consistent with business necessity”, 42 USC 12112(d)(4)(A), and (2) because the Plaintiff failed to identify a specific statement that was defamatory that was “published”.

(reviewed by Suzanne Dohrer)

 

Quade v. Arizona Board of Regents, 2017 WL 2814446 (6-28-17) (Paul Banales and Joseph Palmisano for Plaintiff, AAGs Michael Goodwin and Ann Hobart for ABOR): (bad lawyering case):

Facts: Quade, an ASU student, was charged and found in violation of the ASU student code of conduct for sexual misconduct, underage drinking, and marijuana use. On the basis of the alleged violations, Dr. Michael Mader, associate dean of students, suspended Quade from ASU for approximately twelve months. After learning of the University’s decision to impose a sanction of suspension, Quade retained counsel and appealed the sanction by requesting a hearing before a university hearing board. Quade and his counsel arrived at the hearing scheduled on March 4, 2014. Upon arrival, Professor Gregory Castle informed Quade’s counsel that only one person could speak at the hearing (Quade or his counsel), and that Quade’s witness would not be allowed to testify because he no longer worked at ASU. Quade alleged that he was denied his right to counsel, his right to testify, his right to present evidence on his own behalf, and that “[t]here was no hearing.”

A final decision was issued on April 4, 2014, adopting the university hearing board’s determination that Quade had abandoned his appeal and upholding the suspension issued by the dean of students. The determination stated that it was “the final administrative decision of the University” and informed Quade that he could seek judicial review of the decision under ARS 12-901 through 12-914. Quade did not seek judicial review of the final administrative decision in state court.  Instead he filed various federal and state law claims in the U.S. District Court, but did not include an appeal pursuant to ARS 12-901 et seq.

Holdings: The district court dismissed all claims against the Board and the university officials on the basis of (1) Eleventh Amendment immunity, (2) the state law claims against the individual defendants for failure to timely file a notice of claim under Arizona law, and (3) the federal claims were barred by res judicata/claim preclusion because the final administrative decision of ASU had become final once the time for the appeal of administrative decision pursuant to ARS 12-901 et seq. had elapsed. The Ninth Circuit affirmed the dismissal of the complaint.

(reviewed by Matthew Parker)

RAMc comment: From the facts in this decision, it appears that the student’s due process rights to counsel and to present evidence at his ASU hearing may have been violated, but those are issues that could and should have been presented to the Superior Court on review of the ASU decision, pursuant to ARS 12-901 et seq.

 

Myers v. Checksmart Financial, LLC, 2017 WL 2838477 (7-3-17): Plaintiff employee mid-identified her employee in her discrimination charge and in her complaint, and later sought to amend to identify the correct employer entity. District Court denied amendment and dismissed complaint, but Ninth Circuit reversed.  Where employee had reasonable belief that originally named Defendant was her actual employer and the actual employer had actual notice of her charge and later complaint, amendment should have been permitted and it would have “related back” to original complaint under FRCP Rule 15(c)(1)(C).

 

Capili v. The Finish Line, Inc., 2017 WL 2839504 (7-3-17): Affirming District Court denial of employer’s motion to compel arbitration after finding procedural and substantive unconscionability:

“The district court did not abuse its discretion by declining to sever the unconscionable portions of the Arbitration Agreement. See Bridge Fund Capital Corp. v. Fastbucks Franchise Corp., 622 F.3d 996, 1005–06 (9th Cir. 2010); Cal. Civ. Code § 1670.5(a). Although the Federal Arbitration Act articulates a preference for the enforcement of arbitration agreements, employers may not stack the deck unconscionably in their favor to discourage claims, then force courts “to assume the role of contract author rather than interpreter.” Ingle v. Circuit City Stores, Inc., 328 F.3d 1165, 1180 (9th Cir. 2003). Where unconscionability permeates the entire agreement, California courts may refuse to sever unconscionable provisions. See Poublon, 846 F.3d at 1272. Based on the record, the district court did not abuse its discretion by finding that severance would not serve the interests of justice.”

 

United States of America ex rel. Campie v. Gilead Sciences, Inc., 862 F. 3d 890 (7-7-17): This decision sets forth the elements of proof for a claim of employer retaliation under the False Claims Act (“FCA”), 31 USC 3730(h) and what satisfies the pleading requirements to withstand a FRCP Rule 12(b)(6) motion, and held that the heightened pleading requirements of Rule 9(b) do not apply to such claims.  To state a claim for retaliation, a plaintiff must demonstrate that: (1) he “engaged in activity protected under the statute”; (2) the employer knew the plaintiff engaged in a protected activity; and (3) the employer discriminated against the plaintiff “because he … engaged in protected activity.”  In this case, the Relator/Plaintiff stated a claim for retaliation, in violation of False Claims Act (“FCA”), 31 USC 3730(h) against his former employer, a pharmaceutical drug company, by alleging that as a senior director of global quality assurance at the company he had an objectively reasonable, good faith belief that company was possibly committing fraud against the government by obtaining reimbursement for its mislabeled and adulterated HIV drugs, that he made clear to the company that he expected it to stop its deceptive practices and threatened to inform the Food and Drug Administration (FDA) if it continued its fraudulent conduct, and that as a result, his employment was terminated soon thereafter.  Allegations of causation are sufficient at the pleading stage of a retaliation claim under FCA if plaintiff simply indicates he believes defendant terminated him because of his investigation into the practices specified in the complaint.  The Ninth Circuit reversed the FRCP Rule 12(b)(6) dismissal of the complaint.

 

Fuller v. Idaho Dept. of Corrections, 2017 WL 3223005 (7-31-17): This public employee sex discrimination case is 27 pages long and includes a spirited dissent. It arises from what began as a concealed romantic relationship among two Idaho Dept. of Corrections employees, which later became public when the relationship “went south” and the female employee accused the male employee of sexual assaults (occurring off the job).  Her claims arise from the IDOC response to her complaints of “hostile work environment” and sex discrimination as the two continued to work together at IDOC after she reported the assaults. [This case includes the difficult question of fact as to whether a consensual sexual relationship later became forcible.] The female Plaintiff filed claims Title VII claims of hostile work environment and sex discrimination against the IDOC, and 42 USC 1983 claims of equal protection (gender) against two of her supervisors. The District Court granted summary judgment to the IDOC and the supervisors, but the Ninth Circuit reversed.  Holdings:

  • Genuine issue of material fact existed as to whether alleged actions of female Idaho Department of Corrections (IDOC) employee’s male supervisors in effectively punishing employee for taking time off after she reported rape by male-coworker, while both vocally and financially supporting co-worker, were sufficiently severe or pervasive to alter conditions of workplace, precluding summary judgment on employee’s Title VII hostile work environment claim based on sex discrimination against IDOC.
  • IDOC knowledge of previous sexual harassment complaints against male employee, who raped female employee, while alone insufficient to create a hostile work environment based on sex discrimination, was relevant and probative of IDOC’s general attitude of disrespect toward its female employees, in female employee’s VII hostile work environment action based on sex discrimination.
  • Employer’s reaction to a single serious episode may form the basis for Title VII hostile work environment claim.
  • When an employer acts in a way that effectively condones or ratifies a rape or sexual assault and its effects, a jury may reasonably infer that the employer itself is discriminating because of sex, in violation of Title VII.
  • If an employer, acting in the workplace, discriminates against a female rape victim in the conditions of her employment by condoning her rape and its effects, that employer should not escape Title VII liability for its discrimination merely because a rapist employee conducted his assault off the premises.

There is also an interesting debate between the majority and the dissent over what weight to give undisputed facts alleged by the employer in the context of accepting all supported allegations of the employee as true.

On this same subject, compare Vasquez v. Empress Ambulance Service, Inc., 835 F. 3d 267 (2nd Cir., 2016): When two rank-and-file employees each claimed the other had engaged in unwelcome romantic advances, the employer may have “cat’s paw” liability when the decision maker who fired the Plaintiff male for sexual harassment was negligent in accepting the complaining female’s version of what occurred. When an employer in effect adopts an employee’s unlawful animus by acting negligently with respect to the information provided by the employee, and thereby affords that biased employee an outsize role in its own employment decision, the employee’s motivation be imputed to the employer and used to support a claim under Title VII; put simply, an employer can still “just get it wrong” without incurring liability under Title VII, but it cannot “get it wrong” without recourse if in doing so it negligently allows itself to be used as conduit for even a low-level employee’s discriminatory or retaliatory prejudice. (reviewed by Emily Johnson))

 

Moonin v. Tice, 2017 WL 3598083 (8-22-17): The Ninth Circuit held that a policy imposed by a Nevada Highway Patrol Major Tice violated the First Amendment free speech rights of his subordinates to speak out about problems with the Patrol’s canine unit program which had become a matter of public concern.  The policy stated, in part:

 

“Effective immediately, except for allied [law enforcement] agencies and [High Intensity Drug Trafficking Area] representatives, there will be NO direct contact between K9 handlers, or line employees[,] with ANY non-departmental and non-law enforcement entity or persons to discussing the Nevada Highway Patrol K9 program or interdiction program, or direct and indirect organization therein. All communication with ANY non-departmental and non-law enforcement entity or persons regarding the Nevada Highway Patrol K9 program or interdiction program, or direct and indirect organization relating to these programs WILL be expressly forwarded for approval to your chain-of-command. Communication will be accomplished by the appropriate manager/commander if deemed appropriate. Any violation of this edict will be considered insubordination and will be dealt with appropriately.”

 

The Court found that the policy covered speech undertaken outside the officers’ official duties and on matters of public concern. The case is significant because the Court did not find that the rule of Garcetti v. Ceballos, 547 U.S. 410 (2006) limits First Amendment protection to statements the public employee makes as a “citizen” and not as part of their official duties:

 

“Even if some speech implicated by Tice’s email edict might fall within the troopers’ official duties, much of the potentially affected speech does not. Tice’s policy, drafted very broadly, could reasonably be understood to forbid, on penalty of employment discipline, speech made by K9 troopers in their capacities as citizens. Tice’s email permits “NO direct contact between K9 handlers[ ] or line employees with ANY non-departmental and non-law enforcement entity or persons to discussing the Nevada Highway Patrol K9 program or interdiction program, or direct and indirect organization therein.” On a straightforward reading of this sweeping language, it is not confined to “official agency business,” compare Milwaukee Deputy Sheriff’s Ass’n, 574 F.3d at 383, nor to information that would harm pending investigations or expose sources and methods, compare Baumann v. District of Columbia, 795 F.3d 209, 217 (D.C. Cir. 2015) (upholding a policy prohibiting disclosure of “confidential information that may jeopardize the successful conclusion of an investigation”). The policy as enunciated encompasses employees’ opinions about the program. It also reaches legitimate “whistleblower” complaints about the program. And, although the policy affects only speech relating to the K9 or drug interdiction programs, we may not assume that the troopers speak as employees rather than citizens on every occasion in which they discuss information learned or opinions developed while on the job. See Lane, 134 S.Ct. at 2379. “[S]peech by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment.” Id. Absent any qualification regarding what types of information or opinions regarding the K9 program are subject to the policy, we cannot say that Tice’s edict affects only speech made pursuant to the affected troopers’ official duties.

 

The Court held that Tice had failed to show any past disruptions sufficient to justify the expansive policy, nor did he demonstrate that any harms anticipated were real, not merely conjectural. The panel further held that it was clearly established in 2011, when Tice set the policy, that such a broad restriction on employee speech could not survive First Amendment scrutiny. Accordingly, Tice was not entitled to qualified immunity. The Court affirmed the district court’s grant of partial summary judgment to appellant on the First Amendment claim after concluding that the relevant facts were not in dispute and the legal issues were identical to those raised in the qualified immunity analysis.

 

U.S. District Court for Arizona

 

Watson v. County of Yavapai, 2017 WL 914608, case # 3:14 CV 8228 PCT NVW (3-8-17) (Jessica Miller and Michael Zoldan for Plaintiff, Georgia Staton and Gordon Lewis for Defendant) (Bad Lawyering case): Plaintiff County employee was terminated after a series of disciplinary actions, the merits of which were undisputed.  She brought claims under the ADA and FMLA. After Judge Wake granted the employer’s motion for summary judgment on all claims, the County sought an award of attorney’s fees under the ADA attorney’s fees statute, 42 USC 12205.  The Court applied the SCOTUS Christiansburg Garment Co. v. EEOC case and its progeny, and held that the Plaintiff should be liable for the County’s attorney’s fees:

Watson received repeated written notice of her deficient job performance prior to being fired. She received numerous reprimands for missing work functions, questioning co-workers about the length of their bathroom breaks, spending work time penning lengthy diatribes, refusing to talk during meetings with her supervisor, and more. She knew she received these reprimands at the litigation’s outset. This is not a case where a plaintiff began with a plausible theory only to have her claim dismissed after discovery turned up insufficient evidence. Watson received disability accommodations for nine years, received numerous documented reprimands, and knew what conduct of hers triggered them, whether or not she believed the reprimands were warranted. Then upon being fired, she alleged that she was terminated because she asserted her rights under the ADA and FMLA. An employer is not immune from future discrimination claims simply by virtue of having provided accommodations in the past. But such a history has strong inferential force that the employer did not engage in disability discrimination. Watson brought this suit as a naked allegation, lacking an iota of even circumstantial evidence to make it plausible.

Watson’s theory that she was actually fired for seeking disability accommodations despite a cascade of reprimands, or as retaliation for protected complaints, was both “unreasonable” and “frivolous,” placing it squarely within the Christiansburg standard regardless of whether it was brought in subjective bad faith.

Fee awards against plaintiffs will be rare and few cases will require close inquiry. In most failed cases, the minimum substantiality of the allegations will be obvious. But this motion easily gets past that filter. As discussed above and in the summary judgment order, Watson’s assertions lacked any objective basis from their beginning as a summary accusation far into her insubordination, discipline, corrections for workplace disruption, contumacious written attacks on her supervisor, and refusal of directions. And that was after nine years of the County’s perfect compliance with her ADA and FMLA requests. A fee award is warranted for objective unreasonableness and lack of foundation, without need to inquire further into bad faith.

(reviewed by Kevin Koelbel)

 

Arizona Appellate Courts

 

Lipsky v. Safety National Casualty Corporation, 2017 WL 443525, Ct. Apps. Div. One case # 1 CA-CV 15-37 (2-2-17) (Michael Doyle and Erin Faulhaber for Plaintiff, Melanie Pate for Defendant): Plaintiff filed, inter alia, claim for wrongful termination for having filed a workers compensation claim, ARS 23-1501(A)(3)(c)(iii).  Two of the holdings in this case are in the May 19, 2017 AZELA CLE Agenda. Another very useful one is that tort damages include harm to a persons’ credit reputation or score, in paragraph 42.

 

Security Alarm Financing Enterprises, L.P. v. Fuller, 242 Ariz. 512, 398 P. 3d 578 (App., 2017) (William Richards for employer, Monica Limon-Wynn for employees who were sued by employer): Former employer brought action against former employees and their new employer, alleging breach of contract, misappropriation of trade secrets, unfair competition, and tortious interference with business expectancies. The Superior Court, denied the former employees’ motion to dismiss and to compel arbitration under the Federal Arbitration Act (FAA), holding that they had waived their right to enforce the arbitration agreement by not raising arbitration seeking to compel litigation until 30 days after they had filed their answer.  Exercising special action jurisdiction, the Court of Appeals reversed, applying Ninth Circuit law, and held that the former employees did not waive their right to compel arbitration of former employer’s claims against them:

“. . . the Ninth Circuit Court of Appeals has held that waiver of a right to arbitration under 9 U.S.C. § 3 requires a showing of “(1) knowledge of an existing right to compel arbitration; (2) acts inconsistent with that existing right; and (3) prejudice to the party opposing arbitration resulting from such inconsistent acts.” Richards, 744 F.3d at 1074.”

(reviewed by Monica Limon-Wynn)

 

Yahweh v. City of Phoenix, 2017 WL 2952236, 769 Ariz. Adv. Rep. 16 (Ariz. App., 7-11-17) (Bad lawyering case?) Plaintiff was a Phoenix Police detective whose name was put on the “Brady (v. Maryland, 373 U.S. 83 [1963] list” after the PPD published a Public Standards Bureau Report which Yahweh alleged had defamatory statements about him.  The Superior Court dismissed his lawsuit because it found that he had failed to strictly comply with the notice of claims statute, ARS 12-821.01, which requires, inter alia, that such a notice must “contain a specific amount for which the claim can be settled and the facts supporting that amount”. His timely and duly served notice of claim stated in pertinent part:

“The Claimant will be bringing legal action against the Phoenix Police Department and the City of Phoenix seeking damages for 1.5 million dollars, as the Claimant planned to earn for the next ten years and these were his projected earnings. He is suing for defamation of his character in the public, as the PSB report is a public record, and among his peers, and it has affected his earning potential to obtain employment. He will also be bringing action for violations of the Family Medical Leave Act. In order to obtain an agreeable resolution to this matter, contact his lawyer Jess Lorona Esq., promptly.”

The Superior Court granted the City’s ARCP Rule 12(b)(6) motion to dismiss and the Court of Appeals affirmed the dismissal, stating:

“¶ 8 The claim is barred if the claimant fails to present a valid settlement offer to the public entity he or she wishes to sue. Id. “An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.” Restatement (Second) of Contracts § 24 (1981). The amount a plaintiff will accept to settle litigation is rarely based on questions of liability alone, but includes factors such as the cost of litigation and the anticipated trial verdict. See Deer Valley Unified Sch. Dist. No. 97, 214 Ariz. at 297, ¶ 14, 152 P.3d at 494 (citing State v. Brooks, 23 Ariz. App. 463, 467, 534 P.2d 271 (1975)). Simply reciting the amount a claimant will demand in a complaint is insufficient to satisfy § 12–821.01, because such a statement does not express a willingness to accept a specific sum in settlement.”

 

Useful cases from other jurisdictions

 

Whole Foods Market Group, Inc. v. NLRB, 2017 WL 2374843 (2nd Cir., 6-1-17): The Second Circuit affirms the NLRB Whole Foods decision (employer policy prohibiting all recording and videotaping by employees at the workplace has a “chilling effect” on worker exercise of NLRA right of “concerted action” and is therefore unlawful).

 

Egan v. Delaware River Port Authority, 851 F. 3d 263 (3rd Cir., 2017): For FMLA retaliation claims, the plaintiff’s burden of proof on causation is the mixed-motive test (motivating factor), not the higher “but for” burden, citing 29 C.F.R.  825.220(c).

 

Bordignon v. Eastern University, 2017 WL 1493282 (E.D. Pa., 4-26-17): Plaintiff relocated from Washington, D.C. to Philadelphia area after he accepted job offer from university.  After he arrived to begin work, he was fired before he could start.  Although he would have been an at-will employee, he stated a claim for promissory estoppel (Rest. 2d of Contracts sec. 90) for reliance damages, under PA law.

 

Castleberry v. STI Group, 2017 WL 2990160 (3rd Cir., 7-14-17): A single racial slur by a supervisor may be enough for a “hostile environment” claim:

“Under the correct “severe or pervasive” standard, the parties dispute whether the supervisor’s single use of the “n-word” is adequately “severe” and if one isolated incident is sufficient to state a claim under that standard. Although the resolution of that question is context-specific, it is clear that one such instance can suffice to state a claim. See Faragher, 524 U.S. at 788 (“isolated incidents” will amount to harassment if “extremely serious”) (quotations omitted); see also Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001) (per curium) (quotations omitted) (same); Jensen, 435 F.3d at 449 n.3 (same). However, a plaintiff must plead the incident to “be extreme to amount to a change in the terms and conditions of employment” for it to serve as the basis of a harassment claim. Faragher, 524 U.S. at 788. . . . . . . . . .

Indeed, other Circuits have similarly held that an extreme isolated act of discrimination can create a hostile work environment. See, e.g., Boyer-Liberto v. Fontainbleau Corp., 786 F.3d 264, 268 (4th Cir. 2015) (en banc) (“[W]e underscore the Supreme Court’s pronouncement in Faragher …, that an isolated incident of harassment, if extremely serious, can create a hostile work environment.”); Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993) (“Perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as [the “n-word”] by a supervisor in the presence of his subordinates … [that] impacts the work environment [ ] severely ….”) (quotation omitted); Adams v. Austal, U.S.A., LLC, 754 F.3d 1240, 1254 (11th Cir. 2014) (although a racially offensive carving on a workplace wall “was an isolated act, it was severe” enough that a “reasonable jury could find that [plaintiff’s] work environment was objectively hostile”);”

 

Liguria Foods, Inc. v. Griffith Laboratories, Inc., 2017 WL 976626 (N.D. Iowa, 3-13-17): A “keeper opinion” by Judge Mark W. Bennett condemning the practice of stuffing discovery responses with general and boilerplate objections, and suggesting that such conduct is sanctionable: “I know that I am not alone in my goal of eliminating “boilerplate” responses and other discovery abuses, because the goal is a worthy one.5 As one commentator observed:

Though boilerplate objections are relatively common in modern civil litigation, the legal community can take steps to curb their use. Attorneys and judges alike must recognize the costs these objections impose on the efficient administration of justice and on the legal profession. Only with such an understanding, and an attendant willingness to effectively penalize those who issue boilerplate objections, can their use be reduced. Hopefully, with an increased focus on preventing abusive discovery practices, including boilerplate objections, the legal profession can move toward fairer, more effective discovery practices.6

 

The Court also restated the rule in discovery that any ground not stated in a timely objection to an interrogatory or request for production is waived, unless the court excuses the failure.

See also Fischer v. Forrest, 2017 WL 773694 (S.D.N.Y., 2-28-17): After noting that the defendant included 17 “general objections” in its responses to the discovery requests, the Court quoted from the defendant’s objections to the first two document requests. The defendant objected “to the extent that [they are] overly broad and unduly burdensome, and not likely to lead to the discovery of relevant evidence” and that the requests seek “information already in Plaintiff’s possession.”  The Court held that those objections violate the amended rules in at least four respects. First, the general objections violate Rule 34(b)(2)(B)’s requirement that objections be stated with specificity and Rule 34(b)(2)(C)’s requirement to indicate if responsive material is being withheld because of a specific objection. Thus, “[g]eneral objections should rarely be used after December 1, 2015 unless each such objection applies to each document request.” Second, the defendant’s general objections based on “non-relevance” to the “subject matter of the litigation” and that the discovery is “not likely to lead to the discovery of relevant admissible evidence” are outdated. Because “discovery about ‘subject matter’ no longer is permitted” and because the “2015 amendments deleted” the “likely to lead to the discovery of relevant, admissible evidence” language, “lawyers need to remove [that language] from their jargon.” Third, objections that requests are “overly broad and unduly burdensome” are “meaningless boilerplate” because that “language tells the Court nothing.” Fourth, the discovery responses failed to indicate when the responsive material would be produced.

Blatt v. Cabela’s Retail, Inc., 2017 WL 2178123 (E.D. Pa., 5-18-17): Gender Dysphoria” (transsexuality) may be a “disability” under the ADA.

(reviewed by Suzanne Dohrer)

 

Delgado Echevarria v. Astra Zeneca Pharmaceutical LP, 856 F. 3d 119 (1 Cir., 2017): Plaintiff employee who had been out on disability leave requested and additional year of leave as an ADA accommodation.  Summary judgment for employer affirmed where employee failed to provide evidence that (1) employer could reasonably accommodate such a lengthy leave, and (2) that it was likely that employee could return to work after the year leave would have expired. (reviewed by Suzanne Dohrer)

 

Conclusion of Membership Meeting

 

(Pick up your CLE certificate or send e-mail to

rogmckee@cox.net to request it.)

 

2017 AZELA Calendar

 

All AZELA meetings and events listed are on Fridays.  Jaburg & Wilk has generously let us use their conference room again in 2017 for our Membership/CLE meetings on the dates listed below:

 

September 22

October 20

November 17

December 8

 

Time & Place of Monthly CLE Meetings: All meetings (except for the Annual Convention) start at 12 noon, at the Jaburg & Wilk conf. room.

 

CLE Credit Provided: All members in attendance will receive a CLE certificate for 1.5 hours of MCLE credit. If ethics subjects are covered, that time will be indicated on the CLE certificate.

 

 

 

NOTICE AND AGENDA FOR

AZELA BOARD MEETING, Friday, August 25, 2017 (CLE meeting at noon; Board meeting follows CLE meeting)

 

Location: Jaburg & Wilk, P.C. Conference Room, 20th Floor, 3200 North Central Avenue in Phoenix.  Free (validated) parking is available in the parking structure west of the office building.  (Kraig Marton, Jeff Silence and David Farren are our hosts.)

 

Attend Telephonically:

  • Dial (712) 432-1212
  • Enter the meeting ID number: 574-193-032 (followed by the # key)
  •  Put your phones on mute unless you are speaking.

 

 

Board Meeting (1:30 pm)

 

  1. Calling of roll of Board members present (in person and on the phone).

 

  1. Review and approval of minutes of Board meetings on June 30 and July 19, 2017. (Mishka Marshall)

 

  1. Treasurer’s Report (Michelle Matheson).  Financial report.

 

  1. Committee Reports

 

  1. Convention Planning Committee (Michelle Matheson (Chair), Suzanne Dohrer, Roger McKee, Mishka Marshall, Jeff Silence, Tony Shaw, and Ariel Henderson). Report on meeting and planned activities.  Discussion and possible action.

 

  1. Legislative Affairs Committee (Cheri McCracken (Chair), Denise Blommel, Thomas Rogers, Kaitlyn Redfield-Ortiz, Otto Shill, Nathan Smith, Meenoo Chahbazi, Santiago Flores, Jr., Nina Targovnik, and Jim Barton). Report on meeting and planned activities.  Discussion and possible action.

 

  1. Amicus Committee (Kraig Marton (Chair), Roger McKee, Chris Houk, Stan Lubin, Kevin Koelbel, Nathan Smith, and Joshua Carden). Report on meeting and planned activities.  Discussion and possible action.

 

  1. Website Committee (Jarrett Haskovec (Chair), Mishka Marshall, Jeffrey Silence). Report on meeting and planned activities.  Discussion and possible action.

 

  1. Public Outreach Committee (Mishka Marshall (Chair), Ty Frankel, and Meenoo Chahbazi). Report on meeting and planned activities.  Discussion and possible action.

 

  1. Social/Membership Committee (Michelle Matheson/Rich Harris (Co-chairs), Bill Hobson, Jeff Jacobson, Cheri McCracken, Chris Houk, Emily Johnson, and Erin Hertzog). Report on meeting and planned activities.  Discussion and possible action.

 

  1. Report on Advocacy

 

  1. AZELA Signs Letter Opposing the Confirmation of Eric Dreiband to Be the Assistant Attorney General of the Civil Rights Division at the U.S. Department of Justice (attached)

 

  1. AZELA Signs Letter Opposing Legislative Proposals to Divide the U.S. Court of Appeals for the Ninth Circuit (attached)

 

  1. Unfinished Business

 

  1. Membership Renewals and Limiting Listserv Access (Michelle Matheson). Report on renewals and status regarding listserv access for those who have not renewed.  Discussion and possible action.

 

  1. New Business

 

  1. Authorization to Post Certain Categories of Materials on AZELA’s Website (Jarrett Haskovec). Discussion regarding posting advocacy letters AZELA has signed on to, any amicus brief approved and drafted by AZELA’s Amicus Committee, any Board-approved statement or comments on executive or legislative affairs, issues, or policy, executive or judicial nominations or appointments, and organizational updates and news related matters on the AZELA website without any need for seeking further approval for each such posting.  Possible action.

 

It is recommended that AZELA’s President (or his or her designee) be authorized to post, or cause to be posted, on AZELA’s website, without any need for seeking further authorization for each such posting, the following categories of items: (1) advocacy letters AZELA has prepared or signed on to, (2) any amicus brief approved, drafted, and submitted by AZELA’s Amicus Committee, (3) any other Board-approved statement or comments on executive or legislative affairs, issues, or policy, executive or judicial nominations or appointments, and related matters, (4) updates concerning the organization, its Board, Officers, and Membership, and (5) any other news items of general interest to AZELA members or the public that relate to the positions or activities of the organization.  This authorization is in addition to previously-adopted authorizations regarding updating and posting on the AZELA website.

 

  1. Future Agenda Items. Requests by Board Members and AZELA members for future items for consideration by the Board.

 

  1. AZELA D&O/event insurance coverage (Jarrett Haskovec).  Discussion of areas for insurance coverage to be sought in any D&O or other liability coverage regarding AZELA activities, including CLE meetings and listserv defamation concerns.  Discussion and possible action.

 

  1. AZELA’s Potential Involvement in Legislative Affairs and

Initiatives (Roger McKee, Suzanne Dohrer).  Presentation regarding restrictions on contributions and endorsements for a 501(c)(6) organization.  Discussion and possible action.

 

  1. Membership and Convention Pricing (see Board email

exchange dated January 10, 2017).  Discussion and possible action.

 

  1. Next Regular Board Meeting Date: September 22, 2017.

 

Posted in 2017 Monthly CLE Meetings