NOTICE AND AGENDA FOR
AZELA Membership/CLE MEETING
Friday, January 19, 2018, 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, Jeffrey Silence, and David Farren are our hosts.) There is no cost to attend.
The AZELA Board of Directors is meeting at 1:35pm after the Membership CLE Meeting, and the Board agenda is provided at the end of this Notice.
Feel free to bring your lunch and beverage.
1.5 hour CLE certificates will be given to all in
attendance in person or telephonically
This Notice and Agenda prepared and written by Roger A. McKee firstname.lastname@example.org
Chair, AZELA CLE/Membership Meetings
To Attend Telephonically: Members who attend telephonically will be sent CLE certificates upon request to Roger McKee, email@example.com. 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
Dunlap v. Liberty Natural Products, Inc., 2017 WL 6614570 (12-28-17): Terminated employee filed five claims against employer including ADA claims. She prevailed on one ADA claim, with a jury verdict awarding damages. Holdings:
(1) ADA claims for disparate treatment and for failure to accommodate are separate and distinct claims with different elements of proof.
(2) Where employee prevailed on only one of her five claims, it was not error for the Court to reduce her requested attorneys’ fees by half.
Villalobos v. TWC Administration LLC, 2017 WL 6569587 (12-26-17): 9th Circuit reverses summary judgment for employer on multiple claims.
Re ADA failure to engage in interactive process claim:
“The burden is on the employer seeking summary judgment to demonstrate that there are no triable facts as to its participation in the interactive process. Jensen, 85 Cal. App. 4th at 260, 102 Cal.Rptr.2d 55. “[T]he employer’s obligation to engage in the interactive process extends beyond the first attempt at accommodation and continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed.” Humphrey, 239 F.3d at 1138.”
Re ADEA claim:
“Villalobos also testified that the field sales manager, the primary decision maker regarding his termination, made a remark during a sales meeting that he had been “hired to get rid of the veteran sales reps.” Although TWC argues that this comment is ambiguous because it could be interpreted as referring to experienced DSRs rather than older DSRs, “the task of disambiguating ambiguous utterances is for trial, not summary judgment.” Reid v. Google, 50 Cal.4th 512, 113 Cal.Rptr.3d 327, 235 P.3d 988, 1008 (2010) (quoting Shager v. Upjohn Co., 913. F.2d 398, 402 (7th Cir. 1990)).”
Rodriguez-Malfavon v. Clark County School District, 2017 WL 6330884 (12-12-17): Ninth Circuit reverses summary judgment for school district employer on employee’s claim under 42 USC 1983 for retaliation for exercise of First Amendment right of free speech:
“First Amendment retaliation claims are governed by the five-step framework outlined in Eng v. Cooley, 552 F.3d 1062 (9th Cir. 2009). The Eng factors inquire:
(1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech.
Id. at 1070. If the plaintiff successfully meets her burden on the first three factors, the burden shifts to the defendants on the last two. See id. at 1070–72.
The fifth factor allows a defendant to “avoid liability by showing that the employee’s protected speech was not a but-for cause of the adverse employment action.” Id. at 1072. We have emphasized that “[i]mmunity should be granted on this ground only if the state successfully alleges, without dispute by the plaintiff, that it would have made the same employment decisions even absent the questioned speech.” Id. (emphasis added). The but-for causation inquiry is a question of fact. Id.”
Benjamin v. B&H Education, 2017 WL 6460087 (12-19-17):
(1) The Ninth Circuit affirmed the district court’s summary judgment in favor of the defendant in an action brought under the Fair Labor Standards Act and state wage laws by students of a cosmetology and hair design technical school, holding that under the “economic reality” test, the students were not employees under the even though they alleged that much of their time was spent in menial and unsupervised work. Agreeing with other circuits, the panel held that a “primary beneficiary” analysis, rather than a test formulated by the Department of Labor, applies in the specific context of student workers. The panel concluded that the students, not defendant’s schools, were the primary beneficiaries of their own labors because at the end of their training they qualified to practice cosmetology and therefore they were not “employees” under the wage statutes. (Note: On January 5, 2018, the USDOL revised its “Fact Sheet 71 on Internship Programs under the FLSA” to adopt the “primary beneficiary” standard which is a seven factor test, pursuant to the decisions of the 2nd, 6th and 9th Circuits.)
(2) The student Plaintiffs offered three declarations to support their (cross) motion for summary judgment, but they came from witnesses who had not been listed as witnesses pursuant to FRCP Rule 26. The District Court struck the declarations as a sanction under Rule 37(c)(1), which sanction (striking) was upheld on appeal because it was not an abuse of discretion. The Ninth Circuit said that merely mentioning the name of a person in an interrogatory response is not disclosure of the person as a witness pursuant to FRCP Rule 26.
RAMc note: The Ninth Circuit has held that a Court should consider evidence from a witness disclosed late in a response to an employer’s motion for summary judgment where there was substantial justification for the late disclosure and no prejudice to the employer. Fonseca v. Sysco Food Services, 374 F. 3d 840, 845-846 (9th Cir., 2004)
(reviewed by Denise Blommel)
Aubuchon v. County of Maricopa, 2018 WL 283521 (1-3-18): A terminated employee does not have a right to gratuitous severance pay just because the employer has given such to some other employees, citing AZ law.
DeSoto v. McKay:
USDC for AZ decision (reviewed at Dec. 9, 2016 AZELA CLE meeting): 2016 WL 7049404 (12-5-16) case # 2:16 CV 996 PHX JAT (Brad Schleier for Plaintiff, AAG Neil McKay for Def.): Plaintiff is a forensic neuropsychologist who provided professional services to the AZ Dept. of Child Safety (“DCS”) (formerly known as “CPS”) as an independent contractor. There was a television news report that she had married Jacob Wideman whom she had met when she treated him when he was incarcerated at the state prison. Very soon after the TV news of her marriage to the ex-con she had met in prison, DCS cancelled her contract stating only that the “termination was done in the best interest of the state”. She filed a single claim against the DCS Director Greg McKay for a violation of 42 USC 1983 alleging that Defendant McKay, while acting in his individual capacity, deprived Plaintiff of her “First Amendment Right of Intimate Association and Fourteenth Amendment Liberty Interest in [the] Right to Marry and Right of Privacy”. The Defendant filed an FRCP Rule 12(b)(6) motion to dismiss, arguing that there were no violations of federal constitutional law alleged, but if there were, that none were clearly established in law and therefore the Defendant had qualified immunity. The Court treated the Complaint as setting forth three separate constitutional rights: (1) right to “intimate association”; (2) right to marry; and (3) right to privacy. Held: Upon these facts, there was no violation of these three rights as they exist in present law, and in any event, none of these rights were clearly established in the context presented so qualified immunity was a complete defense.
9th Cir decision, 2018 WL 299715 (1-5-18):
Ninth Circuit affirms FRCP Rule 12(b)(6) dismissal on different grounds than the USDC, and dodges constitutional and qualified immunity issues. Court finds that the Complaint was deficient under Twombly/Iqbal standards because it failed to allege specific facts that DCS Director McKay was the decisionmaker who terminated Plaintiff as a contractor for DCS, or was even personally aware that she was married to a convicted murderer.
RAMc practice comment: The Complaint should have alleged, inter alia, that fictitious individual Defendants(s) made the termination decision, and that the Plaintiff will seek leave to amend the complaint as soon as their identity(s) can be determined through discovery. A decision on the FRCP Rule 12(b)(6) motion to dismiss should be deferred until after the Plaintiff has been able to engage in discovery to determine who the decisionmaker(s) was. Wakefield v. Thompson, 177 F. 3d 1160, 1163 (9th Cir., 1999). Young v. Transportation Deputy Sheriff 1, 340 Fed. Appx. 368, 2009 WL 2011201 (9th Cir., 2009). Willis v. Walgreen Co., 2011 WL 772721 (D. Ariz., 2011). (This is one of those rare cases where a Plaintiff should name fictitious Defendants.) Also, perhaps the necessary info could have been obtained from the AZ DCS through the AZ Public Records Act prior to filing the complaint.
Kramer v. Cullinan, 2018 WL 2651006 (1-3-18): This case defines what triggers a public employee’s right to a “due process name clearing hearing” under 42 USC 1983 for a deprivation of a due process “liberty interest”. The Court held that a letter from the president of Southern Oregon University which was disseminated which stated that if the terminated public employee’s (plaintiff’s) actions were later determined to constitute bad faith or willful misconduct, insurance coverage would not be available was not stigmatizing, and therefore did not violate employee’s Fourteenth Amendment liberty interest, since the letter stopped far short of actually imputing “bad faith, willful misconduct, intentional acts, waste, or fraud to employee” which is the standard for “stigmatization” which will trigger a due process “liberty” right to a name-clearing hearing for a terminated public employee. (Note: This right should not be confused with the “property right” that a public employee has where they are not an at-will employee.)
Silver State Broadcasting, LLC v. Bergner, 2017 WL 6047537 (12-7-17): Plaintiff fails to provide damages calculations in initial disclosures as required by FRCP Rule 26(a)(1)(A)(iii), so Court grants summary judgment for Defendant because evidence of damages is excluded by failure to timely disclose. Affirmed:
“The Broadcasters violated Fed. R. Civ. P. 26(a)(1)(A)(iii) by failing to include a damages computation in their initial disclosures, and the district court did not clearly err in finding that this discovery violation was not harmless. See Payne v. Exxon Corp., 121 F.3d 503, 507 (9th Cir. 1997); Hoffman v. Constr. Protective Servs., 541 F.3d 1175, 1180 (9th Cir. 2008). Accordingly, the district court was authorized to sanction the Broadcasters under Fed. R. Civ. P. 37(c)(1).
Because the district court expressly found that the Broadcasters’ discovery violation was willful and that lesser sanctions were no longer available, the district court did not abuse its discretion in sanctioning the Broadcasters by excluding their damages evidence even though this sanction was tantamount to dismissal of their claim. See R & R Sails, Inc. v. Ins. Co. of Pa., 673 F.3d 1240, 1247–48 (9th Cir. 2012). Mr. Bergner did not waive his objection to the Broadcasters’ damages evidence by failing to move to compel that evidence during discovery. Because Rule 26(a)(1)(A)(iii) required the Broadcasters to disclose their damages computation “without awaiting a discovery request,” and because Rule 37(c)(1) establishes an automatic exclusion sanction for violations of that rule, Mr. Bergner did not need to move to compel disclosure before seeking sanctions. See R & R Sails, 673 F.3d at 1243, 1246–47 (concluding that a Rule 37(c)(1) exclusion sanction would be appropriate if the violation were willful and if lesser sanctions were not available, even though the party seeking sanctions had not moved to compel disclosure of the evidence during discovery). We affirm the district court’s order granting Mr. Bergner’s motion in limine to exclude evidence of the Broadcasters’ damages as a sanction for their violation of Rule 26(a)(1)(A)(iii).”
(reviewed by Natalie Virden)
U.S. District Court for Arizona cases
Mitchell v. American Airlines, Inc., 2018 WL 317291, case # 2:17 CV 2470 PHX DGC (1-8-17) (Plaintiff pro se, Nonnie Shivers for Defendants): Judge Campbell denies employer’s FRCP Rule 12(b)(6) motion to dismiss terminated employee’s claim for ADA discrimination.
Facts: “Plaintiff, who suffers from a physical impairment that requires her to use a “colostomy apparatus” and “medicines,” began working for Defendant as a customer service employee in Phoenix, Arizona in November 2010. In order to get to her work station, Plaintiff was required to pass through TSA security screening. Plaintiff’s impairment required that a female TSA agent be available to search her personal items and under her clothing. But because a female TSA agent was not always readily available, Plaintiff was late to her work station on several occasions. Plaintiff alleges she was harassed and disciplined for being late. In January 2011, Plaintiff met with her supervisor, Steve Olson, regarding her impairment and trouble getting through TSA security. During the meeting, Mr. Olson informed Plaintiff that it was just a matter of time before she would no longer be employed with the company and that perhaps she did not fit in at the Phoenix station. In March 2011, Plaintiff discussed the difficulties she was experiencing with a human resources representative. Mr. Olson responded that Plaintiff should consider alternatives to her employment. Plaintiff was ultimately terminated. Plaintiff alleges that these encounters and comments, and her termination, were a direct result of her impairment and associated personal needs while working.”
Holdings: (1) Plaintiff’s colostomy and its effects met the definition of a “disability” under the ADA.
(2) “Defendant argues that Plaintiff has not alleged sufficient facts to show that she was terminated because of her disability. Doc. 45 at 8. Plaintiff alleges that her colostomy apparatus delayed her passage through security, and that Defendant did not provide an alternative route for her to arrive at her station on time. She alleges that she explained her disability to her supervisor, Mr. Olson, and he responded that “Phoenix was not a fit for [her], [she] would do better to transfer out, [and] it is just a matter of time before [she is] no longer employed with USAirways.” Plaintiff asserts these comments were “a direct result of [her] apparatus and personal needs while working the gates.” Plaintiff also alleges that she was terminated in part for conduct resulting from her disability. Plaintiff notes that she was disciplined for being late to her work station because a female TSA agent could not always be located when she passed through screening. It is well established in the Ninth Circuit that “conduct resulting from a disability is considered to be part of the disability, rather than a separate basis for termination.” See Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1139-40 (9th Cir. 2001). This applies to limitations in getting to and from work. See Livingston v. Fred Meyer Stores, Inc., 388 Fed.Appx. 738, 740 (9th Cir. 2010); see also Humphrey, 239 F.3d at 1135 (holding that employer had an obligation to accommodate employee’s inability to get to work on time or at all due to obsessive-compulsive disorder). Plaintiff’s allegations give rise to a reasonable inference that her disability was a motivating factor in her termination.”
(reviewed by Suzanne Dohrer)
Martinez v. Maricopa County Community College District, 2017 WL 5000333, case # 2:16 CV 1759 PHX NVW (11-1-17) (Edmundo Robaina and Thomas Griffin for Plaintiff, Alanna Brook and Pavneet Uppal for Defendants): A tenured community college math instructor with over thirty years on the job was suspended for one year by the District Chancellor for having charged her students for copyrighted materials that she had photocopied and sold to her students and then refusing a direct order to give refunds to the students. The District has comprehensive procedures in place for discipline of tenured faculty, including a track for suspensions and another track for terminations. She filed a claim for violation of 42 USC 1983-violation of her 14th Amendment due process rights. Judge Wake wrote an order granting the Defendants’ motion for summary judgment, and was very critical of the arguments made by the Plaintiff. The Court rejected these arguments:
- The one-year suspension was tantamount to a dismissal and therefore the additional due process provided by the dismissal track should have been followed rather than the track for suspensions. Judge Wake commented:
“A one-year suspension is still a suspension. Indeed, the suspension expired 13 months later, and Martinez returned to work the next Fall semester. To say she was terminated though she returned to work proves only that paper will bear any words written upon it.”
- The suspension track process lacked the fundamental requirements for constitutional procedural due process.
- The Chancellor (Glasper) who made the final decision to suspend her was biased and not impartial. Judge Wake said:
“There is no evidence or even specific allegation of actual bias by Glasper. Similarly, Glasper had no occasion to present evidence of lack of bias. That is not surprising because no such claim was pleaded or subject to discovery. Martinez may not ambush Glasper now on that claim raised first in summary judgment briefing.
In the absence of actual evidence of bias, Martinez appears to argue that a personnel supervisor is disqualified from making a supervisory and disciplinary decision whenever he was involved earlier in the personnel matter. It is irrational to say that Glasper’s acceptance of the Committee’s prior finding of misconduct shows Glasper was biased in imposing lesser sanctions for that very misconduct, which was consistent with the Hearing Committee’s recommendation against dismissal.”
(Note: On 11-30-17, the Plaintiff filed a notice of appeal.)
(reviewed by Edmundo Robaina)
Langford v. Bell Motors LLC, 2018 WL 333437, case # 2:16 CV 2930 PHX DGC (1-9-18) (Jarrett Haskovec and Kaitlyn Redfield-Ortiz for Plaintiff, Lonnie Williams and Carrie Francis for Defendant): Devout Baptist used car salesman brought claims for Title VII religious discrimination and retaliation after he objected to directions from supervisor to make “cold calls” to potential customers on Sundays for religious reasons and he was eventually terminated. Employer’s motion for summary judgment denied. Holdings:
(1) Employee does not have to expressly state he is seeking an accommodation on religious grounds if he has effectively put employer on notice that his has an objection to a working condition or request for some kind of accommodation based upon his religious beliefs;
(2) The cumulative evidence was sufficient to prove a hostile environment; and
(3) A series of hostile environment incidents may rise to the level of a constructive discharge.
(4) The Plaintiff’s motion for partial summary judgment on the Ellerth-Faragher defense was denied because there was a fact question as to whether the steps the employer took in response to the Plaintiff’s complaint to HR were adequate to investigate and remedy the Plaintiff’s discrimination complaint.
(5) Punitive damages could be awarded because:
“Under Title VII, a plaintiff may recover punitive damages if he demonstrates that the defendant “engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(1). The focus is on the defendant’s state of mind. Christopher v. Spectra Elec. Servs., Inc., 637 F. App’x 383, 384 (9th Cir. 2016). . .
In EEOC v. Wal-Mart Stores, Inc., 156 F.3d 989 (9th Cir. 1998), the Ninth Circuit emphasized the importance of two facts in finding that punitive damages were available. Id. at 992-93. First, the Ninth Circuit noted that a supervisor who had received anti-discrimination training and a handbook nonetheless told a pregnant woman that she would not be hired because of her pregnancy. Id. at 992. Similarly here, Defendant has an anti-discrimination policy, yet general sales manager Stevens still declared that he did not “give a f— about your religion.” Second, the Ninth Circuit noted that Wal-Mart managers attempted to cover up the discriminatory conduct. Id. at 993. Here, Plaintiff presents evidence that his supervisors directed him not to contact Human Resources about any issues in the future. A reasonable jury could find facts to support the malice or reckless indifference required for punitive damages.”
(reviewed by Jarrett Haskovec or Kaitlyn Redfield-Ortiz)
Maycock v. Phoenix Motor Company, 2017 WL 6205527, case # 2:17 CV 1303 PHX GMS (12-18-17) (Ezra Clark III for Plaintiff, Douglas Lynn III for Defendant): Seventh Day Adventist marketing director was promoted to general sales manager and promised a raise, to-wit: a commission based upon on sales, but was demoted ten months later back to marketing director, and no commissions were ever paid. He later brought claims for failure to pay wages and religious discrimination in employment. The District Court denied employer’s motion for summary judgment on the wage claim even though the sales commissions percentage was never agreed upon when employee was promoted, citing Schade, but applied the one-year statute of limitations in ARS 12-541(3) to this claim. The Court granted the employer’s motion for summary judgment on the religious discrimination claims because of “same actor rule” and ten-month gap between the protected activity (not working on a Saturday) and the demotion (lack of temporal proximity between protected activity and adverse employment action).
(reviewed by Dan Bonnett)
Starling v. Banner Health, 2018 WL 397236, case # 2:16 CV 708 PHX NVW (1-12-18) (Michael Petitti for Plaintiff, Robert Baught and Stephanie Quincy for Defendants): Mark Starling, M.D., was fired by Banner Health from his position as Medical Director of the Banner Baywood Heart Hospital. He was 67 years old when fired, and his replacement was 60 years old. He brought claims of ADEA discrimination, ADEA retaliation, wrongful termination (EPA), ADA discrimination for perceived disability (alcoholism), defamation (report to BOMEX of suspected impairment), and invasion of privacy-intrusion upon seclusion. Defendants moved for summary judgment on all claims. Judge Wake dismissed all claims except for the ADEA discrimination and ADEA retaliation claims. Holdings include:
- A “PIP” was not an adverse employment action (“AEA”) because:
“. . . it was non-disciplinary and spelled out the manner in which Banner expected Starling to improve. Also, it did not explicitly form the basis for any adverse employment action. See James v. C-Tran, 130 Fed. Appx. 156, 157 (9th Cir. 2005). The PIP itself had no effect other than to point out areas on which Banner expected Starling to improve. Such a course of action is perfectly reasonable for any employer.”
(RAMc note: The 9th Circuit has repeatedly held that an undeserved PIP may be an AEA. Winarto v. Toshiba America Electronics Components, Inc., 274 F. 3d 1276, 1284 (9th Cir., 2001). Yartzoff v. Thomas, 809 F. 2d 1371, 1377 (9th Cir., 1987).
- There was sufficient evidence of age discrimination where Plaintiff presented evidence of all of the elements of proof for an ADEA discrimination complaint, and the employer’s stated reason for the termination may have been pretextual, 3 infra. The prima facie case was bolstered by evidence that he had told the employer that he would planned to continue on for three to five years before retiring but the employer had nonetheless put him on an unwarranted PIP. The Court also gave weight to the Plaintiff’s own (self-serving) testimony that his performance was satisfactory (one of the elements of proof for ADEA discrimination), citing Aragon, 292 F. 3d 654, 660.
- There was sufficient evidence that his termination was retaliation after his lawyer sent a letter to Banner Health stating that the Plaintiff planned to sue it for age discrimination, and then 35 days later, Plaintiff was fired for allegedly being intoxicated at the hospital premises at an after-hours Christmas party in the cafeteria where he was not performing any medical duties and there was evidence that he was not in fact intoxicated or impaired although he had consumed some wine earlier in the evening and had a blood alcohol level of .043.
- Where Plaintiff waited until just before close of discovery to notice depositions of decisionmaker doctors and senior managers, and had ignored previous efforts by Defendants to schedule them at mutually convenient times and instead Plaintiff noticed them at the last minute without consulting with the Defendants or determining the availability of the doctors for those dates, it was not error to grant a protective order precluding such depositions.
- When an employer has a reasonable suspicion that an employee is under the influence of drugs or alcohol on the employer’s premises, the employer may require the employee to submit to a breath and/or urine test at that time and such requirement does not constitute the tort of invasion of privacy-intrusion upon seclusion.
- The fact that the employer reported to BOMEX that it believed that the Plaintiff was impaired by alcohol at the hospital on one occasion when he was not performing any medical duties was insufficient to prove that the employer perceived or regarded the Plaintiff as an alcoholic so as to come within the coverage of the ADA.
- The Court noted a distinction in the EPA, ARS 23-1501(A)(3):
Subsection (b) requires a violation of an AZ statute, and thus does not provide a claim where there has been a violation of the AZ Constitution.
In sharp contrast, subsection (c)(i and ii) (which are the retaliation/whistleblower subsections) provide that the subject may be a reasonable belief of a violation of either an AZ statute or constitutional provision.
- Citing ARS 32-1451(A) and Advanced Cardiac, 222 Ariz. 383, the Court held that reports to BOMEX are entitled to a qualified privilege, which was not lost in this case since the Defendants had a good faith belief in their report to the Board.
(reviewed by Kraig Marton)
Arizona Court of Appeals case
Lunney v. State, 779 Ariz. Adv. Rep. 6, 2017 WL 6049445, Ct. of Apps. Case # 1 CA-CV 16-0457 (12-7-17) (Julio Zapata for Plaintiff, Michael Warzynski for State): AZ Public Records Act decision:
“¶ 1 Robin M. and John M. Lunney appeal the superior court’s judgment in favor of the State. We hold the attorney general’s office’s involvement in responding to the Lunneys’ public records requests did not violate Arizona’s Public Records Law because it did not unnecessarily delay the process of promptly providing the requested information. We also hold under Arizona’s Public Records Law: (1) when responding to public records requests, state agencies are required to query and search their electronic databases and produce responsive public records; (2) a public employee’s private cell phone records pertaining to the conduct of public business may become public records subject to disclosure if a public records requestor establishes the employee used the cell phone for a public purpose; (3) without justification for the delay, a 135–day response time to a request is not prompt; and (4) under these facts, the State’s responses to the Lunneys’ other requests were otherwise prompt and complete. Accordingly, we affirm in part and remand for further proceedings consistent with this opinion.”
Useful cases from other jurisdictions
The Boeing Company, 365 NLRB No. 154, 2017 WL 6403495 (12-14-17): The new Republican NLRB majority articulated a new method for testing the facial validity of employer work rules, overturning Lutheran Heritage. In the Boeing NLRB majority view, Lutheran Heritage needed to be replaced because its single-minded focus on NLRA rights and its overly simplistic approach rendered it too difficult to apply, led to anomalous and inconsistent results and prevented the Board from giving meaningful consideration to the real-world complexities associated with many employment policies, work rules and handbook provisions. In Boeing the Board has announced a new standard that it will follow when the it evaluates a facially neutral work rule that, when reasonably interpreted, would potentially interfere with the exercise of NLRA Section 7 (employee concerted action) rights. Under this new standard, the Board will strike the proper balance between asserted business justifications and the invasion of employee rights, and stated that it will now evaluate two things when testing the facial validity of work rule language: (1) the nature and extent of the rule’s potential impact on NLRA rules and (2) an employer’s legitimate justification associated with the rule. In some instances, the impact of the work rule may be self-evident, or the justifications associated with particular rules may be apparent from the rule itself or the Board’s experience with particular types of workplace issues. Parties may also introduce evidence regarding a particular rule’s impact on protected rights or the work-related justifications for the rule and the Board may draw reasonable distinctions between or among different industries and work settings. The Board may also take into consideration particular events that may shed light on the purpose(s) served by a challenged rule or on the impact of its maintenance on Section 7 conduct. The NLRB then identified three categories of work rules that would likely result from the new balancing test:
- Category 1 will include rules that the Board designates to be facially lawful either because (i) the rule, when reasonably interpreted does not prohibit or interfere with the exercise of NLRA rights or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule. Examples of Category 1 rules are the no-camera in the workplace rule at issue in Boeing as well as rules calling for “harmonious interactions and relationships” and other rules calling for employees to abide by basic standards of civility.
- Category 2 will include rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.
- Category 3 will include those rules that the Board will designate as unlawful because they would prohibit or limit NLRA-protected conduct and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule. As an example of such an unlawful rule, the Boeing Board cited a rule that prohibited employees from discussing wages or benefits with one another.
Boeing is welcome news for employers. Under prior NLRB precedents which have now been partially overruled, employer work rules or handbook provisions that were overbroad in that they could prohibit NLRA protected employee communications (“concerted action”) had been held to be invalid and per se violations of the NLRA.
(RAMc note: This decision applies to almost every private sector employer in the U.S. irrespective of union presence or activity.)
Ly v. County of Fresno, 116 Cal. App. 5th 134, 223 Cal. Rptr. 3d 875 (2017): Three Laotian county correctional officers filed claims against the county for employment discrimination based upon race and national origin and retaliation in violation of CA state law. They also filed parallel workers comp claims for psychiatric injuries as the result of discrimination and retaliation by the County. The workers comp claims resulted in final non-appealed administrative agency adjudications that the County had not engaged in discrimination or retaliation and their claims were denied. The subsequent dismissal of their state court claims of discrimination and retaliation in violation of CA employment discrimination law was affirmed on the grounds of claim preclusion based upon the final decisions in the workers comp cases. This same result would happen in AZ. Wehrli v. County of Orange, 175 F.3d 692, 694 (9th Cir. 1999) (according preclusive effect to administrative proceedings “where judicial review of the administrative adjudication was available but unused”); see also Holcombe v. Hosmer, 477 F.3d 1094, 1097 (9th Cir. 2007) (federal courts must apply state law regarding res judicata to state court judgments). Hernandez v. Gemini Hospice LLC, 2017 WL 1318036, case # 2:16 CV 1486 PHC GMS (4-10-17).
Donlin v. Petco Animal Supplies Stores, Inc., 2017 WL 4541362 (D.N.M., 2017) (New Mexico counsel for Plaintiff, Shawn Oller (Littler-Phoenix) for Defendant): This is an xlnt case supporting the right of employment law case plaintiffs to obtain discovery of other reports or allegations of similar discriminatory or retaliatory conduct by an employer which may, depending upon the circumstances of the claim(s), be nationwide, and not just limited to the plaintiff’s workplace. Discovery of all similar claims nationwide permitted where there was evidence that decisionmakers were corporate office persons rather than persons at plaintiff’s worksite.
Waverly Heights, Ltd. v. Unemployment Compensation Board of Review, 2017 WL 5241175 (Pa. Cmnwlth., 11-13-16): V.P. for H.R. of senior care living facility was fired after posting to social media site:
“@realDonaldTrump I am the VP of HR in a comp outside of philly an informal survey of our employees shows 100% AA employees voting Trump!”
Employer argued that she was not eligible for unemployment benefits because she was guilty of “willful misconduct” (the same disqualifying standard applies in AZ) since she violated the employer’s strict social media policy and, although she did not identify her employer by name it would be easy for a reader to determine who her employer was. The Court held that this was not “willful misconduct” and approved unemployment benefits.
Bankers Life and Casualty Co. v. American Senior Benefits LLC, 83 N.E. 3d 1085 (Ill. App., 2017): A Bankers Life insurance executive had signed a restrictive covenant restricting him from, inter alia, soliciting or recruiting any Bankers Life employees for employment for a period of two years after his employment ended. His employment ended, and he began a new similar job with a Bankers Life competitor. He then sent “invitations to connect” with him through LinkedIn to three Bankers Life employees he had worked with. Those who accepted his invitation to connect would most likely see a link that would lead to job postings for the new employer. Summary judgment for the new employer was affirmed, with the Court holding that this was insufficient to prove a violation of the restrictive covenant prohibition against soliciting (raiding) against the original employer. But see Mobile Mini, Inc. v. Vevea, 2017 WL 3172712 (D. Minn., 2017) where the employer alleged violation of a non-compete, where the Court reached a contrary result as the result more aggressive conduct in LinkedIn:
“Here, Vevea made two blatant sales pitches on LinkedIn on behalf of Citi-Cargo before the expiration of the Agreement’s non-solicitation provision. Contrary to Defendants’ arguments, the posts are not mere status updates announcing Vevea’s new position and contact information—if that were the extent of the posts, then there would likely not be a breach of contract. See Arthur J. Gallagher & Co. v. Anthony, No. 16-284, 2016 WL 4523104, at *15 (N.D. Ohio Aug. 30, 2016) (holding that a press release posted on LinkedIn and Twitter announcing that an employer had hired a new employee was not a solicitation); Invidia, LLC v. DiFonzo, No. MICV20123798H, 2012 WL 5576406, at *5 (Mass. Super. Ct. Oct. 22, 2012) (holding that a Facebook post announcing an employee’s new job was not a solicitation). Instead of merely announcing a job change, the language of the posts here demonstrates that Vevea’s purpose was to entice members of Vevea’s network to call her for the purpose of making sales in her new position at Citi-Cargo.”
Fallon v. Mercy Catholic Medical Center, 877 F. 3d 487 (3rd Cir., 2017): Psychiatric nurse employed by hospital as required (along with other hospital employees) to get flu shot, and he refused, claiming such inoculation would violate his religious beliefs. He was fired because of his refusal and he filed a Title VII claim of religious discrimination in employment. District Court dismissed claim, and Third Circuit affirmed, because Plaintiff failed to present evidence that his refusal was based upon a sincerely held religious belief. Good discussion of burden of proof that employee’s position is based upon sincerely held religious belief as opposed to some other basis.
Larsen v. Citibank FSB, 871 F. 3d 1295 (11th Cir., 2017): A provision in a pre-dispute binding arbitration agreement which requires the parties to keep the arbitration decision confidential is substantively unconscionable.
Conclusion of Membership Meeting
(Pick up your CLE certificate or send e-mail to
firstname.lastname@example.org to request it.)
2018 AZELA Calendar
All AZELA meetings and events listed are on Fridays. Jaburg & Wilk has generously let us use their conference room again in 2018 for our Membership/CLE meetings on the dates listed below:
AZELA Annual Convention Friday Feb. 23, 2018
October – TBD
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, January 19, 2018, at 1:30 pm
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 is our host.)
- Dial (605) 472-5814
- Enter the meeting ID number: 574-193-032 (followed by the # key)
- Put your phones on mute unless you are speaking.
Board Meeting (1:35 pm)
- Calling of roll of Board members present (in person and on the phone).
- Review and approval of minutes of Board meeting on November 17, 2017. (Mishka Marshall)
- Treasurer’s Report (Michelle Matheson). Financial report.
- Committee Reports
- 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, including member survey, membership renewal, notice of upcoming elections, and possible happy hour. Discussion and possible action.
- Report on Advocacy
- Unfinished Business
- Proposed Amendments to Bylaws (Michelle Matheson). Discussion on proposed changes to bylaws (attached) aimed at avoiding conflicts of interest among directors and prohibiting retaliation, among other proposed changes. Discussion of what occurred during and after October board meeting in connection with discussion and vote on raising pay of CLE chair that prompted proposed changes. Discussion and possible action.
- Monitoring and Policing Listserv Access and Eligibility for Membership. Report and recommendations from ad hoc committee chaired by Joshua Carden exploring issue and proposed solutions. Discussion and possible action.
- Committees – Creation of an Executive Committee, Elimination
of the Website Committee, and Possible Creation of a Webmaster Position (Jarrett Haskovec). Discussion and possible action.
It is recommended that AZELA establish an Executive Committee as a standing committee, consisting of the then-current Officers of AZELA as ex-officio members of the Committee, for the purposes of: (1) receiving, hearing evidence concerning, and recommending the disposition of complaints related to access to, or the use or disclosure of, the listserv and associated emails, including imposing any appropriate interim actions for any allegedly unauthorized access, use, or disclosure up to and including suspension from the listserv, until such time as the entire Board may render a final decision on such complaints; (2) receiving complaints, hearing evidence concerning and recommending the disposition of motions to censure or penalize AZELA Board members or Officers in the first instance, any censure or other penalty only being imposed as the result of action by the Board in accordance with AZELA’s bylaws; (3) receiving complaints, hearing evidence concerning and recommending the disposition of complaints related to a member’s eligibility for membership in AZELA in light of established qualifications for membership; and (4) other duties as assigned by the Board from time to time. If any member of the Executive Committee feels compelled to recuse himself or herself because of a conflict of interest or another reason that makes the member unable to perform this role in a particular case and to do so fairly and impartially, the President will appoint another member to the Committee from among the Board of Directors for such a case. Quorum for the Committee shall be three Officers in attendance, in person or by video or telephone, at any meeting of the Committee.
It is recommended that the AZELA Website Committee be disbanded and eliminated as an AZELA standing committee.
It is further recommended that AZELA establish a Webmaster position for the purpose of posting items to, coordinating, and monitoring the AZELA website and/or working with a vendor to accomplish this purpose.
It is further recommended that Jeff Silence be appointed as AZELA’s first Webmaster.
- Succession Planning (Jarrett Haskovec). Discussion on need to publicize upcoming elections through the listserv and to identify and encourage qualified candidates to run for board and officer positions. Discussion and possible action.
- New Business
- New business
- Future Agenda Items. Requests by Board members and AZELA members for future items for consideration by the Board.
- 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.
- 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.
- Next Meeting Date: Annual Convention on February 23, 2018