May

NOTICE AND AGENDA FOR

AZELA Membership/CLE MEETING

Friday, May 19, 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)

 

(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.

  • 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.

 

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

 

Roberts v. The Permanente Medical Group, Inc., 2017 WL 1806546 (5-4-17): 9th Circuit affirmed summary judgment for employer on ADA claim of failure to provide a reasonable accommodation, holding: “The Appellees were entitled to summary judgment on the claim for failure to provide a reasonable accommodation. Roberts’s requested accommodation, being restricted from visual or verbal contact with her direct supervisor, is effectively a request for a new supervisor. That is per se unreasonable under Equal Employment Opportunity Commission (“EEOC”) guidelines. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, Question 33 (EEOC Notice No. 915.002, Oct. 17, 2002). Roberts’s alterative request for reassignment in contravention of her collective bargaining agreement was also unreasonable. See U.S. Airways, Inc v. Barnett, 535 U.S. 391, 403 (2002).”

 

Long v. Gill, 2016 WL 1948617 (5-10-17): “The district court also did not abuse its discretion in determining the amount of attorney’s fees to award under 42 U.S.C. § 1988(b). The court need only award fees “that it deems reasonable,” and may award less than the amount requested if it gives “a specific explanation” for doing so. Moreno v. City of Sacramento, 534 F.3d 1106, 1111-12 (9th Cir. 2008). The district court reasonably found that this case was “anything but complex,” and that the results obtained did not require two attorneys.”

 

Izo v. Yovino, 2017 WL 1505068 (4-27-17): Female employee brought claims for (1) Equal Pay Act (FLSA), and (2) Title VII sex discrimination. 9th Circuit held that the Plaintiff had proven she was paid less for the same work as her male colleagues, and therefore, with respect to both claims, the burden of persuasion shifts to the employer to show that the wage disparity is permitted by one of the four statutory exceptions to the Act: (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production; or (4) a differential based on any other factor other than sex.  The employer claimed that the reason for the pay differential was the Plaintiff’s salary history relative to her male counterparts.  The 9th Circuit held that this was “a differential based on a factor other than sex” if the employer could show that it reasonably based her pay upon her prior salary history (a “supply and demand” factor).

 

Morrow v. City of Oakland, 2017 WL 1732266 (9th Cir., 5-3-17): The district court properly dismissed Morrow’s race discrimination and retaliation claims under Title VII and 42 U.S.C. § 1981 because Morrow (pro se) failed sufficiently to plead the element of an adverse employment action by alleging only that defendants “mishandled his employment grievances and police review board complaint”, citing, inter alia, Chuang v. Univ. of Cal. Davis, Bd. of Regents, 225 F.3d 1115, 1126 (9th Cir. 2000) (failure to respond to grievances did not amount to an adverse employment action).

 

Mayes v. WinCo Holdings, Inc., 846 F. 3d 1274 (2-3-17):

Facts: Plaintiff Katie Mayes worked at WinCo, an Idaho Falls grocery store, for twelve years. During her final years at WinCo, Mayes supervised employees on the night-shift freight crew. On July 8, 2011, Mayes was fired for taking a stale cake from the store bakery to the break room to share with fellow employees and telling a loss prevention investigator that management had given her permission to do so. WinCo deemed these actions theft and dishonesty. It also determined that Mayes’s behavior rose to the level of gross misconduct under the store’s personnel policies. WinCo denied  Mayes and her minor children benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). WinCo also denied Mayes credit for accrued vacation days. Mayes argued that WinCo fired her not for theft and dishonesty but instead to put a man in charge of the freight crew. She filed three claims against WinCo: (1) sex discrimination claims under Title VII; (2) a claim under COBRA; and (3) a wage claims under the Fair Labor Standards Act. The district court granted summary judgment to WinCo on all claims, but the 9th Circuit reversed and remanded on all.

Holdings:

(1) Cat’s paw: Genuine issue of material fact existed as to whether female general manager of grocery store, who allegedly made remarks indicating discriminatory animus towards female manager based on her sex, participated in decision to terminate manager or in decision to hire male replacement, precluding summary judgment  The animus of a supervisor can affect an employment decision if the supervisor influenced or participated in the decision-making process; even if the supervisor does not participate in the ultimate termination decision, a supervisor’s biased report may remain a causal factor if the independent investigation takes it into account without determining that the adverse action was, apart from the supervisor’s recommendation, entirely justified.

(2) The fact that the supervisor with a discriminatory motive is in the same protected class as the plaintiff (Mayes’ supervisor was female) is no defense in a discrimination claim.

(3) The COBRA claim was based upon the employer’s failure to offer COBRA coverage to Mayes when she was fired. Under 29 U.S.C. 1163(2), employers may deny COBRA notice and benefits if the employee is terminated for “gross misconduct”. The Ninth Circuit held that there was a fact dispute as to whether or not Mayes had been guilty of “gross misconduct”.

(reviewed by Emily Tournabene)

RAMc French history comments: (1) These facts remind me of the famous quote from Marie Antoinette about the rebellious peasants just before she was beheaded in the French Revolution “Let them eat (stale) cake”. (2) The facts of this case are a classic case of the punishment not fitting the crime, kinda’ like what got Jean Valjean thrown in the Bastille in “Les Miserables”.

 

Santillan v. USA Waste of California, Inc., 853 F. 3d 1035 (9th Cir., 2017), the 9th Circuit held that (1) California recognizes a wrongful termination of employment claim where the employer retaliates because the employee has retained counsel related to a workplace dispute or issue, and (2) two months between the protected activity and the adverse employment action was, standing alone, sufficient to prove the causal connection between the two events.

 

U.S. District Court for Arizona

 

Fisher v. Glendale Elementary School District, 2017 WL 1787565, case # 2:14 CV 2083 PHX ESW (5-3-17) (Brian Stickman and Jessica Burguan for Plaintiff, Robert Haws for Defendant) (Bad lawyering case) Plaintiff school district employee resigned after being investigated for unprofessional conduct (nasty e-mails) and given a formal reprimand. She filed a six-count complaint, four state law claims, and claims under Title VII and 42 U.S.C. 1981. In early proceedings, all state law claims were dismissed because of non-compliance with notice of claim statute. Defendant’s motion for summary judgment was then granted on the two remaining federal claims because, inter alia:

(1) “Plaintiff has failed to properly address Defendant’s Statement of Facts as required by Fed. R. Civ. P. 56(c). Therefore, the Court considers Defendant’s Statement of Facts undisputed for purposes of the Motion for Summary Judgment. See Fed. R. Civ. P. 56(e)(2).”  -and-

(2) “Plaintiff does not specifically mention Count Six in her Response. Plaintiff broadly states “[t]he evidence to prove my remaining claims is information in the Recruitment for Classified, adverse actions that resulted in my constructive discharge, and a continued pattern of discrimination corroborated by other EEOC complaints.” (Doc. 73 at 1). Plaintiff’s conclusory allegations unsupported by admissible factual material are insufficient to raise a genuine issue of material fact. Soremekun, 502 F.3d at 984. Plaintiff makes no effort to direct the Court to which documents she believes are applicable to Count Six in her Response. Nor are Plaintiff’s exhibits authenticated or admissible. “Judges are not like pigs, hunting for truffles buried in briefs.” Christian Legal Soc. Chapter of Univ. of Calif. v. Wu, 626 F. 3d 483, 488 (9th Cir. 2010).”

 

O’Neal v. America’s Best Tire LLC, 2017 WL 1311670, case # 2:16 CV 56 PHC DGC (4-5-07) (Michael Zoldan and Clifford Bendau for Plaintiffs, Karen Karr and Brad Denton for Defendants): Two original and twelve opt-in Plaintiffs filed this lawsuit FLSA overtime lawsuit against their employers, tires stores with common ownership.  They settled all fourteen claims for a total of $30,000, and agreed to have the court determine attorneys’ fees and costs.  The Plaintiffs sought $141,000 in attorneys’ fees and $6,064 in costs.  After considering the requests and objections and arguments and LRCIv 54.2, Judge Campbell awarded attorneys’ fees of $60,000 and taxable costs of $3,361, because, inter alia:

 

Attorneys’ fees:

 

(1) The number of hours was excessive for many tasks.  The Court, sua sponte, examined the PACER case dockets and found a large volume of almost identical pleadings filed by both counsel in other FLSA cases, indicating that many of the tasks were using templates or boilerplates for which excessive hours were claimed.

(2) Block billing was used, making it impossible for the Court or opposing counsel to determine the reasonableness of the time claimed for a particular task.

(3) All tasks were billed at a minimum of .2 hour even if the task would have taken only a minute or so.

(4) A Ninth Circuit case was quoted, and Judge Campbell concluded:

“The Court concludes that awarding more than $110,000 in attorneys’ fees for the work done in this case, given the familiarity of Plaintiffs’ counsel with the issues litigated and the extent of success, would be unreasonable. In fact, in language relevant to this case, the Ninth Circuit noted that “no reasonable person would pay lawyers $148,000 to win $34,000.” McGinnis, 51 F.3d at 810. The Court concludes that a fee award of $60,000 represents the reasonable value of the work performed by Plaintiffs’ counsel.”

 

Costs recoverable under the FLSA:

 

(5) “Under the Fair Labor Standards Act, costs [‘of the action’] include reasonable out-of-pocket expenses.” Van Dyke v. BTS Container Serv., Inc., No. 08-cv-561-KI, 2009 WL 2997105, at *2 (D. Or. Sept. 15, 2009) (citing Smith v. Diffee Ford–Lincoln–Mercury, Inc., 298 F.3d 955, 969 (10th Cir. 2002)). “Costs of the action “can include costs beyond those normally allowed under Fed. R. Civ. P. 54(d) and 28 U.S.C. § 1920.” Id. (citing Herold v. Hajoca Corp., 864 F.2d 317, 323 (4th Cir. 1988)) (FLSA’s costs provision authorizes an award of costs as part of a “reasonable attorney’s fee,” which would not be authorized under Rule 54 or 28 U.S.C. § 1920).”

(6) The employers objected to the following costs: (1) $203.70 for obtaining a transcript of the scheduling conference; (2) $2,762.50 in sums paid to Optime Administration, a firm retained to administer the opt-in portion of the case; (3) $170 paid to attempt service on “Max Jones”; and (4) $2,500 in “overhead,” a total that is not itemized or explained.  Judge Campbell denied #1 as unnecessary, and #3 as non-compensable normal law office operating expenses.

 

Maricopa County v. Office Depot, Inc., 2017 WL 1957882, case # 2:14 CV 1372 PHX HRH (5-11-17): This is a commercial case wherein Office Depot prevailed and applied for attorney’s fees and taxable costs. Maricopa County filed multiple objections, and supported some objections with a declaration by a local experienced civil litigator (William Klain). Holdings include:

(1) Court approved hourly fees of seven Washington, DC attorneys and local Osborn Maledon attorneys ranging between $801 down to $445.50.

(2) Court approved paralegal hourly rates of $238.50 and $175.50.

(3) Court approved “litigation staff support” hourly rate of $306.

(4) Court approved hourly “library support staff” rates of $247.50 and $243.

(5) Court reduced some fees for routine legal work done by high cost partners that could have been done by lesser cost associates.

(6) Court reduced fees for some depositions where it found that Office Depot did not need to have two attorneys present for those depositions.

 

Arrelano v. San Luis, City of, 2017 WL 1833603, case # 2:16 CV 3423 PHX DGC (5-8-17): Police chief is fired amidst “banana republic” allegations of traffic ticket fixing. This case has defective pleadings, bad lawyering, gross ove-filing of claims, misrepresentations to the Court re delay in service of process (but no zombies!).

 

 

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). Superior Court (Judge Starr) granted summary judgment for employer, but Court of Appeals reversed and remanded, holding, inter alia:

(1) “To prevail on a wrongful termination (EPA) claim, Lipsky must show that his filing a workers’ compensation claim was a substantial factor in the decision to terminate his employment. See Thompson v. Better–Bilt Aluminum Prods. Co., 187 Ariz. 121, 127, 927 P.2d 781, 787 (App. 1996).”

(2) The merits of the wrongful termination claim did not depend upon the merits of the underlying workers comp claim.

 

Gullett on behalf of Estate of Gullett v. Kindred Nursing Centers West, L.L.C., 241 Ariz. 352, 390 P. 3d 378 (App., 2017): (Scott Boehm for Plaintiff, Anthony Fernandez for Defendant): Jeffrey Gullett appealed the Superior Court judgment compelling arbitration of his statutory claim for abuse and neglect of his late father Winford Gullett pursuant to Arizona’s Adult Protective Services Act (APSA), A.R.S. §§ 46–451 to 46–459. He argued that the mandatory arbitration agreement that his ill father signed when he was admitted into the Defendant’s nursing home was both substantively and procedurally unconscionable and therefore unenforceable. (Note: Under AZ law, an arb agreement may be unenforceable based upon either procedural and/or substantive unconscionability.)  Gullett first argued that the arb argreement was substantively unconscionable because of (1) limitations on discovery, (2) failure to assure a neutral arbitrator by referencing an arb service designated by the Defendant, and (3) lack of mutuality of obligation to arbitrate claims. The Court of Appeals recognized these three grounds for substantive unconscionability and examined the record and determined that the facts did not support these three arguments. Next, regarding procedural unconscionability, the Court reversed because the Superior Court denied Gullett the opportunity to do discovery to support this defense to compelling arbitration:

“ . . .when determining “whether an arbitration agreement is procedurally *388 unconscionable, [a] court must examine each transaction on its own facts.” Dueñas, 236 Ariz. 130, ¶ 9, 336 P.3d at 768; see also Broemmer v. Abortion Servs. of Phx., Ltd., 173 Ariz. 148, 153, 840 P.2d 1013, 1018 (1992) (examining specific facts of case to find arbitration agreement unenforceable). Only Gullett’s father and Kindred’s representative were present when Kindred entered into the Agreement with Gullett’s father, a man requiring in-patient care because of serious health problems, and who died approximately one month later. Gullett therefore cannot oppose arbitration on the basis of procedural unconscionability without being permitted limited discovery on that issue. The ability to mount a procedural unconscionability defense to arbitration should not depend on something as fortuitous as whether the individual who signed the agreement remains able to testify.

22¶ 33 Limited discovery on the issue of procedural unconscionability is consistent with Arizona public policy favoring arbitration. “The whole object of discovery is that mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.” Simpson v. Heiderich, 4 Ariz.App. 232, 236, 419 P.2d 362, 366 (1966). Discovery would also prevent dispositions on the issue of procedural unconscionability “from becoming a guessing game.” U–Totem Store, 142 Ariz. at 552, 691 P.2d at 318. And, because arbitration agreements are subject to the same enforceability defenses as any other contract, Dueñas, 236 Ariz. 130, ¶ 6, 336 P.3d at 768, it is the prerogative and obligation of courts to determine the validity of an arbitration agreement prior to enforcement, see Guidotti, 716 F.3d at 773, which cannot be done properly without an adequate vetting of the issue.”

 

Minch v. Arizona State Board of Nursing, 2017 WL 2125723, Ct. Apps. Div. One case # 1 CA-CV 16 152 (5-16-17) (Plaintiff pro se, AAG Elizabeth Campbell for ASBN) Professional licensing discipline case – Court of Appeals upholds ASBN decision placing R.N on probation. Holdings:

(1) Where one ALJ conducted the four-day evidentiary hearing, and another ALJ reviewed the record of the hearing and then wrote the decision (which was affirmed by the Board), there was no denial of procedural due process;

(2) ASBN had jurisdiction to impose discipline for conduct outside the licensee’s practice of nursing.

 

Useful cases from other jurisdictions

Atkins v. City of Los Angeles, 8 Sal. App. 5th 696, 214 Cal. Rptr. 3d 113 (2017): LAPD had established policy of allowing police academy cadets who were injured while in training to be transferred to light-duty assignments until they recovered, and then cancelled the light duty program, and subsequently police cadets who were injured while in the academy sought light duty, but were turned down under the new policy, and terminated or forced to resign. California Court of Appeal held that the fact that such a reasonable accommodation” had been offered in the past was strong evidence that it should have been made available to the injured cadets when they requested it for their injuries: “We further conclude that requiring the City to assign temporarily injured recruit officers to light-duty administrative assignments was not unreasonable as a matter of law in light of the City’s past policy and practice of doing so.”

Crabtree v. Angie’s List, Inc., 2017 WL 413242 (S.D. Ind., 1-31-17): Plaintiffs filed FLSA OT claims against their employer, alleging that they were only paid for 40 hours per week, but had in fact worked far more hours, often off-premises, using their personal cell phones and personal computers.  In order to mount a defense to the overtime claims, the company sought information and data that would pinpoint the plaintiffs’ ­whereabouts at all times and potentially show that they were not working when they said they were. The discovery requests included a demand for the plaintiffs’ GPS and ­location services data from their personal cellphones, email messages, social media posts, work schedules, journals, diaries, calendars, text messages, blog or website posts, Twitter messages or other social media posts. The company also sought to forensically ­examine all computers, ­cellular telephones, smartphones, tablets, and other communication devices used by the plaintiffs during work time throughout their employment with the defendant. The plaintiffs argued that since they were permitted, and in fact expected, to work outside the office to accommodate clients in different time zones, the fact that their phones had left the Angie’s List ­building would have no meaningful impact on whether the employees were performing work at that time. The plaintiffs had already provided the defendant with cellphone records that would allow the company to identify business-related calls. Moreover, the court wrote, the company also had ­access to data from SalesForce that shows when the employees were logged into the software as well as data showing when they were present at Angie’s List’s offices such as badge swipe data and login data from their work 
computers. In addressing all of the employer’s discovery requests, the court cited the recent amendment to Federal Rule 26(b)(1) on proportionality, noting that discovery must be “proportional to the needs of the case.” Because this an FLSA OT action, the court declared that when the plaintiffs were in fact working was relevant. But the court found that the defendant failed to demonstrate that the GPS/location services data from plaintiffs’ electronic devices would be more probative than any of the other data already in the company’s ­possession. Consequently, forensic examination of the electronic devices was not ­proportional to the needs of the case because the significant privacy and confidentiality interests of the employees outweighed any ­benefit the data might provide. Angie’s List similarly failed to show how the employees’ emails, text messages or social media posts from this one year period may be more probative as to these issues than other less intrusive data already within its control, such as the SalesForce data, computer logins, or badge swipe data. The employer’s discovery requests were denied.

(reviewed by Jeffrey Silence)

 

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).

 

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 on the basis 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 on the basis of “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.

Featherstone v. Southern California Permanente Medical Group, 10 Cal. App. 5th 1150, 2017 WL 1399709 (2017):  Plaintiff Ruth Featherstone alleged that during her employment with Southern California Permanente Medical Group, she suffered from a temporary disability when a prescription drug she was taking altered her mental state. In this altered mental state, she first orally resigned during a phone call with her supervisor and subsequently confirmed her resignation in an email. The employer immediately processed the termination paperwork to provide Featherstone with her final paycheck, in compliance with state law. A few days later, Featherstone asked the employer to allow her to rescind her resignation, explaining that she had been in an altered mental state when she resigned. The company declined her request. Featherstone sued on the basis that the company had acted with a discriminatory motive in refusing to allow her to rescind. The California Appeals Court affirmed summary judgment in favor of the employer on two grounds. First, the employer’s refusal to allow Featherstone to rescind her resignation was not an adverse employment action. The Court noted, however, that a forced resignation by coercion or duress or by misrepresentation could lead to a different result, as could a contract governing the employment relationship:

“Because the “ ‘the employment relationship is fundamentally contractual’ ” (Guz, supra, 24 Cal.4th at p. 336, 100 Cal.Rptr.2d 352, 8 P.3d 1089), California courts have similarly held that “[r]esignations are contractual in nature.” (Mahoney v. Board of Trustees (1985) 168 Cal.App.3d 789,799, 214 Cal.Rptr. 370.) “As such, a resignation is an offer which may be withdrawn prior to its acceptance.” (Ibid., italics added; Civ. Code, § 1586; T.M. Cobb Co. v. Superior Court (1984) 36 Cal.3d 273, 278, 204 Cal.Rptr. 143, 682 P.2d 338.) In other words, “[u]nder California law, an employee has a right to rescind a resignation unilaterally (like any contract offer) only prior to its acceptance.” (Ulrich v. City and County of San Francisco (9th Cir. 2002) 308 F.3d 968, 975.)”

RAMc note: The only reported AZ decision on this subject is Redlon v. Arizona Dept. of Economic Security, 215 Ariz. 13 (App., 2007), but its holdings apply solely to public employees who have due process/property rights to their jobs and would not apply to a private sector employee.

 

The second basis for the Court’s decision was that Featherstone had failed to raise a triable issue of fact as to whether the company employees who accepted and processed her resignation were aware of any alleged disability at the time of the resignation. On this point, accord, Dewitt v. Southwestern Bell Telephone Co., 845 F. 3d 1299 (10th Cir., 2017) (Proposed accommodation of diabetic employee of call center, namely retroactive leniency for her misconduct of dropping customer calls, was unreasonable within the meaning of the ADA; ADA did not require employer to accommodate employee by overlooking her past workplace violations, regardless of whether that violation was caused by employee’s disability.)

 

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:

 

May 19

June 14-16:  State Bar Convention (La Paloma, Tucson)

June 21-14 NELA Convention (San Antonio)

June 30

(No meeting in July)

August 25

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, Mar 17, 2017, at 1:35 pm

(CLE meeting at noon; Board meeting begins afterward)

 

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.)

 

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.

 

 

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

 

  1. Review and approval of minutes of Board meeting on March 17, 2017. (Mishka Marshall/Suzanne Dohrer)

 

  1. Treasurer’s Report (Michelle Matheson).  Financial report and discussion regarding status of IRS Form 990-N filing.

 

  1. Committee Reports

 

  1. Website Committee. (Jarrett Haskovec (Chair), Mishka Marshall, Jeffrey Silence).  Report on recent and planned updates to website and new password.  Discussion and possible action.

 

  1. Unfinished Business

 

  1. Membership Renewals and Limiting Listserv Access (Michelle Matheson). Report on renewals, outreach efforts, and potentially cutting off listserv access to those who have not yet renewed.  Discussion and possible action.

 

  1. Composition and Work of Committees (Convention Planning, Legislative Affairs, Amicus, Website, Public Outreach, and Membership/Social). Discussion on committees, composition of same, any vacancies among chairs, and planning meetings and future activities for 2017.  Discussion and possible action.

 

  1. New Business

 

  1. Hosting an AZELA Social Event at the SBA Annual Convention (Michelle Matheson). Report on plans for hosting event, event details, and cost.  Discussion and possible action.

 

  1. Membership Renewal/Convention Registration Form and Frank Fanning Fund (Nina Targovnik). Discussion and possible action.

 

It is recommended that AZELA include a line for donations to the Frank Fanning Fund and a link for making direct donations online to the Fund on the annual AZELA membership renewal form.

 

 

  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 Board Meeting Date: June 30, 2017.

 

 

 

Posted in 2017 Monthly CLE Meetings