November

NOTICE AND AGENDA FOR

AZELA Membership/CLE MEETING

Friday, November 17, 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.

 

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 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

 

Douglas v. Xerox Business Services, LLC, 2017 WL 5474213 (11-15-17)

and Alonzo v. Akal Security Inc., 2017 WL 5158576, case # 2:17 CV 836 PHX JJT (11-7-17) (Emily Johnson & Nick Enoch for Plaintiff, Sonya Boun for Defendant): To determine compliance with the FLSA minimum wage requirements, the measure is what the total wages were for workweek divided by the number of hours worked, rather than what the wage was for each individual hour of the workweek; in other words, the measure is not whether or not the minimum wage rate was paid for each individual hour worked, but rather whether the hourly rate for the entire workweek met the minimum wage. In this case, Xerox call center employees were paid in part by per task rates and for some hours of the workweek earned less than min. wage, but Xerox would add to wages each workweek enough so that employees were paid at least the min. wage based upon the total hours worked in the week.

 

Huhmann v. Federal Express Corporation, 2017 WL 4974749 (11-2-17): Returning service member brought action alleging that employer’s failure to pay him higher signing bonus violated Uniformed Services Employment and Reemployment Rights Act (USERRA).  After bench trial, 9th Circuit affirmed judgment for plaintiff finding that, had he not left employer for military duty, he most likely would have qualified for and received a certain bonus.  Good explanation of burdens of proof in USERRA cases when returning service member claims he has lost some benefit or pay as a result of his leave that he would have received had he not left for service.

(reviewed by Dan Bonnett)

 

Morales v. Fry, 873 F. 3d. 817, 827 (10-16-17): Plaintiff demonstrator filed 42 USC 1983 claim against Seattle police officer alleging excessive force was used against her. The jury returned a verdict for plaintiff on the claim, but awarded her zero damages. Court then amended verdict to nominal sum of $1.00. Plaintiff sought attorney’s fees totaling $298,762.  District Court awarded $165,405 in attorney’s fees, which award was affirmed on appeal. The Ninth Circuit stated:

“The Ninth Circuit has adopted Justice O’Connor’s concurrence in Farrar v. Hobby, which set forth three factors a district court should consider in determining whether a plaintiff succeeded in some way beyond the judgment for nominal damages. See Mahach-Watkins, 593 F.3d at 1059 (citing Farrar v. Hobby, 506 U.S. 103, 121 (1992) (O’Connor, J., concurring)). The three factors are: (1) the difference between the amount recovered and the damages sought, which in most nominal damages cases will disfavor an award of fees; (2) the significance of the legal issue on which the plaintiff claims to have prevailed; and (3) whether the plaintiff accomplished some public goal. Id. (citing Farrar, 506 U.S. at 121 (O’Connor, J., concurring)). We have held that “where the district court properly has weighed these three factors, the resulting award of attorney’s fees is not an abuse of its discretion.” See id. at 1060 (internal quotation marks and citation omitted).”

The Court also held that with respect to the qualified immunity defense in 42 USC 1983 claims, whether or not a particular federal constitutional right is clearly established is always a question of law for the court to decide, not a jury question.

 

Clemens v. Qwest Corporation, 2017 WL 5013661 (11-3-17): District court was authorized, in its sound discretion, to permit equitable gross-up adjustment to compensate successful former employee for his increased income-tax liability resulting from his receipt of back-pay award in one lump sum in his action against former employer for retaliation in violation of Title VII. Where District Court failed to exercise such discretion, case was remanded for reconsideration of request for adjustment based upon income tax liability from judgment sum(s).

(reviewed by Suzanne Dohrer)

 

Jeffries v. Las Vegas Metropolitan Police Department, 2017 WL 4653434 (10-17-17):

“The district court did not err in considering the exhibits attached to the Department’s motion for summary judgment.  On a motion for summary judgment, a district court may consider inadmissible evidence as long as the evidence could be presented in an admissible form at trial.  Fraser v. Goodale, 342 F. 3d 1032, 1036-37 (9th Cir. 2003).  Similarly, a district court’s consideration of unauthenticated evidence on a motion for summary judgment constitutes harmless error if a competent witness with personal knowledge could have authenticated the evidence.  Hal Roach Studios, Inc. v. Feiner & Co., 896 F.2d 1542, 1551 (9th Cir., 1990).”

 

Shin v. Uni-Caps, LLC, 2017 WL 4772560 (10-23-17): Summary judgment for employer on FLSA OT claim by lawful resident alien reversed because, inter alia:

“3.  The district court abused its discretion in applying the doctrine of judicial

estoppel when determining that Plaintiffs were subject to the bona fide executive

exemption to the FLSA’s overtime provision.  Hamilton v. State Farm Fire & Cas.

Co., 270 F.3d 778, 782 (9th Cir. 2001).  Plaintiffs’ immigration applications were

almost entirely predictive of what their job duties would be and were not descriptions of their actual job duties during the time period at issue.  Therefore,

Plaintiffs’ description of expected managerial duties is not “clearly inconsistent”

with their claim that they were not exempt employees.  Id.”

 

Cheatham v. City of Phoenix, 2017 WL 4708283 (10-18-17) (Stephen Montoya for Plaintiff, Littler Mendelson for Defendant): Deputy chief for Phoenix Fire Dept. filed Title VII retaliation claim alleging that he was given an undesirable transfer after reporting hostile environment discrimination:

“In March 2009, Cheatham became Deputy Chief of South Shift Command,

which was located near the Station One fire station.  Between November and

December 2009, Cheatham reported to his supervisor multiple incidents involving

sexually explicit conduct in and around Station One, including: (1) a jar found in

Station One displaying two cartoon drawings of male genitalia; (2) a nacho cheese

machine with a similar drawing in the Station One kitchen; (3) a t-shirt with a

similar drawing at a gym shared between South Shift Command and Station One;

(4) an identical t-shirt being worn in a common area; and (5) an envelope delivered

to Cheatham’s office containing two pieces of pasta resembling male and female

genitalia.  In March 2010, about four months after the last of these incidents,

Cheatham was informed that he was being reassigned to Deputy Chief of Safety.

Cheatham filed this suit, claiming that his reassignment was unlawful retaliation

for his opposition to a hostile work environment under Title VII.”

 

The Ninth Circuit upheld summary judgment for the City, stating that there was insufficient evidence to prove that there was severe or pervasive sexual harassment hostile environment either subjectively or objectively.

 

Interesting FLSA Issue

 

Question: When a non-exempt (hourly wage) employee has a paid holiday or sick day and then actually works an additional day during that week so that he is paid for 48 hours for that week but has actually “worked” for 40 hours, does the paid day-off count in determining whether the employee has worked more than 40 hours per week in order to determine whether they are entitled to time and a half pay for eight hours for that week?

Answer: 29 C.F.R. § 778.218 states:

“Payments which are made for occasional periods when the employee is not at work due to vacation, holiday, illness, failure of the employer to provide sufficient work, or other similar cause, where the payments are in amounts approximately equivalent to the employee’s normal earnings for a similar period of time, are not made as compensation for his hours of employment. Therefore, such payments may be excluded from the regular rate of pay under section 7(e)(2) of the Act and, for the same reason, no part of such payments may be credited toward overtime compensation due under the Act.” See also Balestrieri v. Menlo Park Fire Prot. Dist., 800 F.3d 1094 (9th Cir. 2015) (Payments by fire department to firefighters for their unused annual leave time were not part of their “regular rate” of pay, and thus, was excluded from the overtime compensation computation under the FLSA; such buybacks either qualified as payments made when no work was performed due to illness, or as cashouts of annual leave).”

 

29 C.F.R. § 778.219 discusses this issue too.

 

Therefore the employee need not be paid 1.5 times his hourly rate for the last 8 of the 48 hours he has been paid for.

(submitted by Jeffrey Silence)

 

U.S. District Court for Arizona cases

 

Marsteller v. M D Helicopter, Inc., 2017 WL 5479927, case # 2:14 CV 1788 PHX DLR (11-15-17): (Heather Donnell for Plaintiff, Leah Freed for Defendant): Plaintiff brought FCA retaliation claim, 31 USC 3730(h), against employer. Xlnt discussion of when the Court may seal documents filed or to be filed.  The Court denied unopposed cross-motions to seal portions of documents to be filed in motion(s) for summary judgment, finding that parties did not meet their high burdens for sealing, and stating the burdens as to documents related to dispositive motions and documents related to tangential motions.

 

Denogean v. San Tan Behavioral Health Services LLC, 2017 WL 4922035, case #2:16 CV 3573 PHX DGC (10-31-17) (Guy Knoller for Plaintiff) (Christian Beams and Daniel Fredenberg for Defendant) (Bad lawyering by employer’s counsel): Plaintiff was fired after reporting to her superior her suspicion of health care billing fraud by employer.  She filed claims of (1) wrongful termination-whistleblower (ARS 23-1501(A)(3)(c)(ii), and (2) retaliation in violation of the False Claims Act (“FCA”), 31 USC 3730(h). Employer filed counterclaim for abuse of process for having filed lawsuit for improper purpose.  Plaintiff moved to dismiss counterclaim, and employer moved for summary judgment on complaint.  Judge Campbell granted motion to dismiss counterclaim and denied motion for summary judgment on complaint. Employer’s positions on almost all issues were clearly meritless and unsupported by law.  Holdings include:

  1. The abuse of process counterclaim was dismissed because this tort does not apply to the filing of a claim or lawsuit, but rather is limited to some discrete act done during the course of (already commenced) litigation.
  2. Plaintiff presented evidence that she had a reasonable belief that billing fraud had occurred, and did not have to prove that such fraud had occurred for an EPA claim.
  3. Employer argued that another employee was the first to report belief in billing fraud and only the first reporting employee is protected by the EPA; the Court rejected such argument stating that there was no such limitation.
  4. There was sufficient evidence of a causal connection between the whistleblowing and the termination because the Plaintiff was fired seven days after reporting the suspected billing fraud to her employer.
  5. The employer argued it was entitled to summary judgment because it stated it fired Plaintiff for an alleged HIPAA violation (sending a patient record to her personal e-mail so she could work on the file at home) irrespective of the whistleblowing. The Court held that this presented fact questions as to whether there had in fact been a HIPAA violation and whether the employer had a pattern of lax enforcement of HIPAA among its employees which laxness would have undermined this given reason for termination.
  6. An employee may bring an FCA retaliation claim without an accompanying or parallel FCA relator claim (seeking damages on behalf of the U.S. government for having paid false claims by the employer); (this argument had no support whatsoever in the law).
  7. Plaintiff had failed to provide her damages calculations in her disclosures as required by FRCP Rule 26(a), and employer moved to dismiss on the grounds that such evidence would have to be excluded under FRCP Rule 37(c)(1). Plaintiff conceded failure to timely disclose, but pointed out that she provided such evidence during the course of discovery and then had produced a computation of damages a month after the close of discovery. The Court denied summary judgment on this basis since the calculations were disclosed albeit well after due date because there was no prejudice to the employer.

(reviewed by Guy Knoller)

 

CrossFit Incorporated v. Martin, 2017 WL 4224093, 15, case # 2:14 CV 2277 PHX JAT (9-22-17) (CA counsel for both parties):

“Defamation claims may be actionable against an employer for comments on employment performance. But the statement that Defendants’ performance was subpar is not inherently factual, and the party hearing such a statement would reasonably assume that it merely represented the employer’s opinion. Indeed, in an employment relationship, the employer is regularly called on to give an opinion of the employee’s dedication, diligence, and performance, and courts have generally found analogous statements to be less than what is necessary for a defamation claim. See, e.g., Conkle v. Jeong, 853 F. Supp. 1160, 1166 (N.D. Cal. 1994), aff’d, 73 F.3d 909 (9th Cir. 1995) (finding that comments that employee acted like she was management and was too radical, difficult, and more trouble than she was worth were statements of opinion because they did not imply a provably false factual assertion); Jaramillo v. Food 4 Less Madera, No. CV F 10-1283 LJO GSA, 2010 WL 4746170, at *8 (E.D. Cal. Nov. 16, 2010) (noting that in most jurisdictions, a comment on an employee’s job performance is not actionable unless it falsely accuses an employee of criminal conduct, lack of integrity, incompetence or reprehensible personal characteristics or behavior, even when employers’ perceptions about an employee’s effort, attitude, performance, potential or worth are objectively wrong). The Court finds that none of the statements alleged by Defendants are actionable for defamation, and Plaintiff is entitled to summary judgment as to Defendants’ defamation counterclaim for this reason.”

 

RAMc Query: In a defamation case, how does a party prove a plaintiff’s reputation in light of the general prohibition on hearsay evidence while using Federal Rules of Evidence Rules 405(a) and 803(21)?

(reviewed by Kraig Marton)

 

 

Zuniga v. Fiesta Pediatric Therapy Incorporated, 2017 WL 4337344, case #2:15 1978 PHX DKD (Kraig Marton & Jeffrey Silence for Plaintiff, Christopher Mason for Defendants): Convoluted FLSA case herein healthcare worker suspecting misconduct by employer had provided copies of billing documents to AHCCCS and AZ Board of Occupational Therapy. The employer filed cross-claims for (a) violation of the Computer Fraud and Abuse Act, 18 USC 1030 (“CFAA”), (b) “misappropriation”, and (c) breach of fiduciary duty to employer. The Court granted the employee’s motion for partial summary judgment dismissing these claims because:

(a) CFAA claim: Merely accessing a patient file by an employee did not violate the CFAA, there was no evidence of any harm to the employer, nor any evidence that she removed or stole a patient file; and

(b & c) State law claims: The Court cited statutes granting immunity for persons providing evidence or information to these state agencies.

 

Mack v. Pinetop-Lakeside, Town of, 2017 WL 4480741, case # 3:16 8161 PCT SRB (10-5-17) (Chris Houk and Geoff Morris for Plaintiff, Justin Pierce and Kylie TenBrook for Defendants): Plaintiff Johnny Mack (African-American) was (and still is) employed by the Town of Pinetop-Lakeside Public Works Dept. for over twenty years.  Knowing he feared snakes, on August 10, 2015, David Davis, a co-worker on assignment from a temporary agency, placed a snake inside the Town sweeper Mack was using with the knowledge of other Town employees.  They watched as Mack got into the sweeper and was shocked and scared by the snake which suddenly appeared to him, while Davis and the other employees watching laughed. Mack suffered chest pain from the incident which caused him to miss some work thereafter and to file a worker’s compensation claim. After the snake incident, Mack met with Town Councilperson Leslie Wessell who he had known for a long time.  He told Wessell about the snake incident and told her that his supervisor Matt Patterson had used the terms “nigger-rigging” and “dirty Indians” at work.  He was especially offended by Patterson’s use of the term “dirty Indians” because his wife is Native American. The next day, Councilperson Wessell reported their conversation to Town Manager Evie Racette, who agreed to investigate.  Patterson admitted that he had used the terms “nigger-rigging” and “afro-engineering” at work, and Ms. Racette issued him a written warning, and later suspended Patterson for two weeks for continued use of racial slurs.   Davis likewise confessed to putting the snake in Plaintiff’s truck, but insisted that it was a prank.  Ms. Racette issued Davis a verbal warning and notified the temporary employment agency that had assigned him to work for the Town about the snake incident.  Plaintiff also stated that he had complained to Ms. Racette about Mr. Patterson’s use of racial slurs in the workplace in August 2015, but that Ms. Racette failed to do anything to address it.  Judge Bolton granted summary judgment for the Defendants on all claims.

Holdings:

(1) Mack’s Title VII and 42 USCV 1981 claims were based upon “hostile environment” based upon race. The Court held that the acts alleged did not rise to the level or “severe or pervasive”, and thus did not meet the threshold for a hostile environment claim:

“Defendants seek summary judgment based on the third element. According to Defendants, Plaintiff’s hostile work environment claim is limited to four comments made in 2015 and 2016:

  1. Plaintiff overheard Mr. Patterson use the term “dirty Indians”4;
  2. Plaintiff overheard Mr. Patterson ask who “nigger-rigged” a crack sealer machine;
  3. Plaintiff heard Mr. Patterson tell another employee, “Let’s go ahead and nigger rig it,” referring to the same machine; and

*3 4. Plaintiff heard Mr. Patterson tell another employee to “nigger-rig” a Bobcat broom.

(DMSJ at 6.) Plaintiff refers to additional evidence suggesting that Mr. Davis and Mr. Patterson frequently used racial slurs at work. While this is no doubt disturbing, Plaintiff nevertheless concedes that these four comments were the only racial slurs he actually witnessed. (Doc. 109, Pl.’s Opp. to DMSJ (“Pl.’s Opp.”) at 7.) Therefore, the question is whether those statements are sufficiently severe or pervasive for Plaintiff to proceed with his claim. They are not.”

 

(2) Mack had two retaliation claims, based upon (a) the placing of the snake in his sweeper, and (b) separate statements by Patterson, his supervisor, and by the Mayor and Ms. Racette (the Town Manager), that he believed were threats of termination:

(a) The Court dismissed the first retaliation claim because there was no evidence that those involved in the snake incident were aware of his complaints of race hostile environment to the Council member or Town Manager.

(b) Patterson’s statement did not constitute a threat or adverse employment action (“AEA”): “Plaintiff testified that Mr. Patterson confronted him about the write-up he received, but mentions no threat to terminate his employment. In fact, Plaintiff testified that he actually told Mr. Patterson he did not care if Mr. Patterson was upset and added, “If you want to fire me, you go ahead and fire me.” (Mack Dep. at 111:17-112:11.) Such an exchange would not dissuade a reasonable employee from complaining about discrimination.”

Likewise, the conversation Mack had with the Mayor and Town Manger did not constitute an AEA: “Threats to terminate employment may rise to the level of an adverse employment action if the circumstances so dictate. . . . None were made here. Plaintiff testified that Ms. Racette and Mayor Smith threatened his job during a meeting in which they told Plaintiff that he “did wrong” by complaining to Councilperson Wessel and that he “could have been fired” for doing so. . . .  Defendants cast these words as little more than a warning that Plaintiff must follow the chain of command when making work-related complaints.  No matter their characterization, they contain no objective threat to terminate Plaintiff’s employment. They simply state what could have, but never actually did happen. Even though Plaintiff subjectively understood this as a threat, the Court finds that Ms. Racette and Mayor Smith’s statements would not deter a reasonable employee from engaging in protected activity. See Burlington, 548 U.S. at 68.”

 

(3) The Court held that the “snake in the sweeper” incident did not rise to the level of outrageousness required for a claim of intentional infliction of severe emotional distress and dismissed that claim: “The Court thus finds that the snake incident, while highly inappropriate and inconsiderate, does not rise to the level of extreme and outrageous conduct.”

 

(4) The Court distinguished cases from other jurisdictions and held that the three racial comments by Patterson (sec. (1) holding, supra) did not rise to the level of outrageousness required for a claim of intentional infliction of severe emotional distress and dismissed that claim because “Their offensive nature notwithstanding, none of the racial slurs presented here were made to or about Plaintiff. The Court accordingly finds that they cannot reasonably constitute extreme and outrageous conduct.)

 

Huddleston v. Scottsdale Healthcare Hospitals Incorporated, 2017 WL 5192936, case # 2:17 CV 2690 PHX JJT (11-9-17) (for Plaintiff, for Defendant): Hospital executive was employed pursuant to a written contract that included a non-compete clause, and a nine-month severance package in the event that he was involuntarily terminated.  He was later fired and not given the severance package, so he sued in the MCSC bringing state law claims. Employer removed case to District Court, and then moved for dismissal on the grounds of ERISA preemption of state law claims, and failure to state a claim under ERISA since he failed to exhaust his administrative remedies under ERISA.  The District Court dismissed the complaint, with a clear explanation of when state law claims are (and are not) preempted by ERISA:

“Complete preemption under § 502(a) is “really a jurisdictional rather than a preemption doctrine, [because it] confers exclusive federal jurisdiction in certain instances where Congress intended the scope of a federal law to be so broad as to entirely replace any state-law claim.” Marin Gen. Hosp. v. Modesto & Empire Traction Co., 581 F.3d 941, 945 (9th Cir. 2009). The Supreme Court has formulated a two-prong test to determine whether a state-law cause of action is completely preempted: (1) “an individual, at some point in time, could have brought [the] claim under ERISA § 502(a)(1)(B),” and (2) “there is no other independent legal duty that is implicated by defendant’s actions.” Id. at 946 (quoting Aetna Health Inc. v. Davila, 542 U.S. 200, 210 (2004)). “A state-law action is completely preempted by § 502(a)(1)(B) only if both prongs of the [Davila] test are satisfied.” Id. at 947.”

(reviewed by Kevin Koelbel)

 

 

Arizona Court of Appeals case

 

Mesa Airlines, Inc. v. Condon, 2017 WL 4638171, AZ Ct or Apps case # 1 CA-CV 16 326 (10-17-17) (Eric Lynch for Plaintiff employer, Daryl Williams for Defendant employee): Airline hired pilot (on at-will basis) who needed additional training to qualify for position, and airline agreed to pay cost of such training in exchange for pilot signing promissory note for cost of such training which note would be discharged after one full year of employment after completion of the training but if ceased employment before the year was completed, he would have to repay the amount of the note subject to proportional reduction/amortization for the time worked after completion of training.  Summary judgment for the Plaintiff employer was affirmed. Court of Appeals held that (1) the agreement did not abrogate the pilot’s at-will status by compelling him to work for a full year after training since the pilot could quit at any time subject to the agreed upon training debt, and (2) the sum owed was not an impermissible penalty liquidated damage but instead the actual damages suffered by the airline, and (3) the sum owed pursuant to the note was a legitimate deduction from his final paycheck based upon the terms of the note and was therefore a permissible deduction under ARS 23-352(2).

 

Useful cases from other jurisdictions

 

Donlin v. Petco Animal Supplies Stores, Inc., 2017 WL 4541362 (D.N.M., 2017) (New Mexico counsel for Plaintiff, Shawn Oller 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.

 

Castleberry v. STI Group, 863 F. 3d 259 (3rd Cir., 2017): 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]general 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.

Morales v. MW Bronx, 2017 WL 4444663 (S.D.N.Y., 2017): Three plaintiffs filed FLSA claims and recovered a total of $6,976.63 in damages.  District Court approved award of attorney’s fees of $29,462.50, stating that such fees need have no relation to damages recovered because of statutory intent to create incentive for lawyers to take FLSA cases even where small sums are sought.

Waverly Heights, Ltd. v. Unemployment Compensation Board of Review, 2017 WL 5241175 (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.

Conclusion of Membership Meeting

 

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

rogmckee@cox.net to request it.)

 

2017-2018 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:

 

December 8

January 19

AZELA Annual Convention Friday Feb. 23, 2018

March 23

April 27

May 18

June 22

August 24

September 21

October – TBD

November 16

December 14

 

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, November 17, 2017, at 1:35 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.)

 

Attend Telephonically:

  • 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 (1:30 pm)

 

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

 

  1. Review and approval of minutes of Board meeting on October 27, 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.  Highlights of NELA lobbying webinar and takeaways.  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. Opposition letter to HR 3441 (attached and update)

 

  1. Unfinished Business

 

  1. Monitoring and Policing Listserv Access and Eligibility for Membership (Roger McKee). Discussion and possible action.

 

  1. New Business

 

  1. 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.

 

  1. Ethics/Practice Pointers at CLE Programs (Jarrett Haskovec/ Mishka Marshall). Discussion on presentation of cases involving questionable attorney actions, decisions, and omissions at AZELA CLE programs for ethics credit and concern about potential claims of liability (even if meritless) and potentially discouraging potential recruits from joining.

 

It is recommended that, during any CLE program sponsored or sanctioned by, or offered through, AZELA, no AZELA officer, director, member or other person authorized by AZELA to conduct or review cases at such meetings shall refer to cases or instances of “bad lawyering” or employ any similar, negative characterization or label in describing the attorney(s) involved or the attorney’s (or attorneys’) competence or quality of representation or work product, generally or in a specific case.  This shall not preclude any recitation or restatement of the facts of the case, including the court’s findings, discussion, or commentary as to the attorney’s acts or omissions, nor shall it preclude any analysis or opining as to what the attorney could have done differently to obtain a different result or avoid the issues presented in that case, so long as the above characterizations are avoided.

 

OR

 

It is recommended that any discussion of cases during case reviews at AZELA monthly CLE meetings shall not include any critique, critical analysis, or negative characterization of any individual attorney’s lawyering, handling of a case, or work, quality, competence, or ethics, either in such case or generally.

 

  1. Member Survey at Convention (Jarrett Haskovec). Discussion on revising or updating member survey previously presented to the members and asking members to complete the surveys at the upcoming.  Reference of matter to ad hoc committee for purposes of revising and updating survey ahead of convention.

 

It is recommended that an ad hoc committee, consisting of [names of members], be formed for the purpose of drafting and/or revising a survey for members addressing AZELA’s activities and functions and member priorities.  The survey, as approved by the ad hoc committee, will be administered at the upcoming AZELA convention.

 

  1. 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 since last board meeting in connection with discussion and vote on raising pay of CLE chair that prompted proposed changes.  Discussion and possible action.

 

  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. Next Regular Board Meeting Date: December 8, 2017

 

 

Posted in 2017 Monthly CLE Meetings