October

NOTICE AND AGENDA FOR

AZELA Membership/CLE MEETING

Friday, October 13, 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)

 

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

 

Mois v. Wynn Las Vegas, LLC, 2017 WL 4480108 (10-6-17):  ADA accommodations: Unless it has been requested by the employee, leave without pay is not a “reasonable accommodation”:

“Wynn has failed to present evidence that it engaged with Mois to “discover the precise limitations and the types of accommodations which would be most effective” given her injury. Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1115 (9th Cir. 2000), rev’d on other grounds, 535 U.S. 391, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002). Further, Wynn has not shown that assigning Mois to light duty work, as it had done in the past, would have created an “undue hardship.” 42 U.S.C. § 12112(b)(5)(A); see also Dark v. Curry Cty., 451 F.3d 1078, 1088 (9th Cir. 2006). Therefore, placing Mois on unpaid leave was not a reasonable accommodation. Compare Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999) (holding that unpaid medical leave may be a reasonable accommodation where requested by an employee), with Arizanovska v. Wal-Mart Stores, Inc., 682 F.3d 698, 704 (7th Cir. 2012) (holding, in the context of a retaliation claim, that “[b]eing forced to take an unpaid leave of absence” is an adverse employment action).”

 

Flores v. City of Westminster, 2017 WL 4532462 (10-11-17): 9th Circuit affirms large jury verdicts for three Hispanic police officers who sued the City and successive police chiefs for employment discrimination by race and retaliation, alleging various claims under CA state law and 42 USC 1981.  The officers alleged a long term-pattern of being denied certain assignments for which they were well qualified which would have increased their prospects for promotions, denial of promotions, and retaliation based upon internal discrimination complaints.  Key holdings:

(1)  A five-month gap is sufficient temporal proximity to infer retaliatory intent.

(2) The police depts. inconsistent application of its policies to its officers is evidence of discriminatory or retaliatory intent.

(3)  A series of negative actions may be enough to show the first element of retaliation when taken together even though the individual discrete acts may fall below the threshold for an “adverse employment action”. [RAMc note: see also Thomas v. County of Riverside, 763 F. 3d 1167 (9th Cir., 2015) on this point.]

(4) Evidence against certain individual police chiefs was sufficient to hold them liable for both compensatory damages and punitive damages for violating officers’ rights under 42 USC 1981.  [RAMc note: While local government entities and local government officials may be held liable for violations of 42 USC 1981, states and state officials are immune from 42 USC 1981 claims.  Pittman v. State of Oregon, 509 F. 3d 1065 (9th Cir., 2007).

(reviewed by Joshua Carden)

 

Roybal v. Toppenish School District, 2017 WL 4159186 (9-20-17): School principal filed claims under 42 USC 1983 for, inter alia, reducing his salary during his term of employment without providing the pre-termination due process provided for public employees by Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S. Ct. 1487, 84 L.Ed .2d 494 (1985), because the school district failed to comply with an Washington statute regarding notice.  The Court held that there was no claim for a Loudermill violation since (1) the Washington statute required more than the minimal requirements of Loudermill, (2) the notice and opportunity to be heard he had in fact received satisfied Loudermill, and (3) Loudermill is not expanded by local laws giving greater employee protections.

 

Fuller v. Idaho Dept. of Corrections, 865 F. 3d 1154 (7-31-17): This public employee sex discrimination case is 27 pages long and includes a spirited dissent. It arises from what began as a concealed romantic relationship among two Idaho Dept. of Corrections employees, which later became public when the relationship “went south” and the female employee accused the male employee of sexual assaults (occurring off the job).  Her claims arise from the IDOC response to her complaints of “hostile work environment” and sex discrimination as the two continued to work together at IDOC after she reported the assaults. [This case includes the difficult question of fact as to whether a consensual sexual relationship later became forcible.] The female Plaintiff filed claims Title VII claims of hostile work environment and sex discrimination against the IDOC, and 42 USC 1983 claims of equal protection (gender) against two of her supervisors. The District Court granted summary judgment to the IDOC and the supervisors, but the Ninth Circuit reversed.  Holdings:

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

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

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

 

U.S. District Court for Arizona cases

 

Morgan v. Freightliner of Arizona, LLC, 2017 WL 2423491, case # 4:16 498 TUC CKJ (6-2-17) (Ali Fahrang and Roberto Garcia for Plaintiffs, Steven Leach and David Potts for Defendants): (Bad Lawyering case)

(1) Title VII discrimination prohibits discrimination in employment “ . . because of such individual’s race, color, religion, sex, or national origin”.  Court dismisses Title VII claim of Mexican-American employee alleging discrimination based upon “color”, holding that “color” is distinct from and not the same as race or national origin, and there was no evidence that Plaintiff’s “color” motivated any discrimination.

(2)  Claim for unpaid overtime wages under AZ Title 23 dismissed since AZ statutes provide for overtime pay for public employees only.

 

Carpenter v. All American Games, LLC, 2017 WL 4517081, case # 2:16 CV 1768 PHX DGC (10-10-17) (out of state counsel for parties): Defamation claims by fired employee against employer and its Chairman (speaker).  Employer filed motion for summary judgment.

First claim:

“AAG, through its subsidiary Football University, LLC, operates a national youth football tournament and football camps in more than 20 U.S. markets, including camps in Phoenix, Seattle, Denver, and various cities in California.. .  Carpenter is a former AAG employee.. . . .  As AAG’s “West Coast Director,” Carpenter was responsible for recruiting athletes to participate in the camps in his region and recruiting teams to participate in the national tournament. . . .  Carpenter was being paid a base salary of $65,000 and was eligible to receive commissions based on his camp and tournament enrollment revenue. . . .

Carpenter was terminated on June 10, 2015. On the same day, AAG’s chairman, Douglas Berman, sent the following e-mail to 54 recipients:

Everyone –

As of this morning, AAG terminated its employment of Chad Carpenter. Without going further, this move was necessitated because of conduct that was violative of the norms of integrity and professionalism expected of members of the AAG community. We will be adjusting in the short term to execute the LA camp and coordinate the transition of other responsibilities for territories that Chad was responsible for.

Douglas Berman

Chairman/CEO, All American Games, LLC”

The Court denied the former employer’s motion for summary judgment as to this e-mail, finding disputed fact questions re (1) truth of statement, and (2) existence of qualified privilege.

Second claim:

Footnote 2:  Carpenter also asserts a claim based on alleged oral statements made by Berman and Carpenter’s supervisor to “notable NFL coaches,” in which they allegedly stated that Carpenter was fired for “stealing money and fixing the books, having an affair and just other bad stuff.” Doc. 39-1 at 5; Doc. 37-2 at 11. But Carpenter has presented no evidence of these oral statements other than his own declaration that various coaches called him and told him about the statements. The Court will not consider this testimony for the purpose of ruling on this motion because it is inadmissible hearsay. See Federal Rules of Civil Procedure 56 (declaration used to oppose a summary judgment motion must “be made on personal knowledge” and “set out facts that would be admissible in evidence”); Starr v. Pearle Vision, Inc., 54 F.3d 1548, 1555 (10th Cir. 1995) (third party’s testimony regarding allegedly defamatory statement made between two persons outside the third party’s presence is inadmissible hearsay).

 

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)

 

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.”

 

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.)

 

Arizona Court of Appeals cases

 

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

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

(reviewed by Monica Limon-Wynn)

 

Quintiliani v. Concentric Healthcare Solutions, LLC, 2017 WL 4288032, case # 1 CA CV 15 0816 (9-28-17) (Michael Pruitt and Nathaniel Hill for Plaintiff, Suzanne Ingold and Sarah O’Keefe for Defendants): Terminated female employee had a series of medical issues which resulted in multiple leaves of absence, and a hysterectomy.  She filed claims for interference with her FMLA rights, and ADA discrimination.

Re FMLA claim:  Case was tried to jury which returned verdict for employer.

There were disputed issues as to whether or not Plaintiff had been provided notice of her FMLA rights and whether she had given her employer proper notice of her exercise of such rights.  There were also issues presented re the FMLA jury instructions given.  Court of Appeals affirmed the jury verdict for the employer and found no error with the instructions given.

Re ADA claim: Superior Court granted pre-trial employer motion for partial summary judgment on this claim, which was reversed and remanded by Court of Appeals. Court found that employer had admitted Plaintiff was a “QUID” (qualified person with a disability) under the ADA and the only remaining fact question was whether she was terminated because of her disability or because she had “violated the company policy on absenteeism”.

“¶ 40 Proof of this third element (causation for termination) may be demonstrated by “the temporal sequence between the protected expression and the adverse action,” and may “thereby preclud[e] summary judgment on that ground.” MacLean v. State Dep’t of Educ., 195 Ariz. 235, 245, ¶ 36 (App. 1999) (internal quotation and citation omitted). Termination because of a disability may be inferred by timing alone “when adverse employment actions are taken within a reasonable period of time” after the employer learns of the employee’s disability or after the employee engages in protected activity. Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 507 (9th Cir. 2000); . . . .

¶ 41 Concentric terminated Quintiliani approximately one month after the surgical procedure that rendered her disabled, two weeks after she returned to the office from a modified on-call schedule, and four days after communicating her need for additional time off from work. Given this timeline, considered together with (1) the concession that Concentric was aware of the hysterectomy and (2) Jacob’s awareness of Quintiliani’s requests for accommodation of a modified work schedule, a jury reasonably could infer that Concentric terminated Quintiliani because of her health condition and her requests for a modified work schedule. . . . .  See Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1124 (9th Cir. 2000) (internal quotation and citation omitted) (recognizing that the degree of proof necessary to establish a prima facie case for an ADA claim “is minimal and does not even need to rise to the level of a preponderance of the evidence”). Based on the evidence provided in connection with the competing motions for summary judgment, a jury could reasonably find a causal connection between her disability and Concentric’s discharge decision.”

(reviewed by Denise Blommel)

 

Useful cases from other jurisdictions

 

Williams v. Superior Court, 5 Cal. 4th 531, 220 Cal. Rptr. 3d 472, 398 P. 3d 69 (2017): Plaintiff commenced class action for unpaid wage and hour violations by employer, and sought to compel employer to provide contact info for all of its employees who could be within the proposed class.  California Supreme Court that such discovery should be provided, and that neither employee or other employees had a right to privacy that would be violated by providing such data.

 

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

 

EEOC v. JBS USA, LLC, 2017 WL 3334648, 2017 U.S. Dist. LEXIS 122908 (D. Colo,. 8-4-17). The EEOC alleged that JBS USA, LLC (“JBS”), a meat packing company, discriminated against its Muslim employees because of religion by engaging in a pattern or practice of retaliation, discriminatory discipline and discharge, harassment, and denying its Muslim employees reasonable religious accommodations, to-wit: prayer breaks required by their religion.  The employer argued that such breaks adversely affected its production lines and admitted that it had contemporaneous production line documents that would show that such frequent breaks disrupted its production line.  However, the employer either lost or destroyed such records and the EEOC filed a spoliation sanctions motion. The Court granted the motion and barred the employer from presenting any evidence, testimony, or argument in its motions, at hearings, or at trial that unscheduled prayer breaks led to production line slowdowns or stoppages.

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

 

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

 

Castleberry v. STI Group, 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.

EEOC v. Day & Zimmerman NPS, Inc., 2017 WL 3613022, 2017 U.S. Dist. LEXIS 133918 (D. Conn., 2017):

Facts: Marsh was hired to work as an electrician at the Defendant employer’s nuclear power plant. He gave the employer a note from his doctor stating that he should not be assigned to work in an area where he would be exposed to radiation due to his lung disease, and requested a reasonable accommodation. In response, he was terminated. In his subsequent EEOC ADA charge, Marsh alleged that there would be no radiation exposure in 90% of the power plant area and therefore his request would have been a reasonable accommodation. In its investigation of the charge, the EEOC requested a list of all individuals employed as electricians at the nuclear plant during the period in question, including each individual’s name, job title, dates of employment, last known home address, and last known telephone number. The employer initially did not want to provide this list of contact information argued that the EEOC made the request for all of the electricians’ contact information to “engage[e] in a fishing expedition.”  The employer eventually provided the list and contact info to the EEOC, but soon thereafter sent out a letter to all those electrician employees who it had identified for the EEOC stating, inter alia:

 

“The [EEOC] has required [employer DZNPS] to provide a list of all electricians employed by DZNPS at [Millstone] during the Fall 2012 outage. The EEOC is specifically seeking each electrician’s name, job title, dates of employment, last known home address[,] and last known telephone number….The EEOC sought this information to investigate a charge of disability discrimination filed by Gregory Marsh. Mr. Marsh, a member of the [IBEW Local 35], was one of several electricians referred by his Union for hire during the Fall 2012 outage at Millstone. In his charge, Mr. Marsh alleges that his doctor told him he could not work in an area that had radiation, or be around radiation, chemicals or exposure. He further alleges that DZNPS failed to accommodate this disability because 90% of the Millstone plant, he claims, does not have radiation, and that he could have worked in an area without radiation, chemical or exposure. DZNPS denies the allegations made by Mr. Marsh, and specifically denies any wrongdoing or discrimination. As part of the EEOC process, an investigator has been assigned to evaluate the merits of Mr. Marsh’s allegations. It is our understanding that the investigator may contact you to inquire into your job responsibilities during the Fall 2012 outage. It is your decision whether you wish to speak with the investigator and your decision will not have an adverse impact on your current or future employment with DZNPS. DZNPS is committed to providing equal employment opportunities to all employees and applicants for employment without regard to race, color, religion, sex, national origin, age, disability, sexual orientation[,] or other status protected by applicable federal, state, or local law. DZNPS also prohibits any form of retaliation against an employee, including those who chose to participate in the EEOC investigation.

If you choose to speak with the EEOC investigator and would like to have a counsel for DZNPS present while you speak to the investigator, please let us know and we will make the necessary arrangements.

(The letter goes on to provide the contact information for DZNPS’s counsel at Littler Mendelson.) “

 

Marsh suffered some adverse consequences after the employer’s letter was sent out, and the EEOC eventually filed charges of (1) disability discrimination, and (2) ADA retaliation, and (3) ADA interference (the latter two based upon the letter) against the employer.  Both the EEOC and the employer eventually filed motions for summary judgment all of which were denied.

   Holdings:

(1) The employer’s letter was not protected First Amendment free speech.

(2) The employer’s letter was not protected by the “litigation privilege.

(3)  For the ADA retaliation claim, the Court held that the letter could be found to be an adverse employment action because of its effect upon Marsh in singling him out and identifying him as a person who had filed a complaint against the employer.

(4) There is a good discussion of what constitutes an “interference” claim under the ADA, and the Court held that a jury could find that the letter could interfere with the EEOC investigation into ADA discrimination at the plant by chilling the rights of other employees to speak freely with the EEOC.

(reviewed by Suzanne Dohrer)

 

Conclusion of Membership Meeting

 

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

rogmckee@cox.net to request it.)

 

2017-2018 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:

 

November 17

December 8

January – TBD

AZELA Annual Convention Friday Feb. 23, 2018

 

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.

 

 

Posted in 2017 Monthly CLE Meetings