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The Fourth Circuit affirmed the district court's grant of summary judgment to the employer in an action alleging that the unauthorized review and disclosure of plaintiff's confidential personnel files to support her racial and religious discrimination claims constituted protected activity under Title VII. The court held that, under the opposition clause, unauthorized disclosures of confidential information to third parties are generally unreasonable. In this case, plaintiff's unauthorized review and duplication of confidential personnel files did not constitute protected opposition or participation activity. The court also held that section 704(a) of Title VII of the Civil Rights Act does not protect a violation of valid state law that poses no conflict with Title VII. The court explained that, like in plaintiff's opposition claim, she failed to meet her burden of proving that the sheriff terminated her employment because she engaged in protected activity. View "Netter v. Barnes" on Justia Law

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Kerr was employed by the federal agency since 1980. Following adverse personnel actions, Kerr alleged sex and religious discrimination and retaliation before the agency’s Equal Employment Opportunity office. Kerr subsequently challenged her 2006 removal and the earlier adverse personnel actions before the Merit Systems Protection Board (MSPB), citing Title VII and retaliation under the Whistleblower Protection Act (WPA), 5 U.S.C. 1201. The MSPB indicated that it lacked jurisdiction over the less-serious personnel decisions and gave Kerr the opportunity to present her removal-related claims to the agency’s EEO office or have the MSPB decide them. Kerr chose the EEO office. The MSPB dismissed Kerr’s appeal without prejudice. The EEO office rejected Kerr’s discrimination claims and concluded that the WPA claim was not within its jurisdiction, telling Kerr that she could not appeal the constructive discharge claim to the EEOC, but could either appeal to the MSPB or file suit. Kerr filed suit. On remand from the Ninth Circuit, the government first argued that the court lacked jurisdiction over Kerr’s WPA claim because she failed to exhaust her administrative remedies by MSPB review. The district court dismissed the WPA claim. A jury returned a defense verdict on the discrimination claim. The Ninth Circuit affirmed. The Supreme Court denied certiorari. The MSPB rejected Kerr’s request to reopen, concluding that there was neither good cause nor equitable tolling for the untimely filing. The Federal Circuit reversed. Kerr did have a reasonable basis for thinking that the district court was an appropriate forum for all of her claims. The court noted the language of 5 U.S.C. 7702, Tenth Circuit precedent, and that the government did not warn Kerr she would waive her claim by failing to file at the MSPB. Kerr has demonstrated reasonable diligence and there is no prejudice to the agency. View "Kerr v. Merit Systems Protection Board" on Justia Law

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The Supreme Court affirmed the order of the circuit court dismissing constitutional challenges to the validity of the Kentucky Right to Work Act, 2017 Ky. Acts ch. 1, 15, holding that the trial court did not err. In 2017, the Kentucky legislature passed, and the Governor signed, the Act. The Act amended Ky. Rev. Stat. 336.130(3) to provide that no employee is required to become, or remain, a member of a labor organization, or to pay dues, fees, or assessments to a labor organization. Plaintiff-unions filed an action challenging the Act on several Kentucky constitutional grounds. Specifically, Plaintiffs claimed that the Act violated the Kentucky Constitution’s provisions requiring equal protection of the laws, prohibiting special legislation, and prohibiting takings without compensation and that the Act was improperly designated as emergency legislation. The trial court granted the Commonwealth’s motion to dismiss. The Supreme Court affirmed, holding that the Unions’ constitutional challenges to the Act were without merit. View "Zuckerman v. Bevin" on Justia Law

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Plaintiff, who was injured on the job, filed suit against his employer for retaliation and age discrimination. After the case proceeded to trial, the district court granted the employer's renewed motion for judgment as a matter of law at the close of the evidence on the retaliation claim, but sent the age discrimination issue to the jury. The jury returned a verdict for the employer. The Fifth Circuit reversed and remanded the adverse ruling on the retaliation claim, holding that, under Texas law, sufficient evidence of retaliation was presented to support submission to the jury under Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 451. The court reasoned that this outcome would be the same whether it considered the Continental Coffee list as "elements" or merely "factors." In this case, there was stark temporal proximity between plaintiff's injury and his termination, there was evidence to support the expression of a negative attitude and the treatment compared to similarly situated employees, and there was considerable evidence that would support a jury verdict in plaintiff's favor. View "Cristain v. Hunter Buildings and Manufacturing, LP" on Justia Law

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In the published portion of the opinion, the Court of Appeal noted that effective January 1, 2019, Code of Civil Procedure section 998 will have no application to costs and attorney and expert witness fees in a Fair Employment and Housing Act (FEHA) action unless the lawsuit is found to be "frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so." In regard to the litigation that predated the application of the amended version of Government Code section 12965(b), the court held that section 998 does not apply to nonfrivolous FEHA actions and reversed the order awarding defendant costs and expert witness fees pursuant to that statute. View "Huerta v. Kava Holdings, Inc." on Justia Law

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The Eighth Circuit affirmed the district court's dismissal of a class action brought by over 52,000 experienced and student over-the-road truck drivers, alleging claims under federal and state wage and hour laws. The court held that judicial estoppel was not applicable in this case and that Werner was not bound to previous statements in such a way that affected the outcome of the case. The court also held that, under the Fair Labor Standards Act (FLSA), the mileage-based payments were remuneration for employment and should be included in Werner's minimum wage calculation. Finally, the state law claims were foreclosed as well. View "Baouch v. Werner Enterprises, Inc." on Justia Law

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Siler was an EPA Special Agent, conducting criminal investigations, 1997-2016. Siler also operated a personal business, selling military collectibles. Siler failed to report that business, as required, used his government computer for personal business, and tried to intimidate a contractor with whom he dealt in conducting that business. That contractor filed a complaint. EPA placed Siler on leave. The Office of the Inspector General cleared Siler of criminal charges. After Siler’s supervisor told Siler things “looked good” for an eventual return to full duty, Siler became involved in an investigation into another supervisor, Ashe. Siler expressed fear of retaliation but stated that Ashe had been sleeping at his desk and had smelled of alcohol. Others testified similarly. Ashe retired before serving his suspension. Siler was investigated for conduct unbecoming an investigator, improperly using his government computer, and failing to report his outside business. Siler, 11 months shy of retirement eligibility, was terminated. He argued that removal was not reasonable and that his statements regarding Ashe constituted protected whistleblowing that caused retaliation. In discovery, EPA produced draft notices of proposed sanctions against Siler, which identified a different decision-maker than previously identified. Siler sought the emails to which these drafts had been attached. EPA sought to claw back the drafts, claiming attorney-client privilege. EPA produced no privilege log. The Merit Systems Protection Board found the drafts privileged and found that Siler would have been removed even without his protected disclosures. The Federal Circuit vacated. EPA did not prove that the allegedly protected communication was made in confidence to its attorney. The Board “may not simply guess what might happen absent whistleblowing.” View "Siler v. Environmental Protection Agency" on Justia Law

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The Customs and Border Patrol (CBP) Discipline Review Board sent Boss a proposed 30-day suspension based on disciplinary infraction charges: failure to follow a policy related to overtime sheets, failure to follow supervisory instructions, and conduct unbecoming a U.S. Border Patrol Agent. The deciding official interviewed witnesses and received arguments from the agency and Boss and sent a decision letter, concluding that Boss should be disciplined on all three charges, but reducing the suspension to 15 days. Boss requested arbitration. During the arbitration hearing, the deciding official admitted that he had considered three documents that had not been provided to Boss or his union. The documents were agency policies regarding administratively uncontrollable overtime pay. The arbitrator agreed that the agency violated the contractual due process provision, and vacated Charge One. The parties agreed that the undisclosed documents solely relate to Charge One. The arbitrator analyzed Charges Two and Three on their merits, apparently concluding that he need not address Boss’s contractual and constitutional due process arguments, concluded that the agency carried its burden of proof, and reduced the discipline to a 10- day suspension. The Federal Circuit affirmed. The arbitrator properly treated the three charges separately and independently. View "Boss v. Department of Homeland Security" on Justia Law

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Sihota worked for the IRS for over 25 years. A 2011 IRS audit determined that, in 2003, Sihota reported a loss based on her purported ownership of NKRS, which was actually owned by Sihota’s son. The parties reached a settlement: Sihota acknowledged she had “acted negligently … resulting in an underpayment of ... $5341.00.” Sihota paid the assessment and penalty. The IRS terminated her employment, stating that Sihota was charged with either violating 5 CFR 2635.809 or 26 U.S.C. 7804, which requires the IRS to terminate any employee who willfully understates their federal tax liability, “unless such understatement is due to reasonable cause and not willful neglect.” The Union invoked arbitration. A hearing was held four years after the IRS contacted the Union about scheduling. The arbitrator concluded that inclusion of the loss on her return was not willful neglect, reinstated Sihota’s employment, imposed a 10-day suspension, and held that Sihota was not entitled to back pay, citing laches and the scheduling delay. The Federal Circuit vacated and remanded, stating that it could not discern which charges were properly considered or would support the suspension. If the only charge before the arbitrator was under the statute, the arbitrator could not impose any penalty. While the Union’s delay is inexplicable and might have barred the claim if the IRS could show prejudice, after allowing Sihota’s claim to proceed, the arbitrator cannot rely on laches to reduce her back pay. View "Sihota v. Internal Revenue Service" on Justia Law

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The EEOC filed suit alleging that North Memorial violated 42 U.S.C. 2000e-3(a), by unlawfully retaliating against an employee. The district court granted summary judgment for North Memorial and dismissed the claim, concluding that North Memorial did not violate section 2000e-3(a) because it did not discriminate against the employee. The Eighth Circuit affirmed and held that the EEOC failed to establish a prima facie case of opposition-clause unlawful retaliation because merely requesting a religious accommodation was not the same as opposing the allegedly unlawful denial of a religious accommodation. The court reasoned that, when an employee or applicant requested a religious accommodation, and the request was denied by an employer such as North Memorial that accommodated reasonable requests that did not cause undue hardship, there was no basis for an opposition-clause retaliation claim under Sec. 2000e-3(a). The court held that the employee or applicant's exclusive Title VII remedy was an unlawful disparate treatment or disparate impact claim under section 2000e-2(a)(1). View "EEOC v. North Memorial Health Care" on Justia Law