Employment Defense Counsel

Federal Court Applies Iqbal Standard in Dismissing Age and Disability Discrimination Claims

2010-08-10T16:26:00.004-04:00

In Myers v. MAIF, the United States District Court for the District of Maryland applied the pleading standards established by the Supreme Court in Ashcroft v. Iqbal and dismissed the plaintiff's age and disability discrimination claims. The Court ruled that based upon the facts set forth in the Complaint the plaintiff had failed to set forth a "plausible" claim under either the ADEA or ADA. A copy of the case can be read here.

If you would like guidance or counsel defending employment discrimination claims under the ADEA, ADA, or other civil rights statute, please contact Eric Gunderson and/or visit the Farrell & Gunderson website.

City of Ontario v. Quon: Supreme Court Chooses Not to Address Employee's Expectation of Privacy In Using Employer-Provided Pagers and Cell Phones

2010-06-17T16:54:00.004-04:00

In its long-awaited decision in City of Ontario v. Quon, the Supreme Court today held that a government employer's search of records concerning an employee's use of an employer-issued pager was reasonable. However, the Court did not provide any guidance on the question of whether an employee has a reasonable expectation of privacy in his or her use of an employer-issued pager or cell phone when using it for personal reasons. The Court, rather, simply assumed for purposes of its analysis that an employee does have a reasonable expectation of privacy of such use, and expressly cautioned that its ruling should not be relied upon to define the existence and extent of such privacy expectation. This no doubt has left employers and their counsel disappointed. It was anticipated that the Supreme Court would provide some much-needed guidance on this issue so that employers can act accordingly in handling issues of employee use of work-issued cell phones and e-mail.

If you would like guidance or counsel on issues involving employee use of cell phones or e-mail, or other employee privacy issues, please contact Eric Gunderson and/or visit the Farrell & Gunderson website.

Isolated Age-Based Comment Not Enough to Prove Age Discrimination

2010-03-04T09:51:00.002-05:00

In Jackson v. Cal-Western Packaging Corp., the Fifth Circuit Court of Appeals upheld the lower court's grant of summary judgment on the plaintiff's age discrimination claim. In addition to the fact that the plaintiff was replaced by a younger employee, the plaintiff argued that age played a role in his termination because of a comment made by his supervisor a year prior when he referred to the plaintiff as an "old, gray-haired fart." The Court held that this isolated comment, made a year prior to the supervisor's decision to terminate the plaintiff, was not proximate enough in time to the termination to prove that age was a motivating factor. A copy of the decision can be read here.

If you would like guidance or counsel in defending a claim of age discrimination or other discrimination claims, please contact Eric Gunderson and/or visit the Farrell & Gunderson website.

Physician Allegedly Denied Hospital Privileges Becuase of His Race Cannot Assert Federal Section 1981 Claim

2010-02-19T10:22:00.000-05:00

In Jiminez v. Wellstar Health System, a federal Court of Appeals upheld the dismissal of a physician's suit against a Hospital brought under 42 USC 1981 for alleged racial discrimination in the denial of his hospital privileges. The Court held that the decision to deny the physician hospital privileges was not an act proscribed by Section 1981, in that it did not breach any contractual agreement with the Hospital itself, it did not interfere with the physician's right to contract with his patients, and did not deprive him of a property interest because he had no contractual or state law entitlement to practice medicine. A copy of the decision can be read here.

Since private physicians in most cases are not employed by the hospital where they may provide treatment to patients and, thus, are unable to assert claims of employment discrimination under Title VII or other similar employment-related civil rights laws, physicians may seek relief under other civil rights laws, such as 42 USC 1981, in connection with claims of alleged discrimination relating to their hospital privileges or other similar associations with a hospital. This decision is helpful in defending those types of claims on the grounds that these federal statutes are not implicated in those circumstances.

If you would like guidance or counsel in defending a claim of discrimination under 42 USC 1981 or any other civil rights statute, please contact Eric Gunderson and/or visit the Farrell & Gunderson website.

With Agreed Waiver from Employer of Certain Provsions of Mandatory Arbitration Agreement, Court Enforces Agreement and Dismisses Discrimination Suit

2010-02-19T09:39:00.003-05:00

In Ragone v. Atlantic Video, the defendant employer moved to dismiss the plaintiff's Title VII and State law discrimination suit on the grounds that her sole avenue of relief was arbitration as mandated by an Arbitration Agreement entered into between plaintiff and the defendant employer. Plaintiff argued that the Agreement was unconscionable and unenforceable in light of provisions which shortened the limitations period, permitted attorney's fees to be awarded in favor of the prevailing party, and prohibited the employee from appealing the arbiter's decision in court. The defendant employer, however, expressly agreed to waive these provisions in the agreement, and, relying on the severability clause of the Agreement, sought to enforce the remaining clauses of the Agreement. The Court, relying on the employer's agreed waiver of the challenged provisions of the Agreement, upheld the enforceability of the Agreement and dismissed the plaintiff's suit in favor of arbitration. A copy of the decision can be read here.

If you would like guidance or counsel in drafting or enforcing mandatory arbitration agreements, or otherwise defending discrimination claims, please contact Eric Gunderson and/or visit the Farrell & Gunderson website.

DC Federal Court of Appeals Holds Employee Cannot Invoke Benefit of Lily Ledbetter Fair Pay Act to Save His Untimely Failure to Promote Claim

2010-02-17T10:05:00.005-05:00

In a key decision addressing the application of the Lily Ledbetter Fair Pay Act to claims of discrimination, the federal DC Court of Appeals, in Schuler v. PricewaterhouseCoopers, LLP, held that the Act, which effectively extends the accrual of a claim of discrimination in compensation for statute of limitations purposes to any date on which a person is affected by the discriminatory decision, does not apply to a claim that the employer's decision not to promote the employee to a higher paying position was discriminatory -- commonly referred to as a failure to promote claim. In Schuler, the plaintiff filed suit in 2002 under the ADEA claiming that the decisions not to promote him in 1999, 2000, and 2001 were discriminatory based upon his age. The district court dismissed the 1999 and 2000 failure to promote claims as untimely since the plaintiff did not file a charge as to those claims within the 300-day limitations period. Relying on the Lily Ledbetter Act, the plaintiff argued that the affect of the 1999 and 2000 decisions not to promote him continued up to the filing of this charge, thus making his claims timely. The Court rejected the argument, holding that the Act, which expressly applies only to claims involving "discrimination in compensation" and involves a "discriminatory compensation decision," does not apply. The Court concluded that a decision not to promote an employee does not necessarily implicate compensation, therefore it does not fall within the meaning of a "discriminatory compensation decision." A copy of the decision can be read here.

This case, which rejected an attempt to expand the application of the Lily Ledbetter Act and its limitations-saving provisions, should prove helpful to employers defending untimely claims of discrimination.

If you would like guidance or counsel in handling and litigating failure to promote and other discrimination claims, please contact Eric Gunderson and/or visit the Farrell & Gunderson website.

Non-compete Provision in Employment Agreement Upheld, But Only Injunctive Relief, Not Damages, Awarded

2010-02-12T14:02:00.004-05:00

The United States District Court for the District of Maryland, in TEKsystems, Inc. v. Jonathan Bolton, granted relief to an employer who filed suit to enforce a non-compete provision contained in an employment contract of a key employee. Operating in the New York region, Mr. Bolton resigned from TEKsystems and began working for a similar job placement service in the same region. TEKsystems sued Mr. Bolton to enforce a provision in his contract that prohibited him from working for a competing company within 50 miles of its New York office for a period of 18 months. The Court held that the the scope of this non-compete provision was reasonable and that it is enforceable against Mr. Bolton. It rejected Mr. Bolton's argument that even if reasonable in scope the contract provision should not be enforced because it would cause him undue hardship by requiring him to work outside of the New York region.

The Court, however, denied TEK's request to award liquidated damages in an amount equal to the profits generated by Mr. Bolton during his employment with the competing business. The Court held that this liquidated damages provision was triggered only if TEK could show that Bolton generated profits from TEK's existing clients or customers, and that the profits generated by Mr. Bolton were shown to be from businesses who were not clients or customers of TEK. The Court did, grant, however, injunctive relief requiring Mr. Bolton to adhere to the non-compete provision for a period of 18 months from the date of the Court's decision. A copy of the decision can be read here.

This case provides an informative analysis of restrictive covenant law in Maryland, and could serve as helpful guidance in assessing and litigating these types of claims. It also provides guidance on critical issues to consider when drafting and negotiating non-compete provisions in employment contracts.

If you would like guidance or counsel in handling and litigating claims involving non-compete agreements and other employment contract provisions, please contact Eric Gunderson and/or visit the Farrell & Gunderson website.

Employee Who Had Multiple Sclerosis Not Disabled In Her Ability To Work and Being "Snubbed" and "Ignored" By Supervisors Was Not Unlawful Retaliation

2010-02-09T09:13:00.005-05:00

In Johnson v. Weld County, a government employee brought a Title VII and ADA claim against her employer alleging sex and disability discrimination. Following the lower court's entry of summary judgment on all of the plaintiff's claims, the federal Appeals Court held, inter alia, that the plaintiff, who had multiple sclerosis, was not a "person with a disability" within the meaning of the ADA because she was not substantially limited in her ability to work. Recognizing that her disease could no doubt progress and become more debilitating and likely limit her ability to perform certain functions of her job in the future, the court concluded, however, that at the time in question "despite her disease, [she] performed acceptable work."

The Court's holding in this respect highlights the importance of analyzing a person's limitation in their ability to engage in a major life activity (in this case work) even with a physical disability when considering a person's claim that they are entitled to certain rights under the ADA. Whether a person has a physical or mental disability is only part of the question -- the person must also be substantially limited in a major life activity.

In addition, the plaintiff claimed that shortly after she complained of discrimination her supervisors retaliated against her by giving her the cold shoulder, sitting farther away from her at meetings, and generally avoiding her. The Court held that though these alleged snubs were surely unpleasant and disturbing to the plaintiff, they are insufficient to support a claim of retaliation.

This case provides additional guidance, then, when making determinations as to whether a certain action is sufficiently adverse and material to support a claim of retaliation. Not all actions are sufficient to support a claim of retaliation, only those that are materially adverse.

A copy of this decision can be read here.

If you would like guidance or counsel in handling and defending disability and retaliation claims, please contact Eric Gunderson and/or visit the Farrell & Gunderson website.

Plaintiff's Employment Discrimination Suit Dismissed Because Plaintiff Did Not Notify Bankruptcy Court of Discrimination Suit

2010-02-08T16:42:00.007-05:00

In Robinson v. Tyson Foods, Inc., the Eleventh Circuit Court of Appeals upheld the lower court's dismissal of a plaintiff's employment discrimination suit in applying the doctrine of judicial estoppel. The Court concluded that the Plaintiff's failure to notify the bankruptcy court of her employment discrimination suit brought after initiating bankruptcy proceedings fell warranted dismissal of her employment discrimination action under the doctrine of judicial estoppel because she was taking inconsistent positions in two separate court proceedings. A copy of the decision can be read here.

This case is one of several recent cases where a court has dismissed an employment discrimination suit as a result of matters relating to a plaintiff's pending bankruptcy proceeding. It is important, then, for employers to thoroughly investigate a plaintiff's background and history of claims during discovery when defending a claim of employment discrimination. Oftentimes information uncovered can be useful and, in some cases, can perhaps provide grounds for seeking dismissal.

If you would like guidance or counsel in handling and defending discrimination claims, please contact Eric Gunderson and/or visit the Farrell & Gunderson website.

Federal Court Rejects Age Discrimination Claim of Employee Terminated Pursuant to Company RIF

2010-02-03T14:18:00.003-05:00

In Schoomaker v. Spartan Graphics Leasing, LLC, a federal appeals court upheld summary judgment of an employee's age discrimination claim. The employee was terminated pursuant to a RIF and claimed that she was chosen over other younger employees to be terminated because of her age. Recognizing that in the RIF context a plaintiff is required to present proof that age played a role in the decision to select her over other employees, the Court held that the plaintiff failed to meet that burden. At most, the Court concluded that the plaintiff had shown nothing more than the mere "fact of an age differential," which was not enough to get her case to a jury. A copy of the decision can be read here.

If you would like guidance or counsel in handling and defending ADEA claims, please contact Eric Gunderson and visit the Farrell & Gunderson website.

DC Circuit Court Holds Employee Who Has "Some Discretion" Meets Administrative Exception to FLSA Overtime Requirement

2010-01-06T15:22:00.005-05:00

DC Circuit Court, in Robinson-Smith v. GEICO, overturned a district court decision that an employee of GEICO, an auto damage adjuster, did not meet the administrative exception to the FLSA's overtime requirement. The district court had held that while the employee did perform her duties with "some discretion and independent judgment," the employee did not operate with sufficient discretion. The Circuit Court held that an employee who performs her duties with "some discretion and independent judgment" is sufficient discretion to meet the test for the administrative exception to apply. A copy of the decision can be read here.

Please visit the Farrell & Gunderson website and contact Eric W. Gunderson if you would like additional information or guidance on handling and defending FLSA claims.

Federal Court Holds That Plaintiff Asserting Claims of Discrimination Who Had Filed for Bankruptcy Did Not Have Standing to Sue

2009-12-29T10:39:00.003-05:00

A federal Court in the District of Columbia, in Marshall v. Honeywell Technology Solutions, Inc., dismissed a Plaintiff's discrimination lawsuit for lack of standing. The Plaintiff had filed for bankruptcy prior to filing the lawsuit and concluded that the bankruptcy trustee, not the Plaintiff, had standing to bring a lawsuit for discrimination. A copy of the decision can be read here.

Please visit the Farrell & Gunderson website and contact Eric W. Gunderson if you would like additional information or guidance on handling and defending employment discrimination claims.

DC Federal Court Holds Letter of Admonishment Does Not Rise to the Level of an "Adverse Action" Sufficient to Support Retaliation Claim

2009-12-15T17:03:00.003-05:00

In McGrath v. Clinton, the plaintiff asserted, among other claims, a retaliation claim based on having received a letter of admonishment from her supervisor after she filed an EEOC charge of discrimination. The United States District Court for the District of Columbia dismissed the claim without reaching the issue of whether there was any causal connection between the letter and the Plaintiff's protected actitivty, concluding that a letter of admonishment does not even rise to the level of a "materially adverse action" upon which a claim for retaliation could be based. A copy of the decision can be read here.

Please visit the Farrell & Gunderson website and contact Eric W. Gunderson if you would like additional information or guidance on handling and defending retaliation or other employment discrimination claims.

Supreme Court Will Hear Case On Whether Workers Have a Privacy Right in Text Messages Sent on Company Phone

2009-12-14T10:23:00.004-05:00

Today, in City of Ontario v. Quon, the Supreme Court granted cert in an appeal of a Ninth Circuit ruling that an employee police officer had a privacy right to text messages sent on a city police department phone. This case will likely provide additional guidance to employers on workplace policies and practices with respect to cell phone use, text messaging and email.

Please visit the Farrell & Gunderson website and contact Eric W. Gunderson if you would like additional information or guidance on employee privacy rights and workplace polices.

DC Federal Court Holds that Under COBRA Employer is Obligated Only to Send Notice to Last Known Address, Not to Ensure Employee Received Notice

2009-12-08T17:29:00.003-05:00

In Robinson-Reeder v. American Counsel on Educ., the federal district court for the District of Columbia rejected a former employee's claims that her employer violated COBRA by not sending her notice of her rights which resulted in her not obtaining COBRA benefits. The Court held that the record showed that the employer sent the notice to the employee's last known address, which is all it is obligated to do. It is not obligated to ensure that the former employee actually receives notice. A copy of the decision can be read here.

Please visit the Farrell & Gunderson website and contact Eric W. Gunderson if you would like additional information or guidance on rights and obligations under COBRA.

Maryland Court Finds Employer Not Liable for Severe Racial Harassment Where Employer Promptly Responded to Employee's Complaints

2009-12-08T17:09:00.003-05:00

The United States District Court for the District of Maryland, in EEOC v. Xerxes Corp., recently entered summary judgment in favor of an employer in a hostile work environment claim. The Court, though recognizing that the racial harassment complained of by the plaintiff was severe, found that the employer promptly and adequately responded to the numerous complaints of harassment. The employer's response consisted of careful investigations into the alleged harassment, disciplining employees, and retraining employees on its EEO policies. The decision can be read here.

Please visit the Farrell & Gunderson website and contact Eric W. Gunderson if you would like additional information or guidance on responding to workplace complaints of harassment or defending hostile work environment claims.

MD Court Dismisses Suit for Failing to File Within 90-Days of Receipt of Right to Sue Letter

2009-10-26T15:02:00.002-04:00

In Blakeney v. City of Annapolis, the United States District Court for the District of Maryland dismissed the plaintiff's Complaint in which she alleged various claims under Title VII. The Court held that she had failed to file her Complaint within 90 days of receiving notice from the EEOC that it had concluded its administrative proceedings with respect to her charge of discrimination. Often referred to as the Notice of Right to Sue, a plaintiff has 90 days from receipt of that written notice to file a lawsuit asserting Title VII claims. Plaintiff's argument that the time period should have been equitablly tolled was rejected by the Court. A copy of the decision can be read here.

Please visit the Farrell & Gunderson website and contact Eric W. Gunderson if you would like additional information or guidance on statutory requirements relating to Title VII claims.

Court Permits Homosexual's Gender-Stereotyping Claim to Proceed to Trial, But Not Claim Based on Sexual Orientation Harassment

2009-08-28T16:38:00.007-04:00

Acknowledging that Title VII does not prohibit discrimination and harassment based on sexual orientation, a Federal court held that a homosexual male -- just like a heterosexual male -- may pursue a claim of harassment based on gender stereotyping. Concluding that there was sufficient evidence of harassment based on gender stereotyping, the Court permitted the claim to proceed to trial. The Court did, however, reject the plaintiff's religious harassment claim on the grounds that the only basis for claiming harassment based on religion is that co-workers harassed the plaintiff because they believed that it is against their religion to be homosexual. The Court held that plaintiff's religious harassment claim, then, was truly a claim based on sexual orientation harassment, which is not statutorily prohibited. A copy of the decision can be read here.

Please visit the Farrell & Gunderson website and contact Eric W. Gunderson if you would like additional information or guidance on gender stereotyping or sexual orientation discrimination claims under Title VII.

Court Dismisses Constructive Discharge Claim Asserted for First Time In Complaint for Failure to Exhaust Administrative Remedies

2009-08-27T17:27:00.003-04:00

The US District Court for the District of Columbia, in Hudson v. Children's National Medical Center, dismissed a former employee's claim of constructive discharge discrimination on the grounds that plaintiff failed to exhaust his administrative remedies. The employee had exhausted administrative remedies through the EEOC with respect to his claim that he was not selected for a position because of his race, but asserted for the first time in his Complaint in federal court that he was also constructively discharged in violation of Title VII. The Court dismissed the constructive discharge claim and concluded that it was not substantially related to the non-selection claim to find exhaustion of administrative remedies. A copy of the decision can be read here.

Please visit the Farrell & Gunderson website and contact Eric W. Gunderson if you would like additional information or guidance on discrimination claims under Title VII.

Maryland Federal Court Rejects Plaintiff's Retaliation Claims

2009-08-27T16:29:00.003-04:00

In Carr v. Prince George's County, Maryland, the United States District Court for the District of Maryland entered summary judgment in favor of the Prince George's County Police Department on the plaintiff's discrimination and retaliation claims. Noteworthy is the Court's decision rejecting the former police officer's claims that she was retaliated against for having complained of discrimination and for filing a charge of discrimination with the EEOC. The Court found that there were not sufficient facts to show that the persons who made the decision to transfer the plaintiff to another unit within the department had knowledge of either her written complaint of discrimination or the EEOC charge at the time they decided to transfer her. The Court noted that knowledge of the protected activity by the decision maker is "absolutely necessary" to establish causation in a retaliation case. A copy of the decision can be read here.

Please visit the Farrell & Gunderson website and contact Eric W. Gunderson if you would like additional information or guidance on discrimination and retaliation claims under Title VII.

Back From Vacation

2009-08-24T16:27:00.003-04:00

I am back from vacation and am reviewing the recent decisions from the DC, Maryland and federal courts impacting employment law. I will post relevant decisions as soon as I am able.

Eric Gunderson
Employment Defense Counsel Blog

DC Court Holds Plaintiff's Claim of Discrimination Would Not Go the Jury Because It Was Based On Hearsay Evidence

2009-07-30T10:31:00.003-04:00

In Riggsbee v. Diversity Services, Inc., the federal District Court for the District of Columbia recently granted summary judgment for the employer, a temporary staffing agency, where the former employee's claim of discriminatory termination was based primarily on hearsay evidence. The Court concluded that the employee's allegations were not sufficiently supported or corroborated by legally admissible evidence. A copy of the decision can be read here.

DC Federal Court of Appeals Held Today that the ADA Amendments Act of 2008 Does Not Apply Retroactively

2009-07-21T16:53:00.002-04:00

In a decision released today, the Court of Appeals for the DC Circuit, in the case Lytes v. DC Water and Sewer Authority, held that the ADA Amendment Acts of 2008, which drastically amended the ADA in terms of defining who is entitled to protection from disability discrimination, does not apply retroactively. A copy of the decision can be read here.

Please visit the Farrell & Gunderson website and contact Eric W. Gunderson if you would like additional information or guidance on disability and accommodation claims under the ADA.

Maryland Federal Court Holds that Obese Employee Is Not Disabled Under the ADA, Nor Was He Regarded As Disabled By Employer

2009-07-16T11:24:00.007-04:00

Former Verizon service technician sued Verizon under the ADA claiming that they failed to accommodate his disability, i.e. his obesity, and caused his constructive discharge because he was obese. The Federal district court in Maryland, in Hill v. Verizon Maryland, Inc., held that the plaintiff's obesity was not a "disability" as that term is defined under the ADA because there was no evidence that it was caused by an underlying physiological condition, and the Court further held that even his obesity was deemed a disability he was not a "person with a disability" because there was no evidence that his obesity substantially limited the plaintiff in performing one or more major life activities. The Court noted that while his obesity may have caused him to perform his normal activities a bit slower or to a lesser degree than the average person, that does not mean that he his "substantially limited" in performing those activities.

The Court also rejected the plaintiff's argument that Verizon had a record of him being disabled because Verizon had documented his weight and various limitations in his activities as a result of his weight, but there was no evidence that Verizon had a record of plaintiff being substantially limited in performing a major life activity because of a disability. Similarly, the Court rejected the plaintiff's argument that Verizon regarded him as disabled because they were aware of his obesity on the grounds that merely acknowledging a physical impairment is not sufficient. The employer must have regarded the plaintiff has having an impairment that substantially limited a major life activity.

A copy of the decision can be read here.

Please visit the Farrell & Gunderson website and contact Eric W. Gunderson if you would like additional information or guidance on disability and accommodation claims under the ADA.

DC Circuit Holds Employee Waited Too Long to Report Sexual Harassment and that Alleged Retaliatory Acts Were Not Sufficiently Adverse

2009-07-14T13:21:00.007-04:00

In Taylor v. Solis, the United States Court of Appeals for the District of Columbia Circuit last week upheld summary judgment in favor of the Department of Labor, her employer, on the grounds that the plaintiff waited too long to report the sexual harassment that she alleges made her work environment hostile, and that when she did report the harassment the Department of Labor took prompt and reasonable steps in response. The Court noted that an employee has a "prompt reporting duty" under the law as interpreted by the Supreme Court, and that in her case waiting five or six months to report the harassment was not prompt.

Addressing the plaintiff's retaliation claim which was based on six separate alleged acts of retaliation, the Court concluding, in an important post-Burlington Northern analysis, that five of the six acts were not so materially adverse to support a claim under Title VII. The Court concluded that such acts as criticizing the plaintiff, slowing the processing of her work and giving her some additional job responsibilities, and lowering her performance evaluation were not so "materially adverse" to support a retaliation claim.

A copy of the decision can be read here.

Please visit the Farrell & Gunderson website and contact Eric W. Gunderson if you would like additional information or guidance on Title VII hostile work environment or retaliation claims.

Alien Worker Working Outside United States Is Not Protected By Title VII

2009-06-30T16:56:00.004-04:00

The United States District Court for the District of Columbia held, in Alipio v. Winter, that an employee who is not a citizen or national of the United States is an alien and that an alien who is employed outside the United States does not have standing to bring a Title VII claim. A copy of the decision can be read here.

If you would like additional information or guidance on employment rights of non-US citizens please visit the Farrell & Gunderson website and contact Eric W. Gunderson.

Federal Court Holds Oral Complaint Not a Protected Activity Under FLSA

2009-06-30T16:17:00.004-04:00

In Kasten v. Saint-Gobain Performance Plastics Corp., a Federal Court of Appeals rejected an employee's retaliation claim on the grounds that his verbal complaint that his employer was violating the FLSA was not a "protected activity." The Court concluded that under the plain language of the FLSA employers are prohibited from retaliating against an employee who has "filed any complaint" that asserts rights under the statute, and the Court interpreted this to mean that only those employees who file written complaints--not those who merely make oral complaints--are protected from retaliation. This is different from other employment civil rights laws, like Title VII, that prohibit retaliation in response to both written and oral complaints of unlawful conduct. A copy of the decision can be read here.

If you would like more information on defending FLSA claims please visit the Farrell & Gunderson website and contact Eric W. Gunderson.

DC Court of Appeals Dismisses Lawsuit Against Company Involving Stolen Company Laptop That Contained Plaintiff's Personal and Financial Information

2009-06-23T11:28:00.005-04:00

Plaintiff's sued retirement investment firm after employee of the firm had his laptop stolen from his home that contained confidential personal and financial information of the Plaintiffs. Plaintiff's claimed that firm was negligent in failing to properly supervise or control employee who did not implement any safety measures to ensure that personal information would not be acquired by a third party. The DC Court of Appeals upheld the trial court's dismissal of the lawsuit on the grounds that the plaintiff's were not able to allege a particular injury as a result of the alleged negligence. The Court held that the Plaintiff's were only able to speculate that their personal information might have been misappropriate or that their identity might have been stolen, but were not able to establish an actual injury. A cope of the decision can be read here.

Court Rejects ADA Claim of Employee Who Was Discharged for Threatening to Kill Supervisor

2009-06-23T10:26:00.003-04:00

A Federal court, in Bodenstab v. County of Cook, upheld judgment entered in favor of a county Hospital which terminated one of its staff physicians after the physician threatened to kill his supervisor and other co-workers. The physician sued the Hospital following his termination claiming that he was terminated because the Hospital regarding him as having a mental impairment that caused him to threaten his co-workers. The Court held that not only did the physician fail to produce evidence that a co-worker who was not regarded as disabled was not terminated for engaging in similar misconduct, but he also failed to produce any evidence tending to prove that the Hospital's reason for terminating him, i.e. for making a serious threat of harm against a co-worker, was false. The Court rejected the physician's argument that his comments did not rise to the level of a serious threat, holding that the question is not whether the threat was made but whether the employer reasonably believed that a threat was made. A copy of the written decision can be read here.

If you would like additional information or guidance on ADA claims or termination of persons with disabilities please visit the Farrell & Gunderson website and contact Eric W. Gunderson.

Supreme Court Holds that in ADEA Cases the Burden of Proof Does Not Shift Where Employee Presents Evidence that Age Was Motivating Factor

2009-06-18T14:03:00.007-04:00

Today, in Gross v. FBL Financial Services, Inc., the Supreme Court declined to adopt Title VII's burden-shifting scheme that is applied to "mixed-motive" cases to claims brought under the ADEA. The Court held that even where a plaintiff produces some evidence that age was a motivating factor in the employment decision the burden of persuasion does not shift to the employer to show that it would have taken the same action regardless of age. Unlike Title VII, ADEA was not amended to explicitly authorize discrimination claims where an improper consideration was "a motivating factor" for the adverse action. Accordingly, a plaintiff may not establish discrimination under the ADEA by showing that age was simply a motivating factor; rather, the plaintiff must prove that age was the "but-for" cause of the employer's adverse decision. A copy of the decision can be read here.

If you would like additional information or guidance on the ADEA or Title VII please visit the Farrell & Gunderson website and contact Eric W. Gunderson.

DC Court Vacates DOES's Denial of Unemployment Benefits Because Agency Failed to Render Finding on Whether Absenteeism Was Deliberate

2009-06-11T16:39:00.008-04:00

Petitioner Sharion Larry was denied unemployment benefits by the DC Department of Employment Services on the grounds that she was discharged for gross misconduct on account of absenteeism. Larry appealed to the DC Court of Appeals, which held, in Larry v. National Rehabilitation Hospital, that the Agency's finding of gross misconduct was not adequately supported in the record since the Agency did not make a determination of whether her absenteeism was willfull or deliberate--a prerequisite to a finding of "gross misconduct." A copy of the decision can be read here.

If you would like additional information or guidance on unemployment compensation claims or appeals of decisions of the DOES please visit the Farrell & Gunderson website and contact Eric W. Gunderson.

Court Holds that Knowledge of Co-Workers of Sexually Hostile Work Environment Was Not Sufficient to Put Employer On Notice of Harassment

2009-06-10T11:20:00.006-04:00

In Huston v. The Proctor and Gamble Paper Products Corp., the United States Court of Appeals for the Third Circuit agreed that the employer should not be held liable for the sexually hostile work environment created by some of its workers because it acted promptly in investigating the allegations of harassment once plaintiff reported the harassment to management and thereafter issued appropriate discipline to those involved. The Court rejected Plaintiff's argument that the employer knew or should have know of the sexually hostile environment sooner since several workers observed the harassment, holding that an employer is deemed to have knowledge of harassment only when management-level employees are made aware of the harassment. A copy of the decision can be read here.

If you would like additional information or guidance on hostile work environment claims or how to handle and respond to complaints of harassment please visit the Farrell & Gunderson website and contact Eric W. Gunderson.

There Is No Cause of Action Under Title VII for Third-Party Retaliation

2009-06-05T13:47:00.002-04:00

Employee filed suit against former employer alleging that employer terminated his employment in retaliation for his fiance filing a charge of discrimination against the employer alleging gender discrimination. Joining other Circuits, the United States Court of Appeals for the Sixth Circuit, in Thompson v. North American Stainless, LP, today held that Title VII retaliation claims can only be asserted by those persons who actually engaged in the protected activity. A copy of the decision can be read here.

If you would like additional information or guidance on retaliation claims, or other Title VII claims please visit the Farrell & Gunderson website and contact Eric W. Gunderson.

Federal Court Holds That Written Reprimand Was Not Adverse Employment Action Sufficient to Support Retaliation Claim

2009-06-05T11:07:00.004-04:00

The United States Court of Appeals for the Eighth Circuit, in Littleton v. Pilot Travel Center, LLC, held that a written reprimand, called a "Correction Notice," notifying an employee that if he did not discontinue his inappropriate and harassing conduct that he would be terminated was not an "adverse employment action" sufficient to support a retaliation claim. The Court reasoned that the Correction Notice was not "materially adverse" under the Burlington test because it did not "harmfully impact" his employment. A copy of the decision can be read here.

If you would like additional information or guidance on retaliation claims, please visit the Farrell & Gunderson website and contact Eric W. Gunderson.

Court Holds Employer's Recission of Workplace Policy Giving National Guardsman Preferencial Work Schedule Did Not Violate USERRA

2009-06-02T16:41:00.003-04:00

In Crews v. City of Mt. Vernon, the Unites States Court of Appeals for the Seventh Circuit held today that an employer's decision to rescind a policy giving National Guardsman preferential treatment with respect to scheduling did not violate USERRA. The Court concluded that because the policy was not an "employment benefit" that was available to all employees regardless of their military status, rescinding that benefit was not in violation of USERRA's prohibition against denying an employee an "employment benefit" because of their military status. A copy of the decision can be read here.

If you would like additional information or guidance on workplace policies and the impact of the provisions of USERRA on employment decisions, please visit the Farrell & Gunderson website and contact Eric W. Gunderson.

Employee Manual Held Not to Create Contractual Obligations Relating to Termination of At Will Employee

2009-05-29T14:54:00.000-04:00

Federal Court held that employee manual, which did include a disclaimer that provisions regarding termination did not create contractual obligations, did not alter the employer's rights with respect to terminating an at-will employee. A copy of the written decision can be read here.

For additional information on employment contracts and terminating employees, please visit the Farrell & Gunderson website and contact Eric W. Gunderson.

Employee With Anxiety Disorder Caused By Working with Former Supervisor Is Not Disabled For Purposes of Disability Claim

2009-05-29T12:25:00.000-04:00

Employee who allegedly suffered from an anxiety disorder and depressed mood because of her interactions with a former supervisor filed claim against employer under the Rehabilitation Act for failing to accommodate her claimed disability. Employee argued that she was disabled because she was substantially limited in her ability to work because of her mental disorder. The US District Court for the District of Columbia, in Rand v. Geithner, held that while employee might be limited in her ability to work in a particular office for a particular supervisor, she was not substantially limited in her ability to work a particular job or class of jobs. A copy of the decision can be read here.

If you would like more information on defending Rehabilitation Act claims or handling employee requests for accommodation please visit the Farrell & Gunderson website and contact Eric W. Gunderson.

Harassment Claim Dismissed Where Alleged Harassment Was Sporadic and Not Sufficiently Severe

2009-05-29T12:15:00.000-04:00

In Tolson v. Springer, the US District Court for the District of Columbia granted summary judgment in favor of an employer on an employee's claim under Title VII of sexual and racial harassment on the grounds that the harassment was sporadic and not sufficiently severe to amount to the type of harassment that is actionable under Title VII. The Court held that the harassment which consisted of five sporadic racially and sexually derogatory comments was likely offensive but not so severe to have altered the working conditions of the plaintiff's workplace. A copy of the decision can be read here.

If you would like more information on defending Title VII claims claims or have questions regarding handling and investigating complaints of discrimination please visit the Farrell & Gunderson website and contact Eric W. Gunderson.

Employee's Title VII Claim Fails Where Employer's Decision to Terminate Was Based on Reasonable Belief He, Not White Coworker, Engaged in Misconduct

2009-05-29T11:45:00.000-04:00

African-American Security Officer brought Title VII claim against his employer alleging that he was terminated because of his race. Security Officer was terminated for fighting after getting into a fight with a white co-worker, and argued that he had an actionable Title VII claim because he was terminated for fighting whereas his white co-worker was not. The US District Court for the District of Columbia, in Brathwaite v. Vance Federal Security Services, Inc., held that because employer had concluded based on its investigation of the incident that black security officer had initiated the altercation, it acted reasonably and did not unlawfully discriminate based on race in terminating the one employee and not the other. A copy of the decision can be read here.

If you would like more information on defending Title VII claims claims or have questions regarding handling and investigating complaints of discrimination please visit the Farrell & Gunderson website and contact Eric W. Gunderson.

Real Estate Agents Were Independent Contractors, Not Employees, of Brokerage Firm, Thus Could Not Bring Title VII Discrimination Claim

2009-05-29T10:33:00.000-04:00

Three real estate brokers who had signed independent contractor agreements with a real estate brokerage firm argued that the firm controlled their work as if they were employees and, therefore, they could bring Title VII discrimination claims against the firm. In Sean Proa v. NRT Mid-Atlantic, Inc., the US District Court of Maryland held that the three brokers were not employees but independent contractors. The Court rejected the argument that because the brokers were required to work in the firm's office during their assigned "floor duty" times, attend office meetings, and follow certain firm policies. A copy of the written decision can be read here.

If you would like more information on defending Title VII claims claims or have questions regarding independent contractor status please visit the Farrell & Gunderson website and contact Eric W. Gunderson.

Court Holds Government Employer Did Not Have Duty to Review Non-Payroll Records to Determine Whether Workers Were Working Overtime

2009-05-28T15:44:00.000-04:00

In an effort to hold a County employer liable for overtime pay under the FLSA on the grounds that it should have known that its workers were working unpaid overtime, a group of plaintiff employees requested that the Court instruct the jury that the employer had a duty to review and consult daily activity logs--which were not used for payroll purposes-- and that the employer would have constructive knowledge of employees working overtime as reflected in the logs. The Court refused to give the instruction. In Hertz v. Woodbury County Iowa, the United State Court of Appeals for the Eighth Circuit, upheld the lower court's refusal to give the instruction. The Eighth Circuit concluded that though information concerning work hours in these daily activity logs might have indicated that workers were working overtime, it is not reasonable to require an employer to review these records for payroll purposes. Accordingly, the employer was not on "constructive notice" that some of its workers were working overtime. A copy of the decision can be read here.

If you would like more information on defending overtime or other FLSA claims please visit the Farrell & Gunderson website and contact Eric W. Gunderson.

Welcome: New Blog on Current Developments in Employment Law

2009-05-28T15:28:00.000-04:00

This blog is created and will be maintained as a resource of information on current developments in employment law to assist employers and their defense counsel in handling and defending employment-related claims.

If employers wish to seek further guidance, counseling, or representation with respect to specific claims that need to be defended you may contact me directly at:

Farrell & Gunderson
8840 Stanford Boulevard
Suite 2000
Columbia, Maryland 21045
410-290-1955
www.farrell-law.com