Tuesday, October 5, 2010

Employment Case Law Update

--Noel v The Boeing Co., 3rdCir, October 1, 2010: in an issue of first impression in the Court of Appeals for the Third Circuit regarding the Lilly Ledbetter Fair Pay Act of 2009, the Court holds that the appellant's Title VII discrimination claim was untimely. The appellant failed to file his claim within Pennsylvania's 300-day time period but he claimed that the FPA started the clock anew each time he received a paycheck less than his equal counterparts in a discriminatory manner which then revived his claim. In upholding the grant of summary judgment in favor of the defendant, the Third Circuit held that the appellant's failure-to-promote claim did not constitute “discrimination in compensation” and that the FPA does not apply to failure-to-promote claims.

--Gairnese v King Pharm, Inc., NDCal, September 27, 2010: Although a returning serviceman established a prima facie case of unlawful termination in violation of USERRA and state law against his former employer, he was not entitled to summary judgment on the issue of his employer’s liability on either claim. It was undisputed that the serviceman was eligible for coverage under USERRA, as he had served for more than 180days in Afghanistan and was terminated within one year after the date of his reemployment. However, there was a genuine issue about whether his discharge was based on conduct that the employer had notice would constitute reasonable cause for discharge. In addition, the employer pointed to evidence of the serviceman’s negative attitude and behavior toward his supervisor as additional grounds for his discharge. Although the serviceman met or exceeded sales goals, the court could not find, as a matter of law, that the decision to terminate him was objectively unreasonable. Moreover, the sufficiency of the supervisor’s verbal warning as notice to the serviceman that his conduct was cause for discharge also remained in dispute. Because there were genuine issues of material fact on notice and cause, the court denied the serviceman’s motion for partial summary judgment.

--Schuler v PriceWaterhouseCoopers, LLP, DDC, September 22, 2010: An employee who filed suit as an individual, non-class plaintiff could not maintain an ADEA “pattern and practice” claim, ruled a federal district court in granting the employer’s motion for summary judgment on remand. This case is more concerned with the practice of filing as a class than it is about the substance of a pattern of age discrimination claim. Because the employee was pursuing a pattern and practice claim as an individual, non-class plaintiff, just as he and his co-plaintiff did in a 2002 lawsuit, collateral estoppel barred the instant lawsuit. The court rejected the employee’s argument that his ADEA “collective action” should be treated differently than Title VII class action lawsuits because the former involves an opt-in class rather than an opt-out class. The court determined that because the employee failed to take the essential first step of moving for notice to potential class members, no allegedly similarly situated employees ever opted in for a class, and, therefore, there was no class of plaintiffs, thereby rendering any purported differences between class and collective actions irrelevant.
The Lilly Ledbetter Fair Pay Act also makes an appearance and is once again shotdown because it does not apply to failure-to-promote claims.

--Wasek v Arrow Energy Servs, Inc., EDMich, September 29, 2010: A male oil rig employee was unable to pursue his Title VII and Michigan law claims that he was subjected to same-sex sexual harassment by a male coworker and retaliated against for complaining, because he failed to show that the harassment was due to his gender.

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