Tuesday, November 9, 2010

Employment Case Law Update

--Stiefel v Bechtel Corp., 9thCir, November 1, 2010: Court of Appeals for the Ninth Circuit reverses the lower court and holds that because there was a work-sharing agreement between the California Department of Fair Employment and Housing (DFEH) and the Equal Employment Opportunity Commission (EEOC), a charge filed with the former was deemed filed with the latter on the same day. Moreover, the employee, having received a right-to-sue letter from the DFEH, was entitled to receive an EEOC right-to-sue letter. Following receipt of the state agency’s letter, the employee had filed his lawsuit within the 90-day statutory window, which had been tolled pending his first suit, and the appeals court reversed dismissal of his accommodation and termination claims.

--Male v Tops Markets, LLC, WDNY, October 29, 2010: at issue is whether a bad reference amounts to post-termination retaliation for filing a Title VII claim. While the court recognized 2nd Circuit precedent stating that a false statement made by a former employer to a prospective employer could be considered an adverse action under Title VII, the plaintiff ultimately lost for failing to allege facts sufficiently plausible to show that she was engaged in a protected activity.
This case is more about good pleading skills and less about substance. So, what did the pleading read that led to the demise of this claim?:
(1) Plaintiff filed a complaint in the United States District Court for the Western District of New York on November, 19 2007; (2) Plaintiff applied for more than 100 jobs, but was not hired; (3) Plaintiff “interviewed well” and was told she would be “called back,” but was not called back; and (4) “Upon information and belief, Plaintiff has been unable to gain employment because defendant has given her bad recommendations, in retaliation for having engaged in protected activity....”

The court had several problems with this part of the pleading. First, they said Plaintiff has not alleged discrimination on the basis of race, color, religion, sex, or national origin. Second, Plaintiff has not supplied any facts that would sufficiently support the remaining elements of a post-termination retaliation claim under Title VII or the ADA, other than her own conclusory statements. Mere conjecture will not cut it:

While there is no “bright-line” rule to determine whether negative reference would amount to an adverse action, the Plaintiff must supply enough facts for the Defendant to be on notice of the circumstances of the adverse action that underlies her claim. On the facts presented, the Defendant cannot be said to be on notice, as is required under Rule 8 of the Federal Rules of Civil Procedure, of the factual circumstances that underlie the Plaintiff’s claim.


Convenient enough, Plaintiff has FRCP Rule 15(c) to save the day and the court allowed Plaintiff the opportunity to leave to amend her pleading with respect to her claim for post-termination retaliation.

--Mervis v Triad Packing, Inc., EDTenn, November 2, 2010: Summary judgment granted in favor of defendant after Plaintiff failed to establish that the employer’s legitimate, nondiscriminatory reason for terminating him was pretextual in age discrimination claim. The employer claimed that as part of its reduction in force (RIF), it terminated the employee because other sales representatives outperformed him and brought in more new clients. However, the court found that the employee did not address the issue of whether this legitimate, nondiscriminatory reason (LNDR) for his discharge was pretext for discrimination or offer any evidence that the employer’s reason was not true. In fact, the employer’s evidence showed that the employee’s contribution number was lower than those of other sales representatives.
The fact that the plaintiff was terminated in an RIF is significant because, "[w]hen a workforce reduction is a factor in the decision to terminate, a plaintiff “does not make out a prima facie case absent additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons.” Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (6th Cir. 1990)." Plaintiff attempted to assert that this wasn't a true RIF because he was replaced, but to no avail.

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