Employment Law Update

1
Employment Law Update by Robert B.
Fitzpatrick, Esq. Robert B. Fitzpatrick,
PLLC Suite 640 Universal Building South 1825
Connecticut Avenue, N.W. Washington, D.C.
20009-5728 [phone] (telephone) (202)
588-5023 (fax) fitzpatrick.law_at_verizon.net
(e-mail) http//www.robertbfitzpatrick.com
(website)
2
Lilly Ledbetter Fair Pay Act of 2009

• Pub. L. No. 111-2 (2009)

• For purposes of this section, an unlawful
  employment practice occurs, with respect to
  discrimination compensation in violation of this
  title, when a discriminatory compensation
  decision or other practice is adopted, when an
  individual becomes subject to a discriminatory
  compensation decision or other practice, or when
  an individual is affected by application of a
  discriminatory compensation decision or other
  practice, including each time wages, benefits, or
  other compensation is paid, resulting in whole or
  in part from such a decision or other practice
  Id. 3(a)
• This Act, and the amendments by this Act, take
  effect as if enacted on May 28, 2007 Id. 6
• Bush v. Orange County Corr. Dept, 2009 U.S.
  Dist. LEXIS 7156 (M.D. Fla. Feb. 2, 2009)
• Gilmore v. Macys Retail Holdings, 2009 U.S.
  Dist. LEXIS 4937 (D.N.J. Jan. 20, 2009)

3
Americans With Disabilities Act

• ADA Amendments Act of 2008, Pub. L. No. 110-325
  (2008)
• Kellogg v. Energy Safety Servs. Inc., 544 F.3d
  1121, 2008 U.S. App. LEXIS 21567 (10th Cir.
  2008) (driving is a major life activity)
• Adams v. Rice, 531 F.3d 936, 2008 U.S. App.
  LEXIS 15295 (D.C. Cir. 2008) (sexual relations
  is a major life activity)

4
Americans With Disabilities Act

• Desmond v. Mukasey, 530 F.3d 944, 2008 U.S. App.
  LEXIS 13803 (D.C. Cir. 2008) (sleeping is a
  major life activity)
• Archive ADA The Path to Equality,
  www.archiveADA.org (last visited February 27,
  2009)

5
Retaliation Claims The Tail is Wagging the Dog

• The number of retaliation charges filed with
  the EEOC increased from 1997 at 22.6 to 29.8
  of all charges filed in 2006. Sylvia A. Bier,
  American Bar Assn, Protect Against the Surge of
  Employee Retaliation Claims Understanding Title
  VII and Its Application to Recent EEOC Cases, 36
  The Brief 3, at 15 (Spring 2007)
• Crawford v. Metropolitan Govt of Nashville and
  Davidson County, 129 S. Ct. 846, 2009 U.S. LEXIS
  870 (2009)
• Michael J. Zimmer, A Pro-Employee Supreme
  Court? Retaliation Decisions, 60 S.C. L. Rev.
  (forthcoming 2009), available at
  http//ssrn.com/abstract1333778

6
Litigation Under New Whistleblower Laws

• Consumer Product Safety Improvement Act of
  2008, Pub. L. No. 110-314, 15 U.S.C. 2087
  (2008) (CPSIA whistleblower rights to private
  sector workers connected with the manufacture,
  importing, distribution, labeling, or retail
  sail of consumer products under the jurisdiction
  of the Consumer Product Safety Commission)
• McCaskill Amendment (S.Amdt. 196) to the
  American Recovery and Reinvestment Act of 2009,
  H.R. 1, 111th Cong. (2009)
• See also whistleblower amendment to the Surface
  Transportation Assistance Act 49 U.S.C. 31105,
  the Federal Rail Safety Act (49 U.S.C. 20109),
  the National Transit Systems Security Act (6
  U.S.C. 1142) and section 846 of the National
  Defense Authorization Act for Fiscal Year 2008
  (10 U.S.C. 2409) (amending whistleblower
  protection for employees of DOD contractors and
  grantees)

7
SOX

• Platone v. United States Dept of Labor, 548
  F.3d 322, 2008 U.S. App. LEXIS 24378 (4th Cir.
  2008) (holding that the plaintiffs
  communication to her supervisors that pilots
  were misusing a missed-flight reimbursement plan
  was merely communicating a billing discrepancy
  and was not enough information to indicate
  possible fraud against shareholders within the
  scope of SOX)
• Day v. Staples, Inc., 2009 U.S. App. LEXIS 2266
  (1st Cir. Feb. 9, 2009) (SOX did not bar the
  termination of an employee whose complaints
  about the companys product return practices
  could not reasonably have been construed to
  reflect an objectively reasonable belief that
  the company was defrauding shareholders)

8
Gross v. FBL Financial Servs., Inc.

• 129 S. Ct. 680, 2008 U.S. LEXIS 8885 (2008),
  cert. granted, 526 F.3d 356 (8th Cir. 2008)

• Does 2000(e)-2(m) of the Civil Rights Act of
  1991 apply to claims arising under the ADEA?
• Does the Courts decision in Desert Palace,
  Inc. v. Costa, 539 U.S. 90 (2003) supersede
  Price Waterhouse v. Hopkins, 490 U.S. 228
  (1989)?

9
Ricci v. DeStefano

• 129 S. Ct. 893, 2009 U.S. LEXIS 394 (2008), cert.
  granted, 530 F.3d 87 (2d. Cir. 2008)

• Is it reverse discrimination to withdraw
  promotions because a test had disparate impact?
• Oakley v. City of Memphis, 2008 U.S. App. LEXIS
  19377 (6th Cir. 2008) (When content-valid, civil
  service examination and race-neutral selection
  process yield unintended racially
  disproportionate results, does employer racially
  discriminate when it rejects results and
  successful candidates in order to achieve racial
  proportionality in candidates selected?)

10
Graham County Soil Water v. United States ex
rel. Wilson

• 129 S. Ct. 753, 2008 U.S. LEXIS 9031 (2008),
  cert. granted, 528 F.3d 292 (4th Cir. 2008)

• Does the public disclosure bar of the False
  Claims Act apply to administrative audits,
  reports, hearings or investigations conducted or
  issued by a state or local governmental entity?

11
14 Penn Plaza LLC v. Pyett

• 128 S. Ct. 1223, 2008 U.S. LEXIS 1418 (2008),
  cert. granted sub nom, Pyett v. Pa. Bldg. Co.,
  498 F.3d 88 (2d. Cir. N.Y. 2007)

• Whether and arbitration provision in a
  collective bargaining agreement (CBA) , which
  explicitly waives union members right to bring
  statutory discrimination claims in court, I
  enforceable so as to deprive the employees of a
  judicial forum even where the union has refused
  to submit the claims to arbitration.
• See Austin v. Owens-Brockway Glass Container,
  78 F.3d 87 (4th Cir. 1996) (individual must
  pursue discrimination claims through
  union-negotiated grievance procedure provision
  requiring arbitration of such claims is
  enforceable). The Supreme Court, when presented
  with a similar question in Wright v. Universal
  Maritime Service Corp., 525 U.S. 70 (1990),
  refused to resolve the question, holding that it
  was not clearly presented because that CBA
  provision did not explicitly include statutory
  claims.

12
Fitzgerald v. Barnstable School Committee

• 129 S. Ct. 788, 2009 U.S. LEXIS 592 (2009),
  revd, 504 F.3d 165 (1st Cir. 2007)

• Title IX was not meant to be an exclusive
  mechanism for addressing gender discrimination
  in schools, or a substitute for 1983 suits as a
  means of enforcing constitutional rights
• The implied private right of action under Title
  IX is in stark contrast to the unusually
  elaborate, carefully tailored, and
  restrictive enforcement schemes of the
  statutes in Sea Clammers, Smith and Rancho Pelos
  Verdes.

13
Hybrid FLSA Cases

• Under the FLSA, plaintiffs can proceed under
  the Section 216(b) opt- in collective action
  procedure, but only state law claims allow for
  an opt-out class actions under FRCP 23.
  Combining an FLSA collective action and a
  state-law class action claims in one proceeding
  has been labeled a hybrid wage and hour action.
  Some courts have allowed plaintiffs to proceed
  with a hybrid or opt in/opt out approach under
  both FLSA Section 216(b) for opt in notice and
  FRCP 23 for class notice as to state law claims
  (on an opt out basis). See McLaughlin v. Liberty
  Mutual Ins. Co., 224 F.R.D. 304 (D. Mass. 2004)
  Ansoumana v. Gristede's Operating Corp., 201
  F.R.D. 81 (S.D.N.Y. 2001) O'Brien v. Encotech
  Constructions Servs., Inc., 203 F.R.D. 346 (N.D.
  Ill. 2001)
• Lindsay v. Gov Employees Ins. Co., 448 F.3d
  416, 2006 U.S. App. LEXIS 13166 (D.C. Cir. 2006)

14
Transgender Discrimination

• Schroer v. Billington, 577 F. Supp. 2d 293,
  2008 U.S. Dist. LEXIS 71358 (D.D.C. 2008) see
  also Schroer v. Billington, 424 F. Supp. 2d 203,
  2006 U.S. Dist. LEXIS 14278 (D.D.C. 2006)
• Etsitty v. Utah Transit Auth., 502 F.3d 1215,
  2007 U.S. App. LEXIS 22989 (10th Cir. 2007)
• Zachary A. Kramer, Heterosexuality and Title
  VII, 103 Nw. U. L. Rev. 205 (2009)
• Elizabeth M. Glazer Zachary A. Kramer,
  Transitional Discrimination, Temp. Pol. Civ.
  Rts. L. Rev. (forthcoming 2009), available at
  http//ssrn.com/abstract1345254

15
Class Actions

• In re Hydrogen Peroxide Antitrust Litigation,
  552 F.3d 305, 2008 U.S. App. LEXIS 26871 (3d
  Cir. 2008) (in a landmark opinion, Chief Judge
  Scirica provided extensive guidance to the
  district courts in deciding whether to certify a
  class under Civil Rule 23, stating that the
  district court must find, by a preponderance of
  the evidence, that each requirement of Rule 23
  is satisfied, that it must resolve all factual
  and legal disputes relevant to class
  certification even if they overlap with the
  merits, and holding that expert testimony is
  part of the relevant evidence that the court
  must consider)
• Dukes v. Wal-Mart, Inc., 509 F.3d 1168 (9th
  Cir. 2007), rehg granted, 2009 U.S. App. LEXIS
  2854 (9th Cir. Feb. 13, 2009)

16
Class Action Waivers in Arbitration

• In re American Express Merchants Litigation,
  2009 U.S. App. LEXIS 1646 (2d Cir. Jan. 30,
  2009)
• Homa v. American Express, 2009 U.S. App. LEXIS
  3688 (3rd Cir. 2009)
• Shannon P. Duffy, 3rd Circuit Deals Blow to
  Class-Arbitration Waivers, The Legal
  Intelligencer, February 25, 2009, available at
  http//www.law.com/jsp/article.jsp?id124 2856311
  6

17
Arbitration Issues Continue to Abound

• Morales v. Sun Constructors, Inc., 541 F.3d 218
  (3d Cir. 2008) (the majority, with Judge Fuentes
  dissenting, held that an employee who did not
  read English nonetheless manifested mutual
  assent to the arbitration clause at issue the
  panel unanimously reaffirmed that it would be
  inconsistent with the FAA to apply a heightened
  knowing and voluntary standard to arbitration
  agreements)
• Guyden v. Aetna Inc., 544 F.3d 376 (2d Cir.
  2008) (held that nothing in the statute
  prohibits SOX whistleblower claims from being
  resolved in arbitration )
• Richard A. Bales, Twenty-Second Annual Carl A.
  Warns, Jr. Labor Employment Law Institute
  Contract Formation in Employment Arbitration, 44
  Brandeis L.J. 415 (2006)

18
Attorney-Client Privilege Waivers When Client
Communicates Using Employers Equipment or Email
System

• Adam C. Losey, Clicking Away Confidentiality
  Workplace Waiver of Attorney-Client Privilege,
  60 Fla. L. Rev. 1190 (2008)
• Suggested language for representation agreements
• Client agrees and consents to the Firms
  transmission of bills and other materials related
  to billing by facsimile and e-mail to Client.
  Typically, the Firm would communicate by e-mail
  to Client and the Client agrees and consents to
  e-mail transmission to Client of privileged
  attorney-client communications. While e-mail
  provides a fast and efficient medium for
  communication, there exists some case law which
  suggests that e-mail communications between
  attorney and client may not be confidential and
  may be discoverable by an adverse party.
• In addition, most employers consider
  company-owned computers, as well as all
  information contained in them, to be company
  property. Accordingly, there is generally no
  right to privacy of any e-mail sent or received
  at your place of employment. Your employer has
  complete access to, and is capable of, retrieving
  any e-mail message sent or received by you at
  your company-owned computer or business e-mail
  address, even after you have deleted the message.
• Therefore, you should NEVER communicate by
  e-mail with your attorney using a company-owned
  computer or your business e-mail address.
  Additionally, you should exercise discretion in
  e-mailing the Firm from your home or non-business
  e-mail address.

19
National Origin Discrimination Claims

• Estenos v. PAHO/WHO Fed. Credit Union, 952 A.2d
  87, 2008 D.C. App. LEXIS 281 (D.C. 2008)
• Stratton Bergquist, The Contours of National
  Origin Discrimination Under Federal Law,
  National Employment Lawyers Association 18th
  Annual Convention Manual (2007)

20
Race Prohibited as a Criterion for Computing
Damages

• McMillan v. City of New York, 2008 U.S. Dist.
  LEXIS 76711 (E.D.N.Y. Sep. 19, 2008) (Weinstein,
  J.) (Order Excluding Race as a Criterion for
  Computing Damages)
• While race may be a social construct, many
  policymakers and courts insist that it remains a
  significant predictor of access to societal
  goods and resource. Audrey Smedley Brian D.
  Smedley, Race as a Biology is Fiction, Race as a
  Social Problem is Real, 601 Am. Psychologist 16,
  22 (2005). Racial and ethnic disparities in
  quality of health care, for example, remain
  substantial across a broad range of medical
  services. Id at 23. But those disparities are
  associated with socioeconomic difference and tend
  to diminish significantly and, in a few cases, to
  disappear altogether when socioeconomic factors
  are controlled. Id. By allowing the use of
  race-based life expectancy tables, which are
  based on historic data, courts are essentially
  reinforcing the underlying social inequalities of
  our society rather than describing a significant
  biological difference.

21
The Contours of Protected Activity

• Birdyshaw v. Dillards Inc., 2009 U.S. App.
  LEXIS 1737 (11th Cir. Jan. 28, 2009)
• Circuit split about whether a person who
  rejects a supervisors sexual advances has
  engaged in a protected activity. Compare LeMaire
  v. La. Dept of Transp. Dev., 480 F.3d 383,
  389 (5th Cir. 2007) (holding that a single,
  express rejection of sexual advances does not
  constitute protected activity for purposes of a
  retaliation claim) with Ogden v. Wax Works,
  Inc., 214 F.3d 999, 1007 (8th Cir. 2000)
  (finding that when the plaintiff told her
  supervisor to stop harassing her, she engaged in
  the most basic form of protected conduct).
• Niswander v. The Cincinnati Ins. Co., 529 F.3d
  714, 2008 U.S. App. LEXIS 13284 (6th Cir. 2008)
  (majority sets forth a six-factor balancing test
  for determining whether employees delivery of
  confidential documents to her attorney was
  reasonable )

22
Damages Issues

• Eshelman v. Agere, 2009 U.S. App. LEXIS 1947
  (3d Cir. Jan. 30, 2009) (holding that a district
  court may, pursuant to its broad equitable
  powers granted by the ADA, award a prevailing
  employee an additional sum of money to
  compensate for the increased tax burden a back
  pay award may create). Contra Fogg v. Gonzales,
  492 F.3d 447 (D.C. Cir. 2007) (Court affirmed
  the award of back pay and denial of front pay,
  but reversed as to the extent of the gross up)
  and Dashnaw v. Pena, 12 F.3d 1112 (D.C. Cir.
  1994) (holding that absent an arrangement by
  voluntary settlement of the parties, the general
  rule that victims of discrimination should be
  made whole does not support gross-ups of back
  pay to cover tax liability. We know of no
  authority for such relief.)
• Tarr v. Bob Ciasullis Mack Auto Mall, Inc., 943
  A.2d 866, 2008 N.J. LEXIS 222 (N.J. 2008)
  (punitive damages awards to focus only on
  deterrence of the specific defendant as opposed
  to general deterrence of others consideration
  of the employer financial condition both after
  and at the time of the wrongful conduct is
  necessary)

23
Damages Issues

• Robert H. Wright, Punitive Damages Immunity of
  Federal Instrumentalities, 38 The Brief, A.B.A.
  Sec. Tort Trial Ins. Practice 24 (2009),
  available at http//www.abanet.org/tips/brief/bri
  efcurrent.html (appellate courts have split on
  the fundamental question of whether the sue and
  be sued language in the statutes granting
  federal charters to federal instrumentalities,
  including Fannie Mae, Freddie Mac, and the
  American Red Cross, waives the federal
  instrumentalitys immunity from punitive damages
  claims. Compare in re Sparkman, 703 F.2d 1097,
  1100-01 (9th Cir. 1983) (holding that a
  federal instrumentality retains its immunity
  from punitive damages unless Congress explicitly
  authorizes liability for such damages) with
  McGee v. Tucoemas Federal Credit Union, 153 Cal.
  App. 4th 1351 (Cal. Ct. App. 2007) (refusing to
  follow in re Sparkman and holding instead that
  federal instrumentalities are generally subject
  to punitive damage claims))

24
Application of Faragher-Ellerth Affirmative
Defense to FLSA Cases

• Lisa A. Lee Schreter, Whitney M. Ferrer
  SoRelle B. Braun, Adopting the Avoidable
  Consequences Affirmative Defense Applying the
  Lessons of Ellerth/Faragher to FLSA Claims,
  copies available from the author at
  LSchreter_at_littler.com

25
Attorneys Fees for Pre-suit Work in ERISA Cases

• Cann v. Carpenters Pension Trust Fund, 989
  F.2d 313 (9th Cir. 1993) (Court interpreted
  1132(g)(1)s language in any action to
  preclude the award of fees for any efforts
  expended on negotiations or administrative
  proceedings prior to the action.)
• LaSelle v. Public Service Co. of Colorado
  Severance Pay Plan, 988 F. Supp. 1348 (D. Colo.
  1997) (agreeing with Cann that ERISAs
  attorneys fees provision did not permit recovery
  for fees incurred in the administrative fee of
  the proceedings but held that all time spent by
  counsel in interviews, consultation, preliminary
  research, and various additional tasks unrelated
  to the administrative appeal, even thought
  performed before the filing of the complaint, is
  compensable)

26
Attorneys Fees for Pre-suit Work in ERISA Cases

• Hedley-Whyte v. Unum Life Ins. Co. of America,
  1996 U.S. Dist. LEXIS 5880 (D. Mass. 1996)
  (This Court find Canns strict exclusion of
  prelitigation expenses to be a questionable
  interpretation of the statutory language this
  Court can identify no sound reason however based
  on the statutory language, why a court lacks
  discretion to award fees and costs for work
  appropriately contributing to the prosecution of
  the action just because they were incurred prior
  to the filing date)

27
USERRA Litigation

• Serricchio v. Wachovia Securities LLC, 556 F.
  Supp. 2d 99, 2008 U.S. Dist. LEXIS 20043 (D.
  Conn. 2008) (Plaintiff was a financial adviser
  working on commissions who was called to active
  duty, and upon reinstatement, argued that
  defendant had not satisfied its reemployment
  obligations under 38 U.S.C. 4316, contending
  that defendant had a duty to preserve his book
  of business. The Court held that defendant does
  not have a duty to provide the employee with
  his exact previous book of business, so long as
  what is provided gives him the opportunity to
  reenter the workforce with comparable earning
  potential and chance for advancement as his own
  book of business provided prior to his service,
  regardless of whether the same clients are in
  the substituted book)

28
Cy Pres Power

• Diamond Chemical Co. Inc. v. Akzo Nobel
  Chemicals B.V., 517 F.Supp.2d 212 (D.D.C. 2007)
  and 2007 U.S. Dist. LEXIS 49406 (D.D.C. 2007)
• Amanda Bronstad, Cy Pres Awards Under Scrutiny,
  The National Law Journal, August 11, 2008,
  available at http//www.law.com/jsp/nlj/PubArticl
  eNLJ.jsp?id120 2423649133
• Theodore Frank, The Federalist Society, Class
  Action Watch, Cy Pres Settlements (Apr. 4,
  2008), available at http//www.fed- soc.org/doclib
  /20080404_FrankCAW7.1.pdf
• Adam Liptak, Doling Out Other Peoples Money,
  N.Y. Times, Nov. 26, 2007, available at
  http//www.nytimes.com/2007/11/26/washington/26ba
  r.html? _r1orefslogin

29
Cy Pres Power

• Another possibility for distribution of
  unclaimed monies in class action settlements
  might be the utilization of state unclaimed
  property laws. See John L. Coalson, Jr. Ethan
  D. Millar, The Pot of Gold at the End of the
  Class Action Lawsuit Can States Claim it as
  Unclaimed Property? (2008), available at
  http//works.bepress.com/ethan_millar/2

30
Computer Fraud Abuse Act

• Intl Airport Centers v. Citrin, 440 F.3d 418
  (7th Cir. 2006) (while the CFAA does not define
  transmission a transmission includes the
  installation and use of an erasure program on
  the computer)
• Patrick Patterson Custom Homes, Inc. v. Bach,
  586 F. Supp.2d 1026, 2008 U.S. Dist. LEXIS
  92761 (N.D. Ill. 2008) (opinion discusses
  whether the defendant knowingly caused the
  transmission of a program, information, code or
  command, and as a result of such conduct
  intentionally caused damage without
  authorization, to a protected computer )
• L-3 Commcns Westwood Corp. v. Robicharux, 2007
  U.S. Dist. LEXIS 16789 (E.D. La. Mar. 8, 2007)

31
Computer Fraud Abuse Act

• Chas. S. Winner, Inc. v. Polistina, 2007 U.S.
  Dist. LEXIS 40741 (D.N.J. June 4, 2007)
• Motorola Credit Corp. v. Uzan, 2002 U.S. Dist.
  LEXIS 19632 (S.D.N.Y. Oct. 16, 2002)
• Pearl Invs. LLC v. Standard I/O, Inc., 257 F.
  Supp. 2d 326, 2003 U.S. Dist. LEXIS 6890 (D. Me.
  2003)
• United States v. Middleton, 231 F.3d 1207 (9th
  Cir. 2000)
• Spangler, Jennings Dougherty, P.C. v.
  Mysliwy, 2006 U.S. Dist. LEXIS 39602 (N.D. Ind.
  2006)
• Tyco Intl Inc. v. Does, 2003 U.S. Dist. LEXIS
  11800 (S.D.N.Y. July 11, 2003)

32
Defense Discovery Subpoenas to Plaintiffs Former
and Current Employers

• Barrington v. Mortage IT, Inc., 2007 U.S. Dist.
  LEXIS 90555 (S.D. Fla. Dec. 10, 2007) (rejecting
  subpoenas duces tecum which sought any and all
  documents, files and records, reflecting or
  relating to the employment of the plaintiff as
  overly broad on their face)
• Badr v. Liberty Mutual Group, Inc., 2007 U.S.
  Dist. LEXIS 73437 (D. Conn. Sept. 28, 2007)
  (holding that defendants subpoena of any and
  all records relating to plaintiff was overbroad
  and limiting the subpoena to documents relating
  to prior claims or complaints against
  plaintiffs co-workers)
• Richards v. Convergys Corp., 2007 WL 474012 (D.
  Utah Feb. 7, 2007) (quashing overbroad subpoena
  duces tecum directed to plaintiffs former
  employer that sought all documents in your
  possession or control regarding the employment
  of the plaintiff)
• Richmond v. UPS Serv. Parts Logistics, 2002
  U.S. Dist. LEXIS 7496, at 13, 2002 WL 745588
  (S.D. Ind. Apr. 5, 2002) (holding that a
  discovery request for the plaintiff's entire
  personnel file was on its face overbroad)

33
Compensation Litigation

• Pachter v. Bernard Hodes, 891 N.E. 2d 279 (N.Y.
  2008) (deciding certified questions from the
  Second Circuit and finding that executives are
  covered by the New York Labor Law unless
  expressly excluded and holding that in the
  absence of a governing written instrument, when
  a commission is earned and becomes a wage
  for purposes of Labor Law article 6 is regulated
  by the parties express or implied agreement or
  if no agreement exists by the default common-law
  rule that ties the earnings of a commission to
  the employees production of a ready, willing
  and able purchaser of the services. See also
  Pachter v. Bernard Hodes Groups, Inc., 541 F.3d
  461, 2008 U.S. App. LEXIS 18922 (2d Cir. 2007)
• Weems v. Citigroup Inc., 453 Mass. 147, 2009
  Mass. LEXIS 19 (Mass. 2009) forfeiture provision
  in employee stock plan held not to violate state
  wage act)
• In re Citigroup, Inc., 535 F.3d 45, 2008 U.S.
  App. LEXIS 15645 (1st Cir. 2008) (forfeiture
  provisions of employers capital accumulation
  plans were unambiguous and enforceable)

34
Privacy in the Workplace in the Electronic Age

• Quon v. Arch Wireless Operating Co., 529 F.3d
  892, 2008 U.S. App. LEXIS 12766 (9th Cir. 2008),
  rehg denied, 2009 U.S. App. LEXIS 2259 (9th
  Cir. Jan. 27, 2009)
• Richard A. Paul Lisa Hird Chung, Brave New
  Cyberworld The Employers Legal Guide to the
  Interactive Internet, 24 Lab. Law. 109 (2008)
• Elizabeth C. Lawnicki, Location Surveillance in
  the Employment Context and the Right to
  Privacy, available at http//www.laborandemploym
  entcollege.org/ Contest_Winners/Contest-Lawnicki.p
  df

35
Collaborative Law

• Michael A. Zeytoonian, Pioneers on the Horizon
  Collaborative Law in Employment Disputes,
  available at http//www.hutchingsbarsamian.com/pd
  f/employment- disputes.pdf
• Collaborative Law Process Agreement for
  Business and Employment Cases, available at
  http//www.collaborativepractice.com
• R. Paul Faxon Michael Zeytoonian,
  Prescription for Sanity in Resolving Business
  Disputes Civil Collaborative Practice in a
  Business Restructuring Case, available at
  http//www.collaborativepractice.com/lib/PDFs/Pre
  sc riptionForSanityInResolvingBusinessDisputes.pdf
  

36
A New Generation of Discrimination Claims
Unconscious Discrimination

• Franita Tolson, The Boundaries of Litigating
  Unconscious Discrimination, 33 Del. J. Corp. L.
  347 (2008)

37
Bullying Claims in the Workplace

• Raess v. Doescher, 883 N.E.2d 790, 2008 Ind.
  LEXIS 313 (Ind. 2008) (The Indiana Supreme
  Court, over the dissent of one judge, declined to
  decide whether it was error to admit the
  testimony of a so-called bullying expert. A
  cardiac surgeon who was accused of being a
  workplace bully because he yelled at a
  co-worker, was sued by the co-worker for
  intentional infliction of emotional distress, and
  the trial court permitted a so-called bullying
  expert to testify. The Supreme Court did state
  as follows The phrase workplace bullying,
  like other general terms used to characterize a
  persons behavior, is an entirely appropriate
  consideration in determining the issues before
  the jury. As evidenced by the trial courts
  questions to counsel during pre-trial
  proceedings, workplace bullying could be
  considered a form of intentional infliction of
  emotional distress.)
• Tresa Baldas, States Take Aim by Taming Bully
  Bosses, The National Law Journal, April 9, 2007

38
Pregnancy Discrimination Act

• Doe v. C.A.R.S. Protection Plus, Inc., 543 F.3d
  178, 2008 U.S. App. LEXIS 19544(3d Cir. 2008)
  (Court found that a plaintiffs claim that she
  was terminated because she underwent a surgical
  abortion states a claim under the Pregnancy
  Discrimination Act)

39
Demise of Prima FacieCase Analysis

• Brady v. Office of the Sergeant of Arms, U.S.
  House, 520 F.3d 490 (D.C. Cir. March 28, 2008)
  (Lest there be any lingering uncertainty, we
  state the rule clearly In a Title VII
  disparate-treatment suit where an employee has
  suffered an adverse employment action and an
  employer has asserted a legitimate,
  non-discriminatory reason for the decision, the
  district court need not -- and should not --
  decide whether the plaintiff actually made out a
  prima facie case under McDonnell Douglas.
  Rather, in considering an employer's motion for
  summary judgment or judgment as a matter of law
  in those circumstances, the district court must
  resolve one central question  Has the employee
  produced sufficient evidence for a reasonable
  jury to find that the employer's asserted
  non-discriminatory reason was not the actual
  reason and that the employer intentionally
  discriminated against the employee on the basis
  of race, color, religion, sex, or national
  origin?)

40

• Additional papers authored by Mr. Fitzpatrick may
  be found at FJC online (http//cwn.fjc.dcn),
  including the following
• Employment Law Update
• New Federal Labor and Employment Legislation
• Proposed Federal Employment and Labor
  Legislation
• Emerging Employment Law Issues
• Review of the Supreme Courts Employment Cases
  (2007-2008 Term) And A Preview of the Coming
  Term (2008-2009 Term)
• Review of the Supreme Courts Employment Cases
  (2001-2006 Terms)

41
Retaliation Timing Issues

• Brenes v. City of New York, 2009 U.S. App. LEXIS
  6270 (2d Cir. Mar. 23, 2009) (the court held
  that the timing of an attempt to reject the
  plaintiffs appointment to teach at a school was
  probative of retaliatory animous even though the
  first negative evaluation of plaintiff occurred
  nearly ten months after the protected activity,
  where a transfer form prepared less than two
  months after the protected activity also
  attempted to reject his appointment. The court
  also found a series of negative performance
  evaluations at the start of the next school year
  to be suspicious, particularly given the fact
  that the plaintiff previously received only
  satisfactory evaluations)

42
Title VII Adverse Action

• Douglas v. Donovan, 2009 U.S. App. LEXIS 5456
  (D.C. Cir. Mar. 17, 2009) (Judge Janice Rogers
  Brown, writing for the majority, with Judge
  Tatel dissenting, held that a department heads
  failure to recommend a federal employee for a
  prestigious award (that includes a substantial
  financial benefit) is not an adverse employment
  action under Title VII as the harm is too
  speculative. The majority found there to be
  instances where there is a categorical
  presumption of harm and others where the court
  imposes a causation requirement. In the latter,
  the employee must go the further step of
  demonstrating how the decision caused
  objectively tangible harm)

43
Collective Action

• Sandoz v. Cingular Wireless, LLC, 553 F.3d 913
  (5th Cir. 2008) (plaintiff filed a putative
  collective action under the FLSA, and filed a
  motion to certify her collective action. The
  defendant submitted to the individual plaintiff
  a Rule 68 offer of judgment for 1,000 plus her
  reasonable attorneys fees, which plaintiff did
  not accept. The defense argued that its
  make-whole offer to the named plaintiff alone in
  a collective action under the FLSA divests the
  court of subject matter jurisdiction.
  Thereafter, plaintiff filed her motion for
  certificaiton of her collective action. The
  circuit court, on an interlocutory appeal, held
  that when a FLSA plaintiff files a timely
  motion for certification of a collective action,
  that motion relates back to the date the
  plaintiff filed the initial complaint,
  particularly when one of the defendant's first
  actions is to make a Rule 68 offer of judgment)
  

44
FMLA

• Rasic v. City of North Lake, 563 F.Supp.2d 885
  (N.D. Ill. 2008) (the district court,
  recognizing a split among the Circuits on the
  question of whether the FMLA permits a right of
  action against individuals who are public,
  rather than private, employees, held that public
  agency employees may be individual defendants
  under the FMLA. Modica v. Taylor, 465 F.3d 174,
  186 (5th Cir. 2006) (holding that public
  employees may be held individually liable under
  FMLA) and Darby v. Bratch, 287 F.3d 673, 681
  (8th Cir. 2002) (same) with Wascura v. Carver,
  169 F. 3d 683, 685-7 (11th Cir. 1999) (holding
  that there is no individual liability for public
  employees under FMLA) and Mitchell v. Chapman,
  343 F.3d 811, 829-30 (6th Cir. 2003), cert.
  denied 542 U.S. 937, 124 S. Ct. 2908, 159 L. Ed.
  2d 813 (2004) (same))

45
Compensable Time

• Gatewood v. Koch Foods of Mississippi, LLC, 569
  F.Supp.2d 687 (S.D. Miss. 2008) (in this donning
  and doffing FLSA case, the district court
  granted, in part, defendants motion for summary
  judgment where the union failed to collectively
  bargain on the issue of non-compensation for
  changing clothes at the beginning and end of
  each workday, finding that thus a workplace
  practice existed sufficient to invoke the
  defense set forth in 29 U.S.C. 203(o))

46
Class Actions

• Vondriska v. Premier Mortgage Funding, Inc., 564
  F.Supp.2d 1330 (M.D. Fla. 2007) (the district
  court discussed at some length the process of by
  which the district courts are to determine
  whether or not to certify a FLSA case as a
  collective action. The court noted that
  typically there is a determination made at the
  so-called notice stage and if that be
  successful, a second determination precipitated
  by a motion for decertification usually filed
  by the defendant after discovery has been
  completed. In this case, the court discussed at
  length the standards to be used when a court is
  making the determination at the notice stage.
  The court held that it could conditionally
  certify a class of FLSA plaintiffs seeking
  unpaid overtime, upon a showing by the
  plaintiffs of (1) whether there are other
  employees who desire to opt in to the action
  and (2) whether the employees who desire to opt
  in are similarly situated)

47
EEOC Litigation

• Equal Employment Opportunity Commn v. Watkins
  Motor Lines, 553 F.3d 593 (7th Cir. 2009)
  (holding that EEO litigation continues even
  though the charging party has settled)

48
Religious Freedom Restoration Act of 1993

• Potter v. Dist. of Columbia, 2009 U.S. App.
  LEXIS 4540 (D.C. Cir. Mar. 6, 2009)
• Fitzpatrick v. City of Atlanta, 2 F.3d 1112
  (11th Cir. 1993)

49
Dispute Resolution

• Gibson v. Neighborhood Health Clinics, Inc., 121
  F.3d 1126 (7th Cir. 1997).

50
RICO Claims Against Employers

• Brown v. Cassens Transp. Co., 2008 U.S. App.
  LEXIS 21990 (6th Cir. 2008).

51
Noerr-Pennington Doctrine

• Chalpin v. Snyder, 2008 Ariz. App. LEXIS 156 (2d
  Cir. 2008).

52
Similarly Situated Co-Workers

• Billue v. Praxair, Inc., 2008 U.S. App. LEXIS
  23980 (2d Cir. 2008).

53
TITLE

• Brown v. Wells Fargo Bank, 168 Cal. App. 4th 938
  (Cal. Ct. App. 2008).

54
Affirmative Action

• Rothe Dev. Corp. v. Dept of Def., Civil Action
  No. 2008-1017 (Fed. Cir. Nov. 4, 2008).
• Robert B. Fitzpatrick, Affirmative Action and
  Diversity Programs in the Workplace Some
  Questions (2007), available at http//www.robertb
  fitzpatrick.com/publisheda rticles.html.

55
Courtroom Testimony as Protected Speech

• Reilly v. Flipping, 532 F.3d 316 (3rd Cir. N.J.
  2008), cert. denied 2009 U.S. LEXIS 1338 (2009).

56
Disability Discrimination and Harassment

• Mangano v. Verity, Inc., 84 Cal. Rptr. 3d 526
  (Cal. Ct. App. 2008).

57
Whistleblowing and the First Amendment

• Thomas v. City of Blanchard, 548 F.3d 1317 (10th
  Cir. 2008).

58
S.E.C. v. Collins Aikman Corp.
2008 U.S. Dist. LEXIS 3367 (S.D.N.Y. Jan. 13,
2009)

59
FMLA Cases Continue to Proliferate
Brown v. Nutrition Mgmt. Servs. Co., 2009 U.S.
Dist. LEXIS 4199 (E.D. Pa. Jan. 21, 2009)

60
TITLE
Opinion and Order, McDonald v. Best Buy Co.,
Inc., 2008 U.S. Dist. LEXIS 78524 (C.D.Ill. Aug.
28, 2008)

61
Employer Sued for Using Lie Detector Test

• Worden v. Sun Trust Banks, 549 F.3d 334 (4th
  Cir. 2008).

62
Defense Discovery Seeking Access Plaintiffs
Facebook Account

63
Religious Discrimination Issues
Nantiya Ruan, Accommodating Respectful Religious
Expression in the Workplace, 92 Marq. L. Rev. 1
(2008)

64
FMLA

• Townsend-Taylor v. Ameritech Servs., Inc., 523
  F.3d 815 (7th Cir. 2008)

65
Americans with Disabilities Act

• Pulver, An Imperfect Fit Obesity, Public Health,
  and Disability Anti-Discrimination Law, 41
  Colum. J. L. Soc. Probs. 365 (2008)

66
Ethical Issues Regarding Misrepresentations
During Investigations

• In re Pautler, 47 P.3d 1175 (Or. 2002)
• Apple Corps. Ltd. v. Intl Collectors Socy, 15
  F.Supp.2d 456 (D.N.J. 1998)
• Richardson v. Howard, 712 F.2d 319 (7th Cir.
  1983)
• David B. Isbell Lucantonio N. Salvi, Ethical
  Responsibility of Lawyers for Deception by
  Undercover Investigators and Discrimination
  Testers an Analysis of the Provisions
  Prohibiting Misrepresentation under the Model
  Rules of Professional Conduct, 8 Geo. J. L. Eth.
  791 (Summer 1995)
• Arizona Ethics Opinion No. 99-11 (1999)
• Utah State Bar Ethics Advisory Opinion
  Committee Opinion No. 02-05 (2002)
• New York County Lawyers Association Committee
  on Professional Ethics Formal Opinion 737 (2007)

67
Passive Discrimination

• Jonah Gelbach et al., Passive Discrimination
  When
• Does it Make Sense to Pay Too Little?, __ Univ.
  Chi. L. Rev. __ (forthcoming 2009), available at
  http//papers.ssrn.com/sol3/papers.cfm?abstract_i
  d 1263931

68
Agri Processor Co., Inc., v. NLRB
129 S. Ct. 594, 2008 U.S. LEXIS 8451 (2008),
cert. denied, 514 F.3d 1 (D.C. Cir. 2008)

69
ERISA Cash Balance

• Brief for the United States as Amicus Curiae, AK
  Steel Corp. Ret. Accumulation Pension Plan v.
  West, 128 S. Ct. 2926 (2008)

70
Declaratory Judgments in Discrimination Cases

• Ameritech Benefit Plan Comm. V. Commcn Workers
  of Am., 220 F.3d 814 (7th Cir. 2000)

71
Summary Judgment in Employment Litigation

• Memorandum Granting Summary Judgment,
  Smith- Crockett v. Bullard-Havens Technical High
  School, 2008 U.S. Dist. LEXIS 96373 (D.Conn.
  Nov. 26, 2008)
• Ruling on Motion for Summary Judgment, Kwentoh
  v. State of Connecticut Dept of Children and
  Families Juvenile Training School, 2008 U.S.
  Dist. LEXIS 97727 (D.Conn. Dec. 2, 2008).

72
Constructive Termination

• Macs Shell Serv. V. Shell Oil Products Co., 524
  F.3d 33 (1st Cir. 2008)

73
ERISA Experimental Chemotherapy

• Summers v. Touchpoint Health Plan, Inc., 749
  N.W.2d 182 (Wis. 2008)