New Orleans senior counsel Clyde Jacob has penned a petition with San Francisco partner Wendy Coats to the U.S. Supreme Court to clarify whether or not a company that purchases another company with an existing union, hiring a majority of the workforce, may set its own initial terms from which to negotiate with the union or must negotiate from the existing terms. Clyde and Wendy submitted the petition on behalf of Creative Vision Resources LLC in a case against the National Labor Relations Board (NLRB) on behalf of Local 100 United Labor Union.
Attorneys David Klass and Travis Vance obtained a rare judgment as a matter of law, commonly known as a directed verdict, in a sexual harassment and retaliation case brought in the Western District of Virginia.
In a victory for Domino’s Pizza franchisee Cowabunga Inc., the 11th Circuit Court of Appeals denied enforcement of a National Labor Relations Board order finding that the company violated federal law by maintaining and enforcing an employment agreement prohibiting workers from pursuing class and collective action claims in court and causing employees to reasonably believe they were prohibited from filing unfair labor practice charges.
Attorneys Aaron Olsen and Patrice Nagle represented Peoplease in the case William Steve Valencia et al. v. North Star Gas Lt. Co. et al.
Peoplease, a payroll company, was dismissed from a proposed class action alleging a gas delivery company denied workers overtime, saying the workers did not show the company was their employer under the Fair Labor Standards Act or its state law equivalent.
Although the workers showed that Peoplease LLC performed some tasks for direct employer North Star Gas Ltd. Co., they did not show it could fire them, supervised their work or set their pay, U.S. District Judge Gonzalo P. Curiel said in his order granting Peoplease's dismissal motion.
One day after overturning the Obama-era’s joint-employer standard and in the waning days of Philip Miscimarra’s Chairmanship, the National Labor Relations Board struck down the pro-union use of micro-units, a tool used to more easily organize a workplace. In a case in which Fisher Phillips partners represented the employer, the Board overruled the 2011 case of Specialty Healthcare & Rehabilitation Center of Mobile in a 3-2 decision, reinstating the traditional community-of-interest standard for determining an appropriate bargaining unit in union representation cases (PCC Structurals, Inc.).
Client Very Pleased with Good Outcome
Attorney Michael Abcarian from the Dallas office of Fisher Phillips and Martin Thompson of the firm’s Memphis office successfully handled an unusual Representation Case (RC) Petition that was filed on November 24, 2017 by the International Union of Painters and Allied Trades (IUPAT), Houston, Texas. This case concerned an employee unit in Corpus Christi, Texas, where the client maintains a facility, and with whom Martin has worked for many years. The union’s attorney first sought to compel an Armour-Globe self-determination election, which allows a new group of employees to vote on the question of whether it wishes to join an established bargaining unit of the same union but at a different location. Here, the new group of employees was 200 miles away from the established unit in Houston. Because of this distance and for other reasons (including union hall provisions in the existing Collective Bargaining Agreement (CBA) that would not work in Corpus Christi), our attorneys argued that an Armour-Globe self-determination election was inappropriate. In the face of these circumstances, the union soon withdrew the Armour-Globe portion of its election demand.
Next, the union sought a bargaining unit description for the Corpus Christi employees that would impose the union’s Houston CBA on the new employee group (if the union were to be voted-in). Fisher Phillips attorneys objected to such a procedure as a matter of law because an existing CBA cannot be imposed on an Armour-Globe unit. After doing so, that request was abandoned by the union. Soon after, however, the union asked that the National Labor Relations Board (NLRB) determine employee voter eligibility by applying what is known as the “Daniel/Steiny” formula. Again, we objected on behalf of our client, because that method of determining voter eligibility is only appropriate for NLRB elections involving construction company employees, who may work some weeks/months and not others over an extended eligibility period. Notwithstanding that the union had represented in its RC Petition that our client was in the “construction” industry (so as to support a “Daniel/Steiny” voter eligibility request), following our objection, the union abandoned this request.
In addition to the above, the union also sought to have the election conducted away from our client’s premises at some unknown “neutral” location. Again, following our objection, that tactic failed. The union then tried to get the NLRB to permit the parties to sign a Stipulated Election Agreement (SEA) that left “open” for later determination the date, time and location of the election vote. Again, we objected and the union’s strategy again failed.
No matter the “end runs” sought by the union, the Fisher Phillips team had the answers, securing all arrangements for the SEA on terms that were both lawful and acceptable to our client. This included Michael’s authoring an appropriate description of the proposed voting unit’s inclusions and exclusions.
With the SEA signed, Michael worked closely with the client’s personnel to organize a campaign, issue several publications to employee voters, and hold some educational group meetings. Then just one week left before the election was to be conducted, Michael was notified by the NLRB that the IUPAT had decided to withdraw its RC Petition. The NLRB accordingly canceled the impending election.
Fisher Phillips attorneys represented the Florida Retail Federation, Inc. in its case against Miami Beach’s minimum wage ordinance. The District Court of Appeals sided with the Federation, and other appellees: the Florida Chamber of Commerce and the Florida Restaurant and Lodging Association. The business groups had challenged the Miami Beach ordinance after it was adopted in 2016.
The business organizations argued that the Miami Beach minimum wage increase was counter to existing Florida wage law. In 2003, the Florida Legislature required a single statewide standard for minimum wage. The next year, voters approved a constitutional amendment that increased the state’s minimum wage above the federal level. Miami Beach tried to hike its minimum wage to $13.31 per hour by 2021 for all businesses within the city's boundaries, The city claimed that the constitutional amendment gave the city that authority.
The Third District Court of Appeals ruled that the 2004 constitutional amendment did not conflict with the ability of the state to set the minimum wage. Thus the Court declared the Miami Beach ordinance invalid.
This is a victory for Florida businesses who now can continue to operate with a statewide minimum wage.
The Fisher Phillips attorneys who worked on this matter were Charles S. Caulkins, James C. Polkinghorn, and Candice Pinares-Baez, all from Fort Lauderdale.
Despite contrary rulings from around the country, Attorneys Whitney Selert and Allison Kheel succeeded in obtaining summary judgment in the first of its kind, misclassification class action against an exotic dance establishment. The Fisher Phillips attorneys represented a Gentleman’s Club in Las Vegas, Nevada, in a class action suit brought on by their Exotic Dancers, claiming they were misclassified as independent contractors and paid less than minimum wage in violation of the Minimum Wage Amendment to the Nevada Constitution. Early in the case, the Court granted our client’s motion to compel arbitration for dancers who signed agreements to arbitrate as part of their entertainer agreement. The Court later granted summary judgment to the Defendants against the remaining Plaintiffs, noting that each had signed an agreement acknowledging their status as independent contractors at the outset and that they acted in accordance with that understanding. The Court also noted that the economic realities test demonstrated dancers were properly classified as independent contractors. The Fisher Phillips attorneys were able to show that among the relevant factors to the Court’s analysis were the facts that the dancers were not restricted to performing only at the Defendants’ club; were not required to work any given days, times or shifts; were not required to stay for any length of time when working; and were allowed to negotiate any rate and retain the fees collected from club patrons for their performances.
We successfully represented a consortium of business groups in a lawsuit against the City of Miami Beach, convincing a court to overturn the City’s unilaterally imposed minimum wage ordinance introduced in 2016. On behalf of the Florida Retail Federation, the Florida Restaurant and Lodging Association, and the Florida Chamber of Commerce, among others, we argued to the Circuit Court in Miami-Dade County that state law prevents individual municipalities from venturing out on their own to establish minimum wage rates at odds with the statewide rate. A Circuit Court judge handed employers a complete victory in a March 27, 2017 order, striking down the Miami minimum wage ordinance and plainly stating that local jurisdictions have no right to take such actions. By claiming victory in this case, Fisher Phillips attorneys Charles Caulkins and Jim Polkinghorn (both partners in our Ft. Lauderdale office), with the assistance of Candice Pinares-Baez, safeguarded businesses from having to pay exorbitant wage rates in Miami, but also erected a shield for employers across the state, as this decision should prevent other Florida municipalities from taking similar action.
In a case that lasted over a decade, we represented a local school board against a tenured teacher who challenged her termination under the Tennessee Tenured Teacher Act. In 2005, the tenured teacher requested a hearing after the school board recommended her termination for unsatisfactory job performance. Under the Tenure Act, a board “shall” hold the tenure hearing within 30 days, but in this case no hearing was held for almost a year. When the hearing occurred, the school board upheld the termination. The teacher then filed a chancery court complaint challenging the decision. Specifically, she argued that her termination was invalid because the hearing was not held within 30 days as required by the Tenure Act. The chancery court upheld the school board’s termination decision. The teacher appealed to the Tennessee Court of Appeals, which upheld the termination but granted the teacher back pay due to the untimeliness of the tenure hearing. Both parties filed writs of certiorari to the Tennessee Supreme Court, which were granted.
An employee who suffered a fall in the workplace sued our client Stanley Black & Decker in an Ohio state trial court. He claimed that he suffered injuries to his neck and left shoulder. The case presented large potential exposure for the client, including extensive medical expenditures to repair the employee’s left shoulder and a cervical disc. Through complex expert medical testimony, we established for the jury that the workplace fall was not the cause of the employee’s neck or shoulder injuries, but instead that the employee’s conditions resulted from the natural degeneration of his body over a thirty year period. Our cross-examination of the plaintiff’s medical expert persuaded the jury that the expert’s opinions were uncertain and equivocal. The jury deliberated only fifteen minutes before returning its unanimous defense verdict.
The former president of the Investment Services Division of Affinity Federal Credit Union, the largest federal credit union in New Jersey, sued for wrongful termination, whistleblower violations, breach of contract, and defamation. She demanded judgment in the amount of $5.5 million, which included the reimbursement of over $500,000 in out-of-pocket legal fees she had paid to her attorneys. After ten witnesses and 24 days of testimony that included five days of cross examination and two days of re-cross examination of the claimant, the three person FINRA arbitration panel issued an award denying all of her claims.
The teachers at a prominent California charter school voted to decertify the United Teachers of Los Angeles as their union. We represented the teachers in successfully opposing the union’s objections to the election. The union’s objections alleged unlawful coercion by lead teachers during the campaign. We submitted briefing challenging the supervisory status of lead teachers and lack of coerciveness of their alleged statements. The California Public Employee Relations Board declined to decide on the supervisory status of lead teachers but still found in favor of the teachers, dismissing the union’s objections. The union declined to appeal the ruling and issued a disclaimer of interest, resulting in a major victory for the teachers at the charter school.
Plaintiff, the former President of our client Kenko International and a 25 year employee, alleged ten causes of action including age discrimination, disability discrimination, national origin discrimination, and breach of contract. He brought these claims against three different defendants under a joint employer theory of liability between the parent and subsidiary corporations. The case included significant amounts of discovery, including five sessions of plaintiff’s deposition and four defense depositions, one of which occurred in Japan. Plaintiff was represented by Shegerian & Associates and refused to resolve the case for anything less than $10 million.
A manager of our client, an international freight forwarding company, was selected for termination as part of a company-wide layoff. The plaintiff was selected for termination because of his short time with the company, his supervisor’s ability to absorb his job duties and poor performance. The plaintiff filed a lawsuit in the Los Angeles Superior Court against his former employer alleging six causes of action, for (1) wrongful termination; (2) disability discrimination; (3) failure to engage in the interactive process; (4) failure to accommodate disability; (5) religious discrimination; and (6) failure to reimburse business expenses. The plaintiff alleged that he was perceived to be disabled by his employer because of the obvious physical signs of his poor mental and physical condition. He contends that the employer failed to engage in the interactive process with him and to accommodate his disability and ultimately terminated him as a result of his disability. Additionally, the plaintiff alleged that once he disclosed that he was born in Tel Aviv, Israel to his supervisor, the supervisor began to discriminate against him on the basis of his religion. Finally, the plaintiff sought reimbursement of purported business expenses.
We recently obtained a unanimous defense verdict in an Ohio state trial court on behalf of a large construction client following a multi-day jury trial in a hotly contested case that presented significant exposure to our client, including the possibility of lifetime permanent disability payments that could have totaled well over $500,000.
- U.S. Supreme Court Vacates 9th Circuit Decision Deferring to DOL Rule That Upended 30 Years of Automobile Dealership Practice
Service advisors at our client’s automobile dealership sued in federal court alleging that the dealership failed to pay them overtime compensation in violation of the Fair Labor Standards Act (“FLSA”). We successfully moved to dismiss the overtime claims because section 213(b)(10)(A) of the FLSA exempts sales and service employees from the FLSA’s overtime requirements. The service advisors appealed to the 9th Circuit, which reversed the district court’s dismissal. The 9th Circuit deferred to the U.S. Department of Labor’s 2011 “regulation” providing that service advisors are not covered by the §213(b)(10)(A) exemption. This holding upended a settled industry practice relied upon by automobile dealerships nationwide for over thirty years.
A major packaging industry client was faced with a grievance from its union regarding the application of the new California paid sick leave law under the terms of the existing collective bargaining agreement. The union contended the company’s implementation of paid sick leave under the new law violated bargaining unit members’ entitlement to holiday pay under the labor contract. Although the law in this area is yet to develop, we were able to secure the arbitrator’s denial of the grievance.
A 63-year-old nurse at our client’s a full-service hospital in Santa Fe, New Mexico alleged that she had been the victim of age discrimination and harassment. She had been suspended and then she resigned after being counseled for poor work performance. She sued in federal court in New Mexico against the health system that employed her and three supervisors in her chain of command. We obtained summary judgment for the defendants on all of the plaintiff’s claims.
We represented a large international logistics client in a two-year investigation initiated by the Office of Federal Contracts Compliance (OFCCP), the agency that federal contractors’ compliance with federal labor and employment laws. The client maintains large contracts with the federal government and the investigation threatened to undermine the clients’ governmental relationships. The investigation focused on two alleged incidents involving a technician who alleged that he was retaliated against after he filed an initial complaint with a government agency. After interviewing virtually every employee at our client’s San Diego location, the OFCCP initially indicated it intended to issue a finding against our client. We were able to convince the OFCCP to reverse course, however. More than two years after the investigation was initiated, the OFCCP acknowledged that the evidence was insufficient to support the allegations and promptly closed the investigation.
Our client, a home health care agency, obtained a premium savings of more than $100,000 as a result of a workers’ compensation court appeal in Ohio that affirmed a unanimous defense verdict for our client. The company’s director of nursing alleged she suffered a workplace injury. We were able to demonstrate to the jury using maps and other visual evidence, however, that the injury was not sustained in the course of employment, but rather was due to the employee’s decision to abandon her duties.
We obtained summary judgment for our construction contractor client in an Ohio workers’ compensation court appeal involving significant injuries stemming from the use of a power saw. The court found that the injury resulted from the employee’s marijuana intoxication and denied the employee’s claim in its entirety. This ruling resulted in significant savings for our client in terms of workers’ compensation premiums.
A multiemployer pension fund demanded almost $14 million in mass and regular withdrawal liability from our client, a leading national hotel chain. The fund asserted that our client’s withdrawal from the fund several years earlier was part of an agreement or arrangement with other employers to withdraw, although our client had in fact closed the hotel for economic reasons. In discovery, we found that the fund’s demand resulted from an agreement between the fund and several of our client’s national competitors to stop contributing, switch to a national union pension plan, and leave our client with the bulk of withdrawal liability. We took the matter to arbitration under the withdrawal liability statute, and after testimony at the multi-day hearing and extensive briefing, the fund agreed to a settlement which negated the mass withdrawal demand, waived $5.3 million in future withdrawal liability payments, and returned $1.75 million to our client.
A multiemployer pension fund demanded approximately $760,000 in withdrawal liability from our client, a real estate private equity investment firm with over $2 billion in assets. Although our client had not contributed to the pension fund, the fund claimed that withdrawal liability was owing because our client was a successor to an entity that sold hotel assets to our client. We filed a complaint against the fund in a California federal court seeking a declaratory judgment that our client was not a successor and not liable to the fund for withdrawal liability, and was entitled to a refund of withdrawal liability paid, plus interest. The fund counterclaimed for payment of withdrawal liability, plus statutory interest, fees, liquidated damages and costs. After submission of the case on stipulated facts, the judge ruled that our client was not a successor because it had no notice prior to the asset purchase that withdrawal liability would be owed. The court further ruled that our client had no constructive notice of withdrawal liability because it had conducted all necessary withdrawal liability due diligence prior to the purchase. The court ordered the fund to return all withdrawal liability paid by our client, plus statutory interest.
A multiemployer pension fund demanded approximately $4,640,000 in withdrawal liability from our client, a grocery store chain operating in several states. The withdrawal had been caused by a sale of the client’s assets in one state, while the client continued to do business in another. We pointed out to the fund that the sale had divested the client of its most valuable stores, and we asserted that a statutory reduction in withdrawal liability available for sale of substantially all of an employer’s assets should apply. Pursuant to our calculation, withdrawal liability should have been approximately $1.04 million, not $4.6 million. The fund rejected this claim, arguing that the reduction should not apply because the sale was to a related party, because the sale involved only four of the client’s 13 stores, and because it disagreed with how we had valued the client’s assets. The case went to arbitration, and after a hearing, the arbitrator sided with our client on all issues, reducing withdrawal liability to the $1.04 million we had asserted, and awarding the client interest on overpaid withdrawal liability.
Our client was the largest contributor to a multiemployer pension fund which was in severe financial distress because the trustees had invested (and lost) virtually all of the fund’s assets in local real estate projects. Rather than shut down the fund and face serious mass withdrawal liability obligations, we spearheaded a merger of the fund into a national multiemployer plan which was much better funded. In addition to saving significant amounts of withdrawal liability, we were able to persuade the Pension Benefit Guaranty Corporation to contribute over $14 million to the effort, which substantially reduced amounts needed from the contributing employers. The merger took place and our client now contributes to the national fund, which is so well funded it does not assert withdrawal liability.
We represented the group health plan of a national insurance company as well as the plan’s individual fiduciary in litigation brought by the owner of a mental health facility seeking to recover payment for benefits he alleged had been provided under the plan. We investigated and determined that this individual had been soliciting participants for dubious services by offering free airfares to his facility’s location in California. When claims were denied, he then sued hundreds of health plans in an effort to collect, filing complaints that alleged dozens of causes of action. We defended his action brought in a federal court in Illinois, and were able to secure dismissal of his case on grounds of res judicata and collateral estoppel. The plaintiff appealed, and we prevailed in the 7th Circuit. In addition, we were able to secure sanctions against the plaintiff for his litigious conduct, and a published opinion in which the 7th Circuit warned other federal courts about the plaintiff’s “pattern of repetitious and meritless litigation.”
The plaintiff, a former CFO of our client, a manufacturing company, repeatedly failed to perform satisfactorily in his role as the top financial manager of a plant, causing hardship in the organization. He sued for age discrimination and wrongful termination in federal court in Kentucky. After years of litigation and testimony from multiple expert witnesses on each side, the court granted our motion for summary judgment in full and rejected the plaintiff’s motion to set aside that ruling.
- Summary Judgment and Jury Verdict Obtained for Employer in Age Discrimination, Retaliation Case and Then Both Are Upheld On Appeal
An executive’s department and job were eliminated in a reorganization. Our client found another position for him, albeit at a lower salary. The employee delayed filing a charge of discrimination with the Missouri Commission on Human Rights for three years. He then filed a lawsuit challenging his salary adjustment and a series of promotion denials over the entire three year period. The trial court granted summary judgment on all claims outside the 180 day charge filing period under the Missouri Human Rights Act. After a two-week jury trial, the jury returned a verdict in favor of our client on all remaining timely claims.
We successfully defended an automobile dealer client against an attempt by the National Labor Relations Board to obtain a Section 10(j) injunction. The Machinists Union had been certified to represent service advisors and technicians at our client Power Ford of Torrance. The dealership and the union never agreed on terms for an initial bargaining contract, however, and an employee filed a decertification petition. The petition asserted that the majority of the employees did not want union representation. Four days later, the dealership suspended bargaining pending resolution of the decertification vote. The union filed unfair labor practice charges to block the decertification vote. The NLRB issued a consolidated complaint alleging unfair labor practices by the dealership. It then sued in federal court in California, alleging that the dealership illegally assisted employees in their decertification effort withdrawing union recognition, and refusing to bargain for a contract. The court rejected the NLRB’s request for an injunction, declining to order the dealership to continue bargaining over a labor contract while decertification proceedings were ongoing.
- Building Contractor Wins All Aspects of Strike By Carpenters Union, Plus A Six-Figure Secondary Boycott Settlement
The Carpenters Union struck our client, a national construction contractor, at three large construction projects in Southern California. The strike ended after less than a month, the strikers were replaced, and no delays occurred on any of the projects. We obtained two injunctions against violent and mass picketing and also pursued unfair labor practice charges before the National Labor Relations Board which issued a complaint against the union. In addition, we filed a section 303 lawsuit against the union in federal court that resulted in a six-figure settlement to cover our client’s added security costs necessitated by the union’s unlawful secondary boycott activity.
We defeated a single plaintiff's attempt to certify a class action in federal court in Georgia consisting of thousands of individuals who were the subject of adverse consumer background reports. The plaintiff filed suit under the Fair Credit Reporting Act, alleging that our client The Phillips Agency provided her employer with a criminal background report that contained inaccurate information about her. In connection with her allegations that The Phillips Agency failed to maintain strict procedures to ensure the accuracy of the criminal background report, the plaintiff asked the court to certify a class action consisting of all individuals who had ever been the subject of an adverse consumer background report generated by The Phillips Agency. We opposed class certification because there was no evidence that the proposed class members were the subject of inaccurate criminal background reports. We emphasized that The Phillips Agency had received only four consumer disputes over a five year period. The plaintiff countered that the accuracy of the reports ultimately did not matter if the company failed to utilize strict procedures in generating them.
- Class Action Defeated; Remaining Claims Dismissed for Failure to Bring Them to Trial Within Five Years
Our client DHL Express (USA), Inc. was sued in Los Angeles Superior Court, alleged to be a joint employer with another trucking company. The plaintiff asserted claims for unpaid minimum wage and overtime, wage statement penalties, waiting time penalties, meal period premiums, rest period premiums, and unfair competition. Through two amendments to the complaint, an additional 15 individuals were added as plaintiffs and putative class representatives. Two of the plaintiffs withdrew following aggressive discovery and damaging deposition testimony. The remaining 14 plaintiffs moved for class certification, which was argued in June 2011. The court denied class certification as to the plaintiffs’ meal period, rest break, and split shift claims. The plaintiffs’ remaining claims were partially certified, with the class period confined to a period of less than four years. We filed a motion for summary judgment as to the partially certified claims, which resulted in the court dismissing the wage statement and waiting time penalty claims against DHL.
Our client Drew Ford in San Diego was sued by a former employee who was terminated after 32 years of employment following an altercation with his supervisor. He alleged breach of contract not to terminate except for good cause, breach of the implied covenant of good faith and fair dealing, wrongful termination in violation of public policy, harassment based on race, national origin and ancestry, failure to prevent harassment, and intentional infliction of emotional distress. The case was heard in arbitration before a retired judge who granted summary judgment on all claims on behalf of all defendants. The arbitrator found a complete failure by the plaintiff to present admissible evidence to support any of his claims. Thereafter, the arbitrator awarded our client more than $36,000 in attorneys’ fees and costs.
A former truck mechanic sued our client Ryder Truck Rental, Inc. in California state court alleging racial harassment, race discrimination, failure to prevent harassment and discrimination, retaliation, constructive discharge in violation of public policy and assault and battery. The plaintiff, who was African-American, claimed that the company’s failure to take appropriate corrective action against two Caucasian employees who allegedly made racially offensive remarks created a hostile work environment. He also claimed that, after he complained about the offensive conduct and filed a discrimination charge with the EEOC, the company retaliated against him by denying without good reason his request to transfer to a different work location. Shortly after eventually transferring to another site, the plaintiff was involved in a physical altercation with a Caucasian fellow mechanic, and he claimed this amounted to assault and battery. The plaintiff went on leave and then resigned.
An employee of our client, the South Carolina Department of Health & Environmental Control, sued in South Carolina federal court alleging state and federal claims of discrimination based on race/color, gender and age, along with retaliation. Additionally, the plaintiff alleged that she was denied a promotion four times based on her military service in violation of USERRA. We moved to dismiss the plaintiff’s age discrimination claim and our motion was granted. The court later dismissed the plaintiff’s race and gender discrimination claims, as well as her allegation of retaliation. The court, however, found that it lacked subject matter jurisdiction over the plaintiff’s USERRA claims because they were claims brought by a state employee against a state agency. Those claims were remanded to state court. The state court dismissed two of the plaintiff’s four USERRA claims. The remaining two claims were tried before a jury over five days. At the completion of the trial the jury deliberated for less than four hours before returning a complete defense verdict.
Two former managers of our client Arrow Truck Sales, Inc. sued in the Los Angeles, California Superior Court for harassment and discrimination based on race/color, national origin, religion and age along with retaliation for opposing such harassment and discrimination. The plaintiffs also sued Volvo Group North America, and they were represented by well-known plaintiffs’ counsel Carney Shegerian. Following a 12-day trial, the jury deliberated for only two-and-a-half hours before returning a complete defense verdict for our client and its managers who were also sued. The jury also found that Volvo Group North America was not the plaintiffs’ employer. The plaintiffs’ settlement demand before trial was $4 million and their attorney asked the jury for more than $12.5 million in compensatory damages during closing argument.
Our client CHRISTUS Health Texas maintains an Occupation Injury Assistance Plan under the unique nonsubscriber provisions of Texas workers' compensation law. The Plan provides applicable benefits, including wage replacement benefits (WRB), to Plan participants who are temporarily totally disabled due to an occupational injury. It denied WRB to a nurse employed in its St. Michael Health System who claimed to have injured her back while lifting a patient because she submitted insufficient qualifying medical evidence to support her claim. The nurse filed an ERISA lawsuit in Texas federal court challenging the denial of her claim for benefits. We moved for summary judgment on behalf of the Plan, which the court granted, holding that there was substantial evidence in the record to support the Plan’s decision.
A food service employee of our client, Symon Says Enterprises, Inc., a McDonalds franchisee, was terminated after she refused to confirm that she had taken prescribed medication and was cleared to return to work after exposure to whooping cough. Our client was informed by the local health department that whooping cough was potentially fatal to unborn fetuses, and two of the employee’s co-workers at the time were pregnant.
A former employee of our client Emerson Process Management sued, alleging discrimination based on sex and childcare responsibilities under Title VII and the Pennsylvania Human Relations Act. Following a week-long jury trial in Pennsylvania federal court the jury returned a complete defense verdict.
An employee had worked as a certified chemical operator for our client Erachem Comilog, Inc. for ten years and he had worked in the manganese dioxide industry for more than 33 years. He sought workers’ compensation benefits in Tennessee, alleging that as a result of exposure to heavy metals at work he sustained a serious neurological condition that exhibited Parkinson’s-like symptoms. He also claimed to suffer from COPD and a dermatologic condition. At trial, the plaintiff presented medical evidence in the form of expert testimony from three physicians from Vanderbilt University, including the doctor who had been treating him. We countered with testimony from neurologic and pulmonary experts with experience addressing concerns related to the actual substances alleged to have caused the plaintiff’s conditions. In spite of the testimony in support of the plaintiff’s claims and the considerable emotional appeal of his case, we obtained a complete victory for our client. The trial court found that the plaintiff failed to establish that his medical conditions were the result of exposure to metals or chemicals in the workplace. The Tennessee Supreme Court’s Special Workers’ Compensation Appeals Panel affirmed that ruling.
A former branch manager of First Technology Federal Credit Union fired for multiple lending irregularities shortly after undergoing heart surgery filed for bankruptcy and failed to list his employment claim in the bankruptcy case. He then sued our client in Texas federal court under the Age Discrimination in Employment Act and the Americans with Disabilities Act. We moved for summary judgment on the ground that the plaintiff was precluded from suing because he did not list his potential claims on the personal property schedule in his bankruptcy case. Although the plaintiff argued that he was unsure whether he had a claim against his former employer at the time he filed for bankruptcy, the court nonetheless granted summary judgment for our client. The court held that the plaintiff was sufficiently aware of the facts underlying his later lawsuit when he filed for bankruptcy and had a reason to hide his alleged claim in order to avoid using any potential recovery to pay his unsecured debts.
The Equal Employment Opportunity Commission sued our client Graphic Packaging International, Inc. in federal court in Illinois alleging failure to accommodate an employee who suffered from sleep apnea. The EEOC contended that the employee had requested accommodations on more than one occasion two years before filing his charge of discrimination. We moved to dismiss the case as untimely but the EEOC argued that, because the employee was allegedly denied prior accommodations, he believed additional requests for accommodation would be futile and his requests for accommodation should be treated as timely under the “futile gesture doctrine.”
Former employees of our client filed suit in Tennessee federal court under the Fair Labor Standards Act alleging that they and the class they purported to represent were misclassified as outside sales employees and were therefore deprived of the minimum wage and overtime. Their allegations included that they were required to spend the majority of their time on inside sales rather than outside sales, and that the company’s policy was not to enforce the outside nature of the position.
We won an impasse arbitration award for our client Clark County School District that resulted in the District saving $11.5 million for the remainder of the 2013 school year. Clark County School District is the one of the largest school districts in the nation and includes approximately 311,000 students.
Our client Ricoh Americas Corporation was sued by a former member of its sales force who alleged her disability was not reasonably accommodated, and she sought more than $250,000 in damages. The case was heard in arbitration in Seattle. We established that the company had the ultimate authority to determine and implement accommodations of its choosing, and we proved that the employer acted appropriately in accommodating its employees. The arbitrator returned an award completely in the company’s favor.
Texas is the only state that allows employers to completely opt out of, or “nonsubscribe” from, the traditional workers’ compensation system. Nonsubscribers can avoid high premiums and a rigid state-mandated bureaucracy and instead implement self-funded occupational injury benefits plans that are better tailored to their industry. Many nonsubscribers have realized significant savings compared to the traditional workers’ compensation system. The tradeoff for nonsubscribers, however, is that their injured employees may sue to recover damages based on the employers’ alleged negligence. In these negligence actions, nonsubscribers are barred from asserting any traditional affirmative defenses, such as the employee’s contributory negligence. In addition, the law permits an employee to file a separate suit under ERISA where an employer’s occupational injury plan is alleged to have wrongfully denied benefits.
An employee of our client CHRISTUS St. Michael Health System in Texarkana, Texas, was the single mother of a son with severe asthma that required periodic breathing treatments and administration of medicine. She requested and used intermittent FMLA leave for more than two years before she was terminated for excessive tardiness. She sued, alleging that St. Michael interfered with her FMLA rights, retaliated against her for exercising them and discriminated against her because of her association with a disabled person, her son. The case proceeded to jury trial in federal court in Texas. At trial, we demonstrated that the plaintiff’s morning activities exceeded the scope of her intermittent leave certified under the FMLA. The evidence showed that she had a pattern of sporadic, unpredictable tardiness regardless of her scheduled starting time, which she attributed to dropping off her four children at three different locations each morning. Further, we showed that she was offered but refused to consider alternatives that could have helped her arrive at work on time, and she could have avoided virtually all of her tardiness by simply leaving home a few minutes earlier in the mornings. After approximately one hour of deliberations the jury found in favor of St. Michael on all of the plaintiff’s claims.
A 20 year employee of our client Lincoln Parish Detention Center (LPDC) was named interim superintendent of the facility for three years. After the facility was privatized a male employee of the private company was named warden of the facility and the interim superintendent was offered a lesser position at lower pay. She declined the offer, quit and sued for sex discrimination. We obtained summary judgment in federal court in Louisiana but the plaintiff appealed, attaching both the decision to privatize the facility and the failure to give her the top job there.
A former employee of our client Guerrieri Management, Inc., which owns 11 Taco Bell franchises in the Tampa, Florida area claimed that when he returned to work in December 2008 after two weeks of U.S. Army reserve duty, the company did not “promptly” return him to work as an assistant restaurant manager. He sued in federal court in Florida, alleging that the failure to "promptly" return him to work was due to discrimination based on his military service in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). After a three- day trial in which we presented evidence that the plaintiff had stopped communicating with his employer following his military service, the jury agreed that our client had not discriminated against the former employee because of his military service, and that the company did not fail to promptly return him to work. The plaintiff appealed and the 11th Circuit affirmed. It rejected his arguments that the trial court committed error during the trial and that he did not receive a fair trial.
- Summary Judgment Obtained Against Challenge to Conversion of Defined Benefit Pension Plan to Cash Balance Formula; 3rd Circuit Affirms
We defended our client AT&T, Inc. in a class action lawsuit challenging the company's conversion of its traditional defined benefit pension plan to a cash balance formula. The plaintiffs alleged that this change violated the Age Discrimination in Employment Act and the Employee Retirement Income Security Act. This was one of the first of many similar lawsuits filed around the country challenging employers’ moves to cash balance formula based pension plans. We were part of a team of lawyers that obtained dismissal of most of the claims by a New Jersey federal court and thereafter obtained summary judgment dismissal on all remaining claims. The 3rd Circuit later affirmed the district court's summary judgment ruling.
A commissioned salesperson employed for two months by our client, a technology products company, sued in California state court alleging that her pregnancy was a motivating reason to include her in a layoff of 13 employees following an abrupt decline in revenues during the California state budget crisis. We established that the company’s officers placed the plaintiff’s name on the layoff list more than two weeks before learning of the plaintiff’s pregnancy. Nonetheless, the plaintiff claimed she was treated adversely on account of her pregnancy and then laid off after being told the company could not afford to invest in her because of her pregnancy and uncertainty about whether she would return to work, a statement the company denied.
A former flight nurse employee of our client Intensive Air, Inc., an air ambulance company, sued in Florida state court alleging breach of employment contract and failure to pay wages in violation of Florida statutes. At the conclusion of the plaintiff’s case, the court granted our motion for directed verdict. It held that the job offer letter the plaintiff received did not constitute an enforceable contract for employment, and therefore the company could not have breached the "contract." The court granted judgment in favor of our client on all claims.
The Teamsters' Airline Division, which represents approximately 40,000 employees in the U.S. airline industry, filed a lawsuit against our client Amerijet International, Inc., a cargo air carrier based in Miami and servicing various cities in Mexico, Central and South America, and the Caribbean. The lawsuit alleged various claims under the Railway Labor Act, including multiple retaliation allegations as well as breach of contract claims and an attempt to enforce ten different System Board of Adjustment awards. The case arose out of certain actions taken by Amerijet during and after a brief strike by the Teamsters. Soon after the Teamsters’ complaint was filed in federal court in Miami we moved for summary judgment. The court granted summary judgment in favor of Amerijet on all counts.
A former receptionist for our client, Pearson Animal Hospital, Inc., sued in California state court for pregnancy discrimination and related claims. She alleged that she was prepared to return to work following her maternity leave, but that the hospital offered her only part-time work and failed to communicate with her properly about reinstatement. She also claimed that the hospital owner and supervisor failed to accommodate her morning sickness by allegedly failing to allow her to eat and drink throughout the day and forcing her to carry and drag large bags of dog food and other heavy items. Finally, the plaintiff alleged she was not permitted to take her legally mandated rest periods and full lunch periods.
The American Federation of State, City and Municipal Employees (AFSCME) attempted to organize 100 service and maintenance employees at our client Presbyterian Homes & Services of Kentucky's Louisville Campus. We advised our client during the organizational campaign. The company won the representation election by a decisive 65% to 35% margin.
A former exotic dancer sued our client, a gentleman’s club in Portland Oregon, alleging that she was improperly classified as an independent contractor instead of an employee and seeking more than $100,000 in back wages. After a trial that received significant media attention, we prevailed and the court ruled that the performer had been properly classified.
Following a three-day trial in federal court in Dallas, the jury unanimously rejected a nurses’ claim for unpaid wages under the Fair Labor Standards Act against our client Dallas County Hospital District/Parkland Health & Hospital System. The nurse received an unpaid 30 minute meal break every day, which was automatically deducted from her time record, but she claimed she did not get to take her full meal breaks because supervisors frequently called her for assistance. The plaintiff initially sought to represent a class consisting of hundreds of nurses but we defeated the plaintiff’s motion for class certification. The nurse was allowed to proceed on her own claims but the court granted our motion for summary judgment on most of the workweeks at issue, leaving only 18 workweeks to be addressed at trial. After trial, the jury found that the plaintiff failed to show that she was prevented from taking her meal breaks and issued a complete defense verdict.
An employee of our client Time Warner Inc. sued in federal court in California alleging that the company violated the Fair Labor Standards Act by using the timekeeping practice known as rounding, in which time worked by employees is rounded either up or down to the nearest 15-minute mark. According to the plaintiff, the company does not fully pay employees for all the time they work. An employee who clocked in at 8:07 a.m. would have his time rounded to 8 a.m., while an employee who clocked in at 8:08 a.m. would have his time rounded to 8:15 a m. We and co-counsel moved to dismiss the case, arguing that the plaintiff failed to include any allegation that he was actually harmed by the policy or that he actually worked overtime and received less than the amount due to him. The court granted our motion. It maintained that the plaintiff’s allegations that the company had a practice of rounding were insufficient to plausibly suggest an FLSA violation, nor did the complaint contain allegations that employees were actually underpaid.
A former employee of our client National Distributing Company sued in New Mexico state court alleging that he should have been eligible for Long Term Disability (LTD) benefits under the company’s plan based on erroneous statements from an individual in human resources, even though he was not technically eligible to participate under the terms of the Plan.
A manager at our client Clark Atlanta University hired a manager via a letter agreement stating that his base salary would be supplemented with an annual bonus of “up to 15%” of his base salary based on his successful achievement of mutually agreed-upon performance objectives. When the University refused to pay bonuses because the manager had never participated in establishing performance objectives, the manager sued in Georgia state court for breach of contract, claiming that his good-to-excellent annual staff performance evaluations both established the performance objectives and demonstrated his satisfaction of those performance objectives.
Our client the Housing Authority of the City of Los Angeles terminated its former assistant executive director's employment as a result of alleged improprieties regarding her dealings with a consultant. She sued in California state court claiming she was terminated and harassed because of her race, her gender and because she complained about discrimination and possible illegal gifts of public funds. The plaintiff sought an estimated $6 million in compensatory damages, penalties, attorney's fees and costs in her suit. After an eight-week jury trial in downtown Los Angeles, the jury returned a verdict for the Housing Authority on all of the plaintiff’s remaining claims, finding that she was not terminated due to her race, gender or because of any alleged complaints about discrimination or the use of funds by the Authority. The court previously granted our motion for a directed verdict on the plaintiff’s harassment claims. The Housing Authority was also awarded its costs of litigation.
A former employee of our client General Dynamics Aviation Services Corporation sued, alleging discrimination and retaliation in violation of the Florida Civil Rights Act. We filed a motion to compel arbitration based on the company’s dispute resolution procedure. The plaintiff argued in opposition that the company’s dispute resolution procedure did not constitute a valid arbitration agreement because he never signed it, nor did he receive anything from the company, monetarily or otherwise, to give up his right to a trial by jury. The trial court granted the motion to compel arbitration and Florida’s Fourth District Court affirmed. The appellate court found that the dispute resolution procedure constituted a valid agreement to arbitrate and that the fact that the plaintiff never signed the agreement had no effect on its validity. The court found the fact that the plaintiff continued to work for the company after the dispute resolution procedure was implemented constituted his agreement to be bound by the terms of the policy.
Our client DHL Express terminated a manager for poor performance and withheld a quarterly incentive pursuant to its bonus program. The manager sued in Oregon state court, claiming violations of Oregon's wage and hour law and breach of contract. He argued he was wrongfully terminated and thus entitled to the bonus, plus penalty wages and other damages. At trial, we successfully argued that the employer has the ultimate authority to determine whether its employees are performing up to company standards, and that the company was well within its rights to enforce its incentive program according to its terms. The trial court found that the termination was proper and granted a full and complete victory for our client.
The 9th Circuit upheld the National Labor Relations Board’s ruling that our client, the Aladdin Resort and Casino in Las Vegas, did not commit an unfair labor practice when its managers briefly interrupted employees’ conversations to express the employer’s views on unionization.
We filed a claim in arbitration against a former executive of our client who assisted a third party in acquiring a competitor while the executive was still working for our client. After the acquisition, the executive went to work for the competitor in a leadership position. In addition to breach of the executive’s duty of loyalty, the case involved claims of usurping a corporate opportunity, misappropriation of confidential information, and spoliation of evidence. After a hearing the arbitrator awarded our client more than $1.5 million in damages, including $500,000 in punitive damages.
The former president/COO of a luxury automobile dealership in Beverly Hills, California challenged his termination in an arbitration proceeding. He claimed he was fraudulently induced to move from Florida to accept the position with the dealership, and that he was terminated without "justifiable cause," which pursuant to his employment agreement, would have entitled him to salary and five percent of the dealership's net profits for the more than two years remaining on his three year contract. In total, the former executive was seeking more than $9 million in damages, penalties, attorneys' fees, and costs.
Our client CalsonicKansei North America, Inc. found that one of its employees and his wife were involved in a “rent-a-patient” medical plan fraud scheme. Under such a scheme outpatient medical centers and doctors recruit individuals covered under generous medical plans to undergo fraudulent or unnecessary medical procedures in exchange for cash or for discounted cosmetic surgery. The employee was terminated after it was found that his wife had undergone a colonoscopy, an endoscopy, and a breast augmentation, all in a short time period, and the employee was unable to show that he had paid for his wife's cosmetic surgery. The employee and his wife sued and Blue Cross-Blue Shield of Tennessee in California state court, alleging that he was wrongfully terminated in violation of public policy and that Calsonic breached an implied contract to terminate him only for cause. His wife alleged that her medical privacy rights were violated because Calsonic learned of her cosmetic surgery. The employee's wrongful termination claim and the wife's negligence claim were eliminated via demurrer. Calsonic and BCBST then filed a summary judgment motion. The court ruled that despite the fact that the employee had been a Calsonic employee for over 20 years he remained employed at will and Calsonic did not need good cause to terminate his employment. The court also ruled that, even if the employee had a right to be terminated only for cause, Calsonic had good cause for terminating his employment. Finally, the court agreed with Calsonic and BCBST that the disclosure of information regarding the wife's cosmetic surgery was lawful because it was done during the course of a medical plan fraud investigation.
In a case of first impression the U.S. Court of Appeals for the 11th Circuit upheld the dismissal of claims by the plaintiff that he was subjected to discrimination based on his HIV status and retaliation by his employer, our client Advan Inc., and its individual officers. The plaintiff sued in federal court in Florida asserting discrimination and retaliation claims under the Americans with Disabilities Act (ADA) and the Florida Omnibus AIDS Act (FOAA). The trial court dismissed the claims against the officers individually and the 11th Circuit affirmed. It noted that the ADA's definition of “employer” is similar to that under Title VII and the Age Discrimination in Employment Act and neither of those laws provide for individual liability.
Whirlpool Corporation filed suit in state court in Michigan to enforce a non-competition agreement against a former employee who was hired by our client Electrolux as a salesman. Whirlpool alleged that the employee violated an agreement containing a 12-month ban on working for a competitor. We removed the case to federal court. The court ruled that the agreement was unreasonable because it had no geographic limitation and as such would bar the employee from selling home appliances anywhere in the world. The court also found that Whirlpool failed to show that the employee had disclosed confidential company information or that he was likely to do so. The court wrote that under Michigan's Antitrust Reform Act, a post-employment non-competition agreement had to protect an employer’s "reasonable competitive business interests" and had to be "reasonable as to its duration, geographical area, and the type of employment or line of business." The judge also pointed out that much of the information Whirlpool cited as confidential was either generally known in the appliance trade or was readily ascertainable.
Our client terminated a manager two months before the end of the company’s annual bonus period. He later sued in Georgia state court, claiming entitlement to 10/12s of the total bonus amount. All of the bonus plans given to the employee were silent about whether a bonus would be paid in the event of a mid-year termination of the manager. None of them stated that one of the eligibility criteria for payment of the bonus was completion of the entire annual bonus period. The manager claimed that he had earned a right to the bonus and asked the court to impose an implied pro rata provision in order to avoid a forfeiture of his allegedly earned compensation. After hearing all of the evidence, however, the jury found for the company and denied the manager the pro rata share of the bonus he claimed.
Our client, Cooperative Retirement Services of America, which manages senior living communities across the country, was sued by two former certified nursing assistants who worked at its Portland, Oregon facility. They alleged wrongful discharge, retaliation and other related claims, and sought over $11 million in damages. Following an eight-day jury trial in Oregon state court the jury spent only two and a half hours in deliberations before returning a unanimous verdict for the defense.
A longtime accounting executive of our client began experiencing severe emotional distress following certain managerial and SEC reporting requirement changes. Ultimately, the stress caused the executive to leave active employment and seek medical treatment. He applied for and received long-term disability and Social Security disability benefits relating to his medical condition. He then sued in federal court in Georgia, alleging discrimination and harassment on the basis of age and intentional infliction of emotional distress. Specifically, the executive claimed that he was demoted and subjected to numerous instances of harassment based on his age and that the Company’s actions towards him were “outrageous” and designed to intentionally cause the emotional distress he suffered.
- Jury Rejects Layoff Discrimination Claims and 6th Circuit Affirms; Summary Judgment Obtained in Similar Case
A hotel sales manager was laid off as part of our national hotel chain client’s post-September 11 reductions in force. She sued in federal court in Ohio, alleging that she was selected for layoff on account of her age and gender. The plaintiff had demanded $2 million to settle the case, and seven other laid off managers from the same division also filed similar claims, each demanding seven-figure settlements. After a seven day trial the jury issued a complete defense verdict.
Seven plaintiffs brought a Section 1981 race discrimination case in North Carolina federal court against a Pizza Hut franchisee that owns and operates approximately 95 Pizza Hut restaurants in eastern North Carolina. Plaintiffs were two current and five former African-American employees who worked in positions ranging from assistant manager to server. The plaintiffs alleged sixteen different claims, including discrimination in wages, raises, terminations, promotions and rehiring. They sought damages in excess of $1 million. After more than 50 depositions were taken, we moved for summary judgment on the grounds that the plaintiffs could not establish the necessary elements of any of their claims. The court agreed. It found that the plaintiffs had failed to present any admissible evidence establishing a genuine issue of material fact and it granted summary judgment against the plaintiffs on all of their claims.
A high-level female executive of our client, a national communications company, was fired for misuse of her corporate credit card. She had used the company’s credit card for unapproved charges and failed to file expense reports in violation of company policy. She sued in federal court in Georgia, alleging that her termination was based on gender. She also contended that her supervisor harassed her by treating her differently than her male co-workers and discriminated against her by paying her less than male employees. We moved for summary judgment and the court granted our motion. The court held that the plaintiff was unable to show that the reason that the company gave for her discharge was pretext for unlawful discrimination. Although the plaintiff claimed that there were instances where similarly situated male employees had also engaged in poor recordkeeping and abuse of the company’s corporate card policies without being terminated, she failed to produce any specific facts to support her allegations. Finding that there was no convincing evidence that men and women were treated differently, the court dismissed all claims.
During a union organizing campaign in El Paso, Texas, the union seeking to represent employees of our client Albertson’s, Inc. circulated a forged letter purportedly between two company executives suggesting that it would convert its non-union stores, in El Paso and elsewhere, to low-price "Super Saver" stores. The union won the election by two votes in one of those stores. Although the hearing officer overruled the employer’s objections to the election, the National Labor Relations Board reversed. It maintained that a reasonable employee would not have recognized the letter as a forgery, and that the letter therefore impermissibly interfered with the election. A new election was ordered. Remarkably, then-NLRB Member Wilma Leibman, who usually voted in favor of the union, joined the unanimous decision of the three-member panel of the NLRB.
A cashier at our client, convenience store chain Spectrum Stores, Inc., was terminated for not showing up for work. He sued in federal court in Georgia. The plaintiff, in his early 20's, alleged that he was sexually harassed by his over-50 female supervisor. He claimed she touched him inappropriately, grabbed him and rubbed up against him. He claimed his termination was in retaliation for his not responding to the supervisor’s sexual advances.
Our client, a large manufacturing company, fired an eleven-year employee and union member for threatening his supervisor. The employee filed a grievance and was later reinstated by an arbitrator. He next filed a five-count complaint in New Jersey state court alleging racial discrimination under the New Jersey Law Against Discrimination and various state common law claims. We removed the case to federal court and filed an immediate motion to dismiss two of the counts on statute of limitations grounds. The court granted that motion. We then filed for summary judgment on the remaining three counts. The court granted our motion in its entirety while also denying the plaintiff’s cross-motion to extend discovery. The court held that the plaintiff was unable to establish a prima facie claim under the New Jersey Law Against Discrimination since he could not establish that he was performing his job duties at a level that met the company’s reasonable expectations. Furthermore, the plaintiff was unable to rebut the company’s articulated legitimate reason why it terminated him – namely, its good faith belief that the plaintiff had threatened violence against his supervisor.
A former head football coach at our client, an independent college in South Carolina, sued in South Carolina state court for breach of contract. He alleged that after a series of written contracts, he had an oral contract of employment with the college’s former athletic director extending through the college’s next fiscal year. He was fired at the end of the football season and he sought damages through the end of the fiscal year. Following trial, the court found that the coach had no enforceable written contract, and that any alleged oral contract violated the Statute of Frauds, giving our client a complete victory against the former coach.
An employee of the Rockledge Christian Center was terminated for engaging in pre-marital sex, which was a violation of her agreement to adhere to a Christian lifestyle both in and out of work. She sued the church in a Florida federal court for discrimination based on her pregnancy and gender in violation of Title VII and Florida law. The court granted our motion to dismiss the case, holding that it had no jurisdiction to hear the case under the Free Exercise and Establishment Clauses of the First Amendment to the U.S. Constitution. The court found the plaintiff to be a functional minister of the church in her position as an assistant teacher to pre-school children. It reasoned that to apply anti-discrimination laws to the church’s personnel decisions would raise serious constitutional questions in light of the Constitution’s guarantee of the separation of church and state. Although the plaintiff initially filed a notice of appeal, she later voluntarily dismissed the appeal with prejudice.
A former employee of our client sued for sexual harassment and constructive discharge alleging violations of Title VII and Georgia state common law. We filed a motion for summary judgment in federal court in Georgia which the court granted, finding that the alleged physical and verbal misconduct was not severe or pervasive or was at least partially welcomed. The court further held that even if the conduct was severe or pervasive, the plaintiff failed to provide the company with adequate time to remedy the situation, since the first notice provided of the harassment was the plaintiff’s counsel’s “demand” letter. Finally, the court maintained that once notice was provided, the company's actions were appropriate and lawful, negating the plaintiff’s constructive discharge claim. The plaintiff appealed but the 11th Circuit affirmed.
The 7th Circuit U.S. Court of Appeals affirmed the trial court’s grant of summary judgment in favor of our law firm client on claims brought by one of its former partners for Title VII retaliation and age discrimination. The appellate court held that the plaintiff was a partner/employer, not an employee entitled to the protection of the federal anti-discrimination laws. The 7th Circuit based its determination on several factors, including the plaintiff’s actual control over the affairs of the firm by virtue of his administrative activities as managing partner, and the plaintiff’s right to control through his equal voting power and other prerogatives conferred upon him by the partnership agreement. This was the first case to apply the Supreme Court’s "control test" announced in the Clackamas decision to a Title VII claim, or to a claim brought by a law firm partner.
The quality manager of our client RAMiX, Inc. developed an irrational paranoia that she was going to lose her job to an outside quality auditor. In a misguided effort to protect her job, she began a campaign of undermining both the company and the auditor. She also complained that she had been sexually harassed. After her campaign against the company and the outside auditor intensified she was demoted. She sued in California state court, alleging that all of RAMiX's employment actions taken with respect to her were retaliatory. Following trial the jury found that while the plaintiff had made a good faith complaint of sexual harassment, that complaint was not a motivating factor in any adverse employment action. In addition, the jury found that the plaintiff had a duty of loyalty to RAMiX and was guilty of a culpable degree of negligence in breaching that duty because of her insubordinate and subversive conduct.
A salesperson at an automobile dealership client alleged he was subjected to daily anti-Semitic and ethnic slurs by the top salesperson. He claimed that he complained repeatedly to management but that his employer did nothing because it valued its top producer over the plaintiff. The plaintiff alleged that the constant harassment forced him to quit. Coincidentally, the plaintiff had a history of poor sales performance throughout his career, and his pay rate was dropping under a new pay plan the day he decided to quit. The plaintiff, of course, claimed his poor sales and resulting pay reduction were due to the alleged ongoing harassment and that he could not successfully function in that environment.
A former employee of our client King Motor Company signed an arbitration agreement during his employment. He later sued for religious discrimination and we moved to compel arbitration. The plaintiff opposed arbitration, arguing that the "loser pays" fee-shifting provision in the arbitration agreement denied him a remedy under Title VII, because a prevailing defendant in a Title VII case generally cannot recover its attorneys’ fees from the plaintiff. A Florida federal court agreed and denied the motion to compel arbitration. We appealed and the 11th Circuit reversed, holding that the possibility that the plaintiff might have to pay the defendant’s attorneys’ fees was too speculative to invalidate the agreement.
Former University of Miami campus police officers sued the University and the City of Coral Gables in Florida federal court claiming they were entitled to receive the same pay and benefits provided to Coral Gables police officers. The city authorized the campus police to exercise police powers and classified the officers as part-time city officers even though they were full-time employees of the University. The plaintiffs filed five amendments to their complaint, alleging negligent misrepresentation, conspiracy, Florida RICO, whistleblower claims, retaliation, due process and section 1983 claims. We moved for summary judgment on behalf of our client the University of Miami, and the court granted the University’s motion as well as the city’s motion as to all of the plaintiffs’ claims.