Hawaii Employment Decisions November 13, 2016 to November 19, 2016 – Jeffrey S. Harris

District court properly granted summary judgment against age discrimination claim based on agency advertising position.  Decision to advertise was not a separately actionable adverse employment decision. District court properly granted summary judgment against age discrimination claim based on hiring decision.  Plaintiff neither applied for position nor presented evidence showing he reasonably believed applying would have been futile.  Agency's rejection of application in closed process did not show plaintiff reasonably believed applying for position on competitive basis would be futile.  Since employee was not aware of additional discriminatory behavior, it could not have caused him not to apply.  Hill v. Rand Beers, 2016 U.S. App. LEXIS 20696 (9th Cir. Nov. 18, 2016).

Circuit court properly granted summary judgment against employee's Hawaii Whistleblower Protection Act claim.  Employer offered evidence it would have terminated employee regardless of her alleged protected activity.   Evidence showed employee had verbal altercation at work with shift leader, after having previous verbal altercation with another employee and being warned next incident would result in suspension up to termination.  Employee failed to oppose summary judgment by objecting evidence employer offered was inadmissible hearsay, because employee relations manager was not present during altercation.  Medina v. FCH Enterprises, Inc., 2016 Haw. App. LEXIS 480 (Nov. 15, 2016).

District court properly granted summary judgment against claim employer retaliated against filing lawsuit under Fair Labor Standards Act.  Former employee failed to raise issue of fact whether reasons for firing him were pretextual.  Stray remark by decision maker did not link firing to FLSA lawsuit.  Temporal proximity between lawsuit and firing did not preclude summary judgment.  Schemkes v. Jacob Trans. Servs., LLC, 2016 U.S. App. LEXIS 20426 (9th Cir. Nov. 14, 2016).

Note: We analyze cases to learn rules the courts will follow or disappoint us if they don't. Rules that the courts follow allow us to behave and provide explanations they accept. But competent advocates may limit the rules to the facts of the case where they are discussed, or expand rules by showing that differences in other cases are irrelevant.