Hawaii Employment Law Cases December 10, 2017 to December 16, 2017 – Jeffrey S. Harris

U.S. Ninth Circuit Court of Appeals

Details on jury instructions.  Any error by the District Court giving the jury a "Limitation on Remedies - Same Decision" instruction was more probable than not harmless, because the jury decided the former employee’s disability or medical leave was not a substantial motivating reason for his discharge. The District Court did not err by refusing to give the jury the former employee’s proposed instruction, because after his leave there were no existing vacant positions he qualified for.  The District Court did not err in giving the jury a "Reliance on Medical Opinions", because the instruction did not say the employer could rely only on medical opinions and not also engage in the interactive process. The District Court did not abuse its discretion by denying a new trial, because although the jury erroneously answered "no" to the question of whether the employer subjected the former employee to an adverse employment action, the jury answered "no" on the question whether discrimination or retaliation was “substantial motivating reason" of the action.  Gardner v. Fed. Express Corp., 2017 U.S. App. LEXIS 25199 (9th Cir. Dec. 13, 2017).

Co-employer not entitled to enforce arbitration agreement against different claims.  By entering into an employment contract with one employer with an arbitration provision encompassing "any dispute arising out of" the contract, a former employee knowingly bargained away his right to litigate his ADEA and ADA claims against that employer.  Since former employee’s claims against the co-employer did not rely on the terms of his written agreement with the employer and he did not allege substantially interdependent and concerned misconduct by the employer and co-employer and founded on or intimately connected with the obligations of the underlying agreement, former employee was not required to arbitrate his ADEA and ADA claims against the co-employer, under Nevada law. Dylag v. W. Las Vegas Surgery Ctr., LLC, 2017 U.S. App. LEXIS 25197 (9th Cir. Dec. 13, 2017).

No basis for pay increase claim.  The District Court properly granted summary judgment against former employee’s claim employer unfairly denied her a compensation increase and title when she was promoted, and retaliated against her by terminating her after she lodged an internal complaint.  The former employee did not establish she was entitled to receive a pay increase, because she retained her higher salary from a higher paying department, was earning a higher salary than her peers and offered no evidence her compensation was lower than any similarly situated employees. She did not show she was qualified for the title she sought.  The District Court did not abuse its discretion finding a reduction in force was the reason the former employee’s position was eliminated, rather than discrimination or retaliation.  She did not offer evidence of similarly situated highest paid employees who were not terminated.  Watkins v. Infosys, 2017 U.S. App. LEXIS 25193 (9th Cir. Dec. 13, 2017).

Objectively reasonable belief submitted false claim supported for retaliation verdict.  District Court properly denied former employer’s motion for judgment as a matter of law against former employee’s False Claims Act retaliation claim.  In retaliation case, former employee only needed to show she suspected defendant submitted a false claim.  Former employee pointed to evidence jury could have relied on to find her suspicion was objectively reasonable.  Her testimony was sufficient to sustain the jury’s conclusion she has a good faith belief the employer was possibly committing fraud. Cook v. Harrison Med. Ctr., 2017 U.S. App. LEXIS 25189 (9th Cir. Dec. 13, 2017).

Improper per diem practices and unauthorized travel expenses involve no safety or security issues.  Administrative Review Board properly affirmed dismissal of claim under the Energy Reorganization Act.  Former employee’s participation in reports of improper per diem practices and unauthorized travel expenses involved no safety or security issue needed to be protected activity under the Act.  Nelson v. U.S. Dept. of Labor, 2017 U.S. App. LEXIS 25079 (9th Cir. Dec. 12, 2017).

U.S. District Court for the District of Hawaii

Successor entitled to enforce arbitration agreement, when assumes sellers rights and obligation and agreement provides.  District Court compelled employee to arbitrate claim based on termination of employment.  Arbitration agreement was in writing.  The parties mutually assented.  Both parties agreed to forego their rights to a judicial forum.  A successor to the employer could invoke the arbitration, because the agreement expressly provided and it assumed the seller’s rights and obligations.  The employee provided no estimate of estimated arbitration costs or financial circumstances and the agreement required the employee to pay no more than $100 towards arbitration expenses.  Southern Glazer’s Wine & Spirits, LLC v. Denyer, 2017 U.S. Dist. LEXIS 206604 (D. Haw. Dec. 15, 2017).

Note: We analyze cases to learn rules courts will follow or disappoint us if they do not. Rules courts follow allow us to behave and provide explanations they accept. Competent advocates may limit the rules to the facts of the case that discuss them, or expand the rules by showing differences in other cases are irrelevant.