Hawaii Employment Law Decisions August 21, 2016 to August 27, 2016 – Jeffrey S. Harris

Court of Appeals was skeptical of disability insurer's denial of benefits, because independent physician consultants on which insurer relied performed substantial numbers of reviews for and received significant compensation from the insurer.  Insurer therefore had burden of maintaining records on the reviewer's findings on claims to show their neutrality in practice.  Insurer abused its discretion by not finding claimant's mental functional capacity was affected by powerful medications he was taking to treat physical pain, despite evidence claimant submitted his capacity was affected, based on the opinion of consultants who did not examine claimant or explain why they rejected his claim and records conflicting with their opinions.  Demer v. IBM Corp Ltd. Plan, 2016 U.S. App. LEXIS 15788 (9th Cir. August 26, 2016).

District court erred by awarding front pay and reinstatement for retaliatory discharge under ERISA, because employee had already sought and been awarded front pay for state claims by jury to compensate for the same harm.  Plaintiff waived reinstatement remedy by seeking duplicative front pay remedy from jury.  Teutshcer v. Woodson, 2016 U.S. App. LEXIS 15790 (9th Cir. August 26, 2016).

District court properly granted summary judgment against hostile work environment claim, because former employee failed to raise genuine issue of material fact whether complained of conduct was sufficiently severe or pervasive to alter his conditions of employment and create an abusive work environment.  District court properly granted summary judgment against discrimination claims, because employee failed to raise genuine issue of material fact whether employer's legitimate nondiscriminatory reason for termination was pretextual.  District court properly granted summary judgment against retaliation claim, because employee failed to raise genuine issue of material fact whether he engaged in protected activity before being terminated. Rahman v. American Tire Distrib., Inc., 2016 U.S. App. LEXIS 15843 (9th Cir. August 26, 2016).

District court properly granted summary judgment against hostile work environment claim, because former employee failed to raise genuine issue of material fact whether he was subject to harassment on the basis of national origin or religion.  District court properly granted summary judgment against discrimination claims, because employee failed to raise genuine issue of material fact whether employee was subject to an adverse employment action based on his religion or national origin.  District court properly granted summary judgment against retaliation claim, because employee failed to raise genuine issue of material fact whether he engaged in protected activity before being terminated. Rahman v. Crystal Equation, 2016 U.S. App. LEXIS 15837 (9th Cir. August 26, 2016).

District court properly granted summary judgment against discrimination claim, because employee failed to raise a genuine dispute of material fact whether employer's legitimate, nondiscriminatory reasons for reassignment of some of her job duties and her classification as exempt temporary employee were pretextual.  District court properly granted summary judgment against retaliation claim because employee failed to raise genuine dispute of material fact whether employee's EEOC complaints caused employer's reassignment of some of her job duties and change in its appointment notification, and because employee failed to raise a genuine dispute of material fact whether employer's legitimate, non-discriminatory reasons for the reassignment of her job duties and appointment notification were pretextual.  Robertson v. Tacoma Cmty. Coll., 2016 U.S. App. LEXIS 15738 (9th Cir. August 25, 2016).

Parties' dispute was "minor" and subject to mandatory arbitration under RLA.  Employer asserted contractual right to take contested action of disciplining employee for continuing to badger coworkers about overtime who complained and asked him to stop, and the action was arguably justified by house rules incorporated by parties' collective bargaining agreement.  Union's argument the dispute instead was about retaliation against protected conduct, "major" and justified a strike was without merit, because employer's interpretation of the agreement was not frivolous.  Bhd. of Maint. of Way Employees Div./IBT v. BNSF R.R., Inc., 2016 U.S. App. LEXIS 15571 (9th Cir. August 24, 2016).

District court properly denied preliminary injunction against City of Los Angeles enforcing Citywide Hotel Worker Minimum Wage Ordinance.  The Ordinance provided increased minimum wage for workers at hotels with over 150 rooms or near the airport, permitted hotels covered by collective agreement to waive the requirement and allowed hotels whose viability might be threatened to postpone implementation for a year. The National Labor Relations Act did not preempt enforcement of the Ordinance because it prescribed minimum labor standards, regardless of the opt out provision for collective bargaining.  American Hotel and Lodging Ass'n v. City of Los Angeles, 2016 U.S. App. LEXIS 15447 (9th Cir. August 23, 2016).

An employer violated National Labor Relations Act by requiring employees to sign an agreement precluding them from bringing, in any forum, a concerted legal claim regarding wages, hours and terms of conditions of employment. The employer interfered with the employees' right to engage in concerted activity under the NLRA by requiring the employees to resolve all of their legal claims in "separate proceedings." Although the "separate proceedings" requirement in the agreement could not be enforced, district court could determine whether the requirement was severable so employees would be required to arbitrate class claims.  Morris v. Ernst & Young, LLP, 2016 U.S. App. LEXIS 15638 (9th Cir. August 22, 2016).

Recent Supreme Court precedent did not entitle union's peaceful secondary picketing to First Amendment protection.  National Labor Relations Board v. Teamster Union Local No. 70, 2016 U.S. App. LEXIS 15386 (9th Cir. August 22, 2016).

Former employee could not base ADA discrimination and retaliation claims on discrete events occurring over 180 and 300 days before she filed her state and federal administrative charges.  Events before those deadlines did not give rise to pattern of discrimination sufficiently severe or pervasive or at the level of frequency to constitute a hostile work environment.  Two year statute of limitations barred emotional distress claims.  Workers compensation exclusivity also barred emotional distress claim, because there was no sexual harassment or sexual assault. Compensatory and punitive damages were not available for ADA retaliation claim but punitive damages were available for ADA discrimination claim.  Kuehu v. United Airlines, Inc., 2016 U.S. Dist. LEXIS 112479 (D. Haw. August 23, 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.