Hawaii Employment Law Decisions from June 14 to June 20 - Jeffrey S. Harris

A district court erroneously granted summary judgment against an employee's federal claim that a supervisor sexually harassed her under the Faragher/Ellerth affirmative defense, because a reasonable jury could find that the employer did not exercise reasonable care to prevent and correct any sexually harassing behavior (including questions whether the employer properly addressed the supervisor's harassment of other employees) and that the employee did not unreasonably fail to take advantage of the employer's offers to correct the situation. The employer was not precluded from raising the affirmative defense because the supervisor was not responsible for the official acts that allegedly resulted in the employee's constructive discharge. Maggi v. Creative Health Care Servs., 2015 U.S. App. LEXIS 10365 (9th Cir. June 19, 2015).

An employee plausibly stated a claim for gender discrimination by alleging that a successor employer hired none of the women who worked for the predecessor in her part of the plant, hired many men who worked in that part of the plant and gave a variety of changing explanations for deciding not to hire her, at least one of which was untrue. The employee plausibly stated a retaliation claim by alleging that she and other employees engaged in protected activity against the predecessor, that the successor did not hire them but hired many other employees who did not engage in that activity and that there was communication between the predecessor and successor. Heneage v. DTE Energy, 2015 U.S. App. LEXIS 10277 (9th Cir. June 18, 2015).

A district court erroneously granted summary judgment against an employee's FMLA interference claim, because there were issues of material fact whether the employee's father had a serious health condition. Being present with father, to make sure he took medication, ate and exercised, and being the sole care provider were protected care. There were issues of fact whether the employer terminated the employer for providing that care. Aboulhosn v. Merrill, Lynch, Pierce, Fenner & Smith, Inc., 2015 U.S. App. LEXIS 10121 (9th Cir. June 16, 2015).

A claim for a plan administrator's failure to comply with 29 U.S.C. 1132(c) by not providing a participant or beneficiary required information within 30 days accrues after the 30 days expires and they do not receive it. The six year statute of limitations under HRS 657-1 therefore bars an action filed in 2015 to recover penalties based on a 2004 request. Reynolds v. Merrill Lynch Basic Long Term Disability Plan, 2015 U.S. Dist. LEXIS 79730 (D. Haw. June 19, 2015).

Workers compensation law bars a negligent infliction of emotional distress claim based on alleged discrimination (except for sexual harassment and abuse). A retired officer walking behind an employees desk was not sufficiently outrageous to support an intentional infliction of emotional distress claim. Dowkin v. City and County of Honolulu, 2015 U.S. LEXIS 79362 (D. Haw. June 18, 2015).

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 that 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.