Hawaii Employment Law Decisions July 17, 2016 to July 23, 2016 – Jeffrey S. Harris

The district court properly granted summary judgment against disparate treatment based on disability claim, because employee failed to show her compensation level was connected to her disability or other employees were paid more but less qualified and experienced, and she failed to show the employer's reason for the pay disparity was pretextual.  The district court properly granted summary judgment against retaliation claim, because employer denied accommodation and higher compensation before employee's hotline call.  Wood v. University Physicians Healthcare, 2016 U.S. App. LEXIS 13432 (9th Cir. July 22, 2016).

The district court properly denied motion to compel arbitration.  Whether defendants waived their right to arbitrate by litigation conduct was question for the court because the parties did not clearly and unmistakably provide otherwise.  Defendants waived their right to arbitrate.  They engaged in acts inconsistent with their right to arbitration by spending seventeen months litigating the case, devoting considerable time and effort to a joint stipulation structuring the litigation, moving to dismiss on a key merits issue, entering a protective order, answering discovery, preparing for and conducting a deposition, not noting their right to arbitrate until almost a year into the litigation or moving to compel until well after and telling the judge they would be better off in court.  Plaintiffs were prejudiced by spending a lengthy amount of time litigating in court and would have to relitigate a key legal issue on which the court ruled in their favor.  Martin v. Yasuda, 2016 U.S. App. LEXIS 13323 (9th Cir. July 21, 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.