Hawaii Employment Law Decisions June 12, 2016 to June 18, 2016 – Jeffrey S. Harris

U.S. Ninth Circuit Court of Appeals

Failure to pay share of arbitrator's fees because of financial incapacity entitled legal malpractice plaintiff to continue litigation in court, at least where she gave notice of her inability to pay, and genuinely tried to secure alternative payment arrangements.  Tillman v. Tillman, 2016 U.S. App. LEXIS 10818 (9th Cir. June 15, 2016).

District court did not err by dismissing employer's claim union impliedly agreed to mandatory binding arbitration by persuading the National Labor Relations Board employer refused to bargain in good faith. Fallbrook Hosp. Corp. v. California Nurses Ass'n., 2016 U.S. App. LEXIS 10836 (9th Cir. June 15, 2016).

District court did not err by granting summary judgment against ADA failure to accommodate claim, because expressed dissatisfaction rate derived from customer surveys disqualified former employee from the customer service position.  She created no material dispute issue whether she could deliver adequate customer service with or without reasonable accommodation.  There was no position she qualified for either when she was fired or within a reasonable period thereafter.  She presented no medical evidence her conditions preventing her from performing adequate customer service were treatable or that she was receiving treatment for the impairments preventing her from performing adequate customer service.  Extensive and freely granted use of intermittent FMLA leave during years before her termination belied any reasonable inference the intermittent leave during the month before her termination affected the decision to fire her.   Kelly v. Amazon.com, Inc., 2016 U.S. App. LEXIS 10687 (9th Cir. June 13, 2016).

Hawaii Supreme Court

A party to litigation cannot use, or be compelled to produce, confidential patient medical records, even if sufficiently de-identified, in litigation where the patient is not a party.  Pac. Radiation Oncology, LLC v. The Queens Med. Ctr., 2016 Haw. LEXIS 139 (June 13, 2016). (Note: HIPAA may preempt state restriction on use of de-identified medical records.)

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.