Hawaii Employment Law Decisions March 19 to March 25, 2017 – Jeffrey S. Harris

U.S. Supreme Court

Acting general counsel of NLRB became ineligible to perform functions of office requiring Presidential appointment and Senate confirmation upon being nominated by the President to fill the vacant position, since the prohibition against a nominee serving in an acting capacity extended to any person serving as an acting official and was not limited to first assistants who became acting officials by law.  NLRB v. SW Gen., Inc., 197 L.Ed. 2d 263, 2017 U.S. LEXIS 2022 (March 21, 2017).

U.S. Ninth Circuit Court of Appeals

District Court improperly granted summary judgment against hostile work environment claim.  A reasonable jury could find driver subjectively perceived her work environment to be hostile and it reasonably could have been perceived as hostile, especially because truck co-drivers spent significant time in close proximity and conduct occurred over three weeks.  A jury could have concluded that employer’s remedy of separating driver from a co-worker was ineffective, especially because driver offered evidence the company never investigated her complaint, never informed her that co-driver was prevented from driving with other females, did not reassign her to a new truck or routes after she and the former co-driver were separated and did not explain how to use the list for female drivers it sent.  District Court improperly granted summary judgment against retaliation claim because a reasonable jury could find employer fired driver for submitting a complaint against the co-driver, because although the employer stated it fired her because she did not report, she explained she received no assignments.  Anderson v. CRST, Int’l, Inc., 2017 U.S. App. LEXIS 5224 (9th Cir. March 24, 2017).

District Court properly granted summary judgment against claim employer discriminated by terminating district manager as part of a reduction in force.  Employer explained notation on list of district managers recommended for termination indicating district manager was on maternity leave was to ensure reduction had no adverse impact based on protected classification and related to details of a severance agreement, and some managers with same maternity leave notation next to their name were not terminated.  Employer provided legitimate reason for selecting terminated district manager; her relative poor performance and potential for growth among district managers and the density of district managers required a reduction in their number.  Terminated district manager failed to show the reason was pretextual.  Statements by regional manager and human resources representative district manager was not terminated for poor performance were consistent with fact she was not terminated strictly for cause and were not made by individuals involved in the reduction of force decision.  Charles v. Abercrombie & Fitch Stores, Inc., 2017 U.S. App. LEXIS 5167 (9th Cir. March 23, 2017).

District Court properly dismissed ERISA actions by health care providers for direct payments for medical services to patients from employee health plan administrators.  The providers could not sue in federal court under ERISA’s enforcement provisions, because they had neither direct statutory authorization nor derivative authority through assignment from patients to sue as beneficiaries.  DB Healthcare, LLC dba Metro Center Health Care v. Blue Cross Blue Shield of Arizona, 852 F.3d 868 (9th Cir. March 22, 2017).

District Court properly entered judgment against FMLA claim, because jury instructions adequately covered former employee’s theory and did not prevent her from arguing employer terminated her for failure to meet performance standards of employee who did not take FMLA leave.  District Court properly granted summary judgment against employee for breach of confidentiality provision in employment agreement, because the agreement required her to reimburse costs including attorneys’ fees incurred to enforce the agreement, and there was no dispute as to amount of fees.  Cheeks v. General Dynamics C4 Sys., 2017 U.S. App. LEXIS 5101 (9th Cir. March 22, 2017).

District Court improperly granted summary judgment against FLSA claim.  Production bonus was part of cable television installers’ regular rate of pay, to compute overtime.  Brunozzi v. Cable Commc’ns., Inc., 851 F.3d 990 (9th Cir. March 21, 2017).

District Court properly dismissed FLSA overtime claim based exclusion of meal payments required by California law from regular rate of pay.  Premium rates paid according to the requirements of another statute are not part of regular rate of pay, to compute overtime.  Mitchell v. Medtronic, Inc., 2017 U.S. App. LEXIS 5018 (9th Cir. March 21, 2017).

District Court properly granted summary judgment against ADEA claim, because applicant failed to raise genuine issue of material fact as to whether university’s legitimate, non-discriminatory reasons for declining to hire him as a professor were pretextual.  Committe v. Or. State Univ., 2017 U.S. App. LEXIS 4903 (9th Cir. March 20, 2017).

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.