Hawaii Employment Law Decisions May 14, 2017 to May 20, 2017 – Jeffrey S. Harris

U.S. Supreme Court

Federal Arbitration Act preempted Kentucky Supreme Court’s ruling person holding a general power of attorney could not agree to arbitration for person granting the power, unless the power granted the representative specific authority to waive principal’s rights under the Kentucky Constitution to access courts and trial by jury.  Ruling violated FAA’s command to place arbitration agreements on equal footing with all other contracts.  Kindred Nursing Ctrs. P’Ship v. Clark, 2017 U.S. LEXIS 2948 (May 15, 2017).

U.S. Ninth Circuit Court of Appeals

District Court erroneously granted summary judgment against FLSA retaliation claim.  Justification employer gave for denying promotion – employees were not “loyal” and “team players” - was consistent with retaliatory motive.  Non-promotion was temporally proximate to employees’ FLSA lawsuit.  Employer deviated from longstanding practice by opening promotion to external candidates.  There was evidence employer often used promotion process to punish or reward based on loyalty.  Alternatively, pre-lawsuit performance evaluations contradicted or were silent as to employer’s justification for not promoting employees.  Forsyth v. City of Buena Park, 2017 U.S. App. LEXIS 8756 (9th Cir. May 18, 2017).

District Court erred by denying attorney fee award, because employees who accepted offer of judgment for 70% of initial judgment in their favor and 30% of their remanded claim were prevailing parties and did not receive merely technical or de minimis success.  Rother v. Lupenko, 2017 U.S. App. LEXIS 8735 (9th Cir. May 18, 2017).

District Court did not abuse discretion denying attorney fee award, because partially prevailing employees did not properly segregate the time spent on successful claims from the time spent on unsuccessful claims.  Melland v. Cornerstone Dental, PC, 2017 U.S. App. LEXIS 8743 (9th Cir. May 18, 2017).

District Court properly granted summary judgment against age discrimination claim, because employee failed to raise genuine dispute of material fact as to whether she was discriminated against on basis of age.  District Court properly granted summary judgment against sex discrimination claim, because employee failed to raise genuine dispute of material fact as to whether employer’s legitimate nondiscriminatory reasons for not allowing her to perform certain tasks were pretextual.  District Court properly granted summary judgment against retaliation claim, because employee failed to raise genuine dispute of material fact as to whether employer’s stated reasons for adverse actions were pretextual.  Lavery-Petrash v. Catholic Healthcare West, 2017 U.S. App. LEXIS 8603 (9TH Cir. May 16, 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.