Hawaii Employment Law Decisions October 15, 2017 to October 21, 2017 – Jeffrey S. Harris

U.S. Ninth Circuit Court of Appeals

District Court properly granted summary judgment against age discrimination claim.  When substitute teacher applies for permanent teaching position, ‘failure to hire’ standard applies.  Substitute failed to make out her prima facie case by showing a younger person with similar qualifications received the position.  The employer hired teachers with advanced degrees, which substitute lacked.  Bellinger v. Coos Bay Sch. Dist., 2017 U.S. App. LEXIS 20560 (9th Cir. Oct. 19, 2017).

Non-self-executing treaty did not preempt application of Title VII to discrimination, retaliation and hostile work environment claims by former Tripler Medical Center employees.  District Court properly granted summary judgment against former employees because they failed to establish prima facie cases.  Banks v. McCarthy, 2017 U.S. App. LEXIS 20417 (9th Cir. Oct. 18, 2017).

District Court properly granted summary judgment against Title VII retaliation claim.  Former employee did not show he reasonably believed the employer engaged in subjectively offensive conduct by there being several sexually explicit drawings in the workplace, or that his reporting the drawings caused his reassignment four months later along with fifteen other employees.  Cheatham v. City of Phoenix, 2017 U.S. App. LEXIS 20425 (9th Cir. Oct. 18, 2017).

NLRB properly applied new standard for deferring to arbitral decisions only prospectively, affirmed arbitral decision and denied employee's unfair labor practice complaint under previous more deferential standard, because arbitrator’s decision was susceptible to an interpretation consistent with the Act.  Beneli v. NLRB, 2017 U.S. App. LEXIS 20350 (9th Cir. Oct. 17, 2017).

District Court properly granted summary judgment against discrimination and retaliation claims.  Employer offered legitimate reason for employee's termination – his physical altercation with a would-be shoplifter – and employee presented no evidence of pretext.  Employee’s attack on adequacy of employer's investigation and challenge of its conclusion he was not acting in self-defense when he grabbed the shoplifter were inadequate.  Keshe v. CVS Pharm., 2017 U.S. App. LEXIS 20311 (9th Cir. Oct. 17, 2017).

Former employee failed to offer specific substantial evidence of pretext in response to employer’s assertion it fired her for being dishonest or reassigned her to a position requiring a variety of skills.  Johnson v. SEIU Local 1107, 2017 U.S. App. LEXIS 20309 (9th Cir. Oct. 17, 2017).

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