Hawaii Employment Law Decisions October 29, 2017 to November 4, 2017 – Jeffrey S. Harris

U.S. Court of Appeals for Ninth Circuit

District Court properly concluded company must pay returning service member higher collective bargaining signing bonus based on larger plane he would have been flying if he had not departed for military service.  Huhmann v. Fed. Express Corp., 2017 U.S. App. LEXIS 21955 (9th Cir. Nov. 2, 2017).

NLRB properly ordered employer to recognize and bargain with union.  Union would have prevailed regardless of inclusion of employees in unit.  Union’s home visits, telephone calls and electioneering outside the election location within twenty-four hours of the election were not sufficiently objectionable to invalidate the election.  Vague allegations that union representative said employer could check employees’ immigration status were also insufficient.  Capay, Inc. v. NLRB, 2017 U.S. App. LEXIS 21968 (9th Cir. Nov. 2, 2017).

District Court improperly dismissed denial of reasonable accommodation claim.  Employee’s allegations that she asked the employer if there was anything she could do other than get under her desk and the employer refused to consider alternatives are sufficient to show employee requested a reasonable accommodation for her disability and the employer refused to participate in the interactive process.  Gladle v. Shulkin, 2017 U.S. App. LEXIS 21966 (9th Cir. Nov. 2, 2017).

District Court properly granted summary judgment against discrimination claims.  Supervisor and former employee not liking one another did not show discrimination.  Employer did not treat similarly situated minorities or females more favorably than white male former employee.  Employee did not perform according to employer’s legitimate expectations.  District Court properly granted summary judgment against retaliation claim.  No evidence employee engaged in protected activity before employer demoted him.  He offered no basis for concluding employer more likely motivated by retaliatory intent rather than the employer’s legitimate reasons or the employer’s explanation was unworthy of credence.  Although employee engaged in protected activity after demotion, employer would have taken the same action.  Employee failed to fulfil his duties in the new post.  Bullen v. Sessions, 2017 U.S. App. 21826 (9th Cir. Oct. 31, 2017).

District Court properly granted summary judgment on disparate treatment claim.  Former employee failed to raise a genuine dispute of material fact whether employer's legitimate, nondiscriminatory reason for terminating him was pretextual.  District Court properly granted summary judgment against Washington state hostile work environment claim.  Former employee failed to raise a triable dispute whether employer authorized, knew of, or should have known of any harassment.  Habib v. Tote Services, Inc., 2017 U.S. App. LEXIS 21592 (9th Cir. Oct 30, 2017).

District Court properly decided question of arbitrability.  When union representative executed a memorandum of agreement (“MOA”) with employer, he could properly settle and release "any and all claims" by its members that had occurred prior to the MOA, including local union’s lost-work grievances.  The MOA encompassed the local union, despite the fact that it was not a named signatory, and as a contingency agreement, a side letter did not exclude the local union from the terms of the MOA.  Int’l Longshore & Warehouse Union, Local 40 v. Columbia Grain, Inc., 2017 U.S. App. LEXIS 21182 (9th Cir. Oct. 25, 2017).

Note: We analyze cases to learn rules courts will follow or disappoint us if they do not. Rules courts follow allow us to behave and provide explanations they accept. Competent advocates may limit the rules to the facts of the case that discuss them, or expand the rules by showing differences in other cases are irrelevant.