Hawaii Employment Law Cases Jan. 21, 2018 to April 21, 2018 – Jeffrey S. Harris

U.S. Supreme Court

Automobile service advisors exempt from FLSA overtime.  Automobile service advisors were exempt from FLSA overtime requirement because they were salesmen primarily engaged in servicing cars since they sold customers services for their vehicles and they were also primarily engaged in servicing cars since they were integral to the servicing process as they met customers.  There was no reason to construe FLSA exemptions narrowly.  Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134 (April 2, 2018). (Note: narrower Hawaii exemption may be limited to auto salesmen selling autos.)

When state statute of limitations stops running in federal court.  Statute of limitations on state claim stops running while claim is in federal court and for 30 days after federal case dismissed.  Artis v. District of Columbia, 2018 U.S. LEXIS 762 (Jan. 22, 2018).

Dodd-Frank Act only protects whistleblowing to SEC.  Anti-retaliation provision of Dodd-Frank Act only prohibits retaliation against employees who report suspected securities law violations to SEC, not employees who report suspected securities law violations to senior company management.  Dig. Realty Trust, Inc. v. Somers, 200 L. Ed. 2d 15, 2018 U.S. LEXIS 1377 (Feb. 21, 2018).

Retiree health benefits ran with agreement.  Retiree health care benefits did not vest for life, based on collective bargaining agreement containing general durational clause applicable to all benefits, unless the agreement specified otherwise.  No provision specified retiree health care benefits were subject to a different durational clause and statement the health benefits plan “r[an] concurrently” with the collective-bargaining agreement tied the retiree health care benefits to the duration of the agreement.  CNH Indus. N.V. v. Reese, 200 L. Ed 2d 1, 2018 U.S. LEXIS 896 (Feb. 20, 2018).

U.S. Ninth Circuit Court of Appeals

Diversity amount in controversy encompasses all potential relief.  Amount in controversy requirement for diversity jurisdiction is not limited to damages incurred prior to removal.  For example, it is not limited to wages a plaintiff employee would have earned before removal (as opposed to after removal).  The amount in controversy is determined by the complaint operative at the time of removal and encompasses all relief a court may grant on that complaint if the plaintiff is victorious.  Chavez v. JP Morgan Chase & Co., 2018 U.S. App. LEXIS 9997 (9th Cir. April 20, 2018).

Similarly situated employees not treated more favorably.  District Court properly granted summary judgment against Title VII claims because former employee failed to raise genuine dispute of material fact whether employer treated similarly situated employees more favorably. District Court properly granted summary judgment against disability discrimination claim under the Rehabilitation Act because former employee failed to raise genuine dispute of material fact whether defendant discriminated against him because of his alleged disability.  Laparra v. Duke, 2018 U.S. App. LEXIS 9665 (9th Cir. April 17, 2018).

Don’t ask for or consider prior salary.  Prior salary, alone or in combination with other factors, cannot justify wage differential under the Equal Pay Act.  Rizo v. Yovino, 2018 U.S. App. LEXIS 8882 (9th Cir. En Banc April 9, 2018).

No knowledge of disability.  District Court properly entered summary judgment against disability discrimination claim.  Since there were no facts supporting reasonable inference the decision makers behind the former employee’s firing were aware he was disabled, former employee could not show adverse action was because of his disability.  ERISA preempted claim employer fired employee because it did not want to bear the expense of his health care.  Davis v. Con-Way Freight, Inc., 2018 U.S. App. LEXIS 7400 (9th Cir. March 23, 2018).

Not sufficiently severe or pervasive.  District Court properly granted summary judgment on Title VII discrimination and retaliation claims because former employee failed to establish a prima facie case.  District Court properly granted summary judgment against Title VII hostile work environment claim because former employee failed to raise a triable dispute whether the conduct complained of was sufficiently severe or pervasive.  McKenzie v. San Joaquin Valley Coll., Inc., (9th Cir. March 23, 2018).

No adverse employment action.  District Court properly granted summary judgment against age discrimination claim because former employee failed to raise a genuine dispute of material fact whether she was discriminated against on the basis of her age.  District Court properly granted summary judgment against retaliation claim because former employee failed to raise a genuine dispute of material fact whether employer took an adverse employment action against her.  Smets v. Wilson, 2018 U.S. App. LEXIS 7377 (9th Cir. March 23, 2018).

No verbal or physical conduct because of national origin.  District Court properly granted summary judgment on national origin discrimination and retaliation claims because former employee failed to establish a prima facie case.  District Court properly granted summary judgment on hostile work environment claim because former employee failed to raise a genuine dispute of material fact whether he was subjected to verbal or physical conduct because of his national origin.  District Court properly granted summary judgment on ADA claims because the claims were time barred.  Ruiz v. Albertson’s Warehouse, 2018 U.S. App. LEXIS 7379 (9th Cir. March 23, 2018).

No adverse employment action or sufficiently severe or pervasive conduct.  District Court properly granted summary judgment against discrimination and retaliation claims because former employee failed to raise a genuine dispute of material fact whether he was subjected to any adverse employment action.  District Court properly granted summary judgment against harassment claims because former employee failed to raise a genuine dispute of material fact whether the conduct alleged "was sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment.  Dupree v. Apple, Inc., 2018 U.S. App. LEXIS 7431 (9th Cir. March 23, 2018).

Consider reasonable explanations and provide opportunity to respond.  District Court improperly granted summary judgment to employer because employee made a prima facie showing of discrimination and raised substantial questions whether investigation conducted by her supervisor was pretextual.  Former employee offered evidence supervisor called her a bitch and used other derogatory sexist claims against her.  Former employee offered reasonable explanations for her alleged mileage overages her supervisor did not address.  She offered reasonable explanations for allegations she was on the internet system at the same time she was allegedly making sales calls, which her supervisor did not address.  She also offered evidence the declarations her supervisor secured from clients - to the effect she did not meet with them when she said she did - were incomplete, and subsequent declarations from these clients stated they did not know whether she had visited the locations on certain days.  In addition, the investigation was conducted entirely by the supervisor and the former employee was never given the opportunity to respond to her supervisor's allegations against her until after her employment was terminated.  Viana v. FedEx Corp., Servs. 2018 U.S. App. LEXIS 7243 (9th Cir. March 22, 2018).

No race discrimination if don’t know race.  District Court properly granted summary judgment against three police officers.  City offered legitimate non-discriminatory reasons for demoting first officer; issues reflected in his performance reviews.  Officer produced no evidence of discriminatory motive.  The record did not support the argument his supervisor falsified the reviews.  The officer did not offer enough details to show officer who received independent evaluation and extension of probationary period was similarly situated.  He cited no record of his supervisor’s racist attitude and behavior.  City offered legitimate non-discriminatory reasons for not promoting second officer; poor interviews and lack of leadership skills.  Officer produced no evidence of discriminatory motive.  He produced no evidence assessment of his performance during interviews was pretext.  Since the third officer did not show the decision maker knew his race, City could not have discriminated against him based on his race.  Because first officer did not show the elapsed time between his protected activity and adverse action was short, his retaliation claim failed.  Garcia v. City of Everett, 2018 U.S. App. LEXIS 7087 (9th Cir. March 21, 2018).

Unpaid contributions were not plan assets.  Unpaid contributions to employee benefit plans under ERISA were not trust assets over which business owner exercised control, and plaintiff trusts therefore could not sue owners as fiduciaries to collect those contributions.  Glazing Health & Welfare Fund v. Lame, 2018 U.S. App. LEXIS 7056 (9th Cir. March 21, 2018).

No individual claim based on same predicate as class settlement.  Class action settlement barred overtime claim based on same factual predicate.  Nichols v. Citibank, N.A., 2018 U.S. APP. lexis 6803 (9th Cir. March 19, 2018).

Sanctioned party for not producing expert.  District Court had power to sanction party for failure to comply with order he produce expert for deposition.  Sali v. Corona Medical Ctr., 884 F.3d 1218 (9th Cir. March 19, 2018).

Fraudulent employee convicted.  Court of Appeals affirmed conviction for wire fraud.  Banks e-mail of credit card statements furthered former employee’s scheme to defraud her employer. The electronic nature of the statements allowed her to conceal the fraudulent charges from her employer, because only she knew how to operate the single desktop computer in the office.  U.S. v. England, 2018 U.S. App. LEXIS 6219 (9th Cir. March 13, 2018).

Preferring two years younger no basis for age discrimination.  District Court properly granted summary judgment against age discrimination and retaliation claims.  Employee who took over former driver’s route was two years younger than employee; not substantially younger.  Former driver opposed no discrimination before discharge.  Carlos v. Old Dominion Freight Line, 2018 U.S. App. LEXIS 5781 (9th Cir. March 7, 2018).

Plan description clear.  Long term disability plan complied with ERISA by explaining disability benefits would not be offset by earnings for 24 months of disability and by 50% of earnings for the next 24 months, in same print as rest of the summary plan description and near benefits decision of the document.  Abrams v. Life Ins. Co. of N. Am., (9th Cir. March 7, 2018).

Satisfactory performance required.  District Court properly granted summary judgment against race discrimination and retaliation claims, because former employee did not show he was qualified for his position and performing his job satisfactorily.  Employer reprimanded employee for being argumentative and unprofessional, received complaints he was slowing down training and had interpersonal relationship issues.  Complaints came after employer seriously reprimanded employee, placed him on performance improvement plan and discussed terminating his employment.  Hodges v. CGI Fed. Def. & Intelligence, 2018 U.S. App. LEXIS 5579 (9th Cir. March 5, 2018).

No employer fee award.  District Court did not abuse discrimination by denying employer attorney’s fees under Title VII, by finding former employee’s filing action and continuing to litigate was not frivolous, unreasonable or without foundation.  Mahoe v. Operating Eng’rs Local Union No. 3, 2018 U.S. App. LEXIS 5426 (9th Cir. March 2, 2018).

No sincere and honest belief.  Court of Appeals affirmed judgment based on verdict employer retaliated in violation of the Federal Railroad Safety Act.  Substantial evidence supported jury’s finding former employee’s safety complaints were a contributing factor in hearings to investigate and termination of employee, employer did not sincerely and honestly believe former employee actually engaged in misconduct warranting discharge and instead manufactured a physical altercation with a supervisor to create a pretext for retaliation.  District Court did not abuse discretion when it rejected business judgment rule jury instruction, because the rule was not a legal defense in a FRSA action.  Elliot v. BNSF Ry. Co., 2018 U.S. App. LEXIS 5434 (9th Cir. March 2, 2018).

Make-whole relief for dues check off violation.  NLRB unreasonably declined to award union make-whole relief against employer who unilaterally ended dues-checkoff after collective bargaining agreement expired.  Employer did not reasonably rely on prior case allowing employers to unilaterally end dues-checkoff that implemented union security.  Local Joint Exec. Bd. of Las Vegas v. NLRB, 2018 U.S. App. LEXIS 4818 (9th Cir. Feb.27, 2018).

Circumstances showed discrimination.  District Court improperly granted summary judgment against disparate treatment claim under the ADA.  Former employee had disability, because employer regarded her as having impairment - post concussive headaches and dizziness.  The perceived impairment did not need to limit or be perceived to limit major life activity. Former employee received mixed reviews for 12 years without warning.  Employer would not renew her annual contract; yet five months after she suffered impairment, employer did not review her contract.  There was no documentation of student, parent or teacher complaints, although managers relied on such complaints as critical reason for her termination.  Management provided no warnings concerning the conduct for which it did not renew her contract or otherwise attempt to discipline her for the conduct.  She provided evidence of two other employees who said their contracts were not renewed after they developed mobility impairments.  Baker v. Roman Catholic Archdiocese of San Diego, 2018 U.S. App. 4882 (9th Cir. Feb. 27, 2018).

Union officer liable for rental overpayments.  District Court properly granted summary judgment.  Former union officer breached his fiduciary duty under Section 501 of the LMRDA, because he violated union’s bylaws by making payments to training fund without referring rental overpayment bills to union trustees for review, regardless of good faith or authorization in violation of the bylaws.  Officer was liable for damages because he admitted the rental not was at market rate. Southwest Reg’l Council of Carpenters v. McCarron, 2018 U.S. App. LEXIS 4875 (9th Cir. Feb 27, 2018).

Plan provider not fiduciary when negotiates fixed pay.  Plan service provider was not fiduciary when negotiating its compensation with potential customer.  Provider was not fiduciary when negotiating revenue sharing with investment managers because fully disclosed payments before signing provider agreement and payments did not come from plan assets.  Provider was not fiduciary when withdrawing definitely calculable and non-discretionary compensation according to contract with employer.  Santomenno v. Transamerica Life Ins. Co., 2018 U.S. App. LEXIS 4372 (9th Cir. Feb. 23, 2018).

Preempted retaliation claim.  District Court did not err in granting summary judgment against fair representation claim, because former employee knew the union would not pursue grievances more than six months before he filed his action.  NLRA preempted Hawaii Whistleblower Act claim employer retaliated against employee for filing grievances and reporting or threatening to report OSHA violations.  Local interest exception to preemption did not apply because former employee’s state claim was substantially the same as the unfair labor practice claim his employer retaliated against him for filing grievances.  Casumpang v. Hawaiian Commer. & Sugar Co., 2018 U.S. App. 4159 (9th Cir. Feb. 21, 2018).

Failed to exhaust grievance procedure.  District Court did not err in granting summary judgment against claim employer violated collective bargaining agreement.  Employee did not exhaust mandatory grievance procedure provided by RLA and agreement or qualify for an exemption from exhaustion requirement.  He did not allege employer repudiated the grievance procedure.  He decided to forgo the grievance process and retire before he learned the company would fire him.  Since he could file a grievance himself, any union breach of duty of fair representation could not excuse the failure to exhaust.  District Court did not err in granting summary judgment against claim union breached duty of fair representation, because employee did not show the union behavior was so far outside a wide range of reasonableness to be irrational especially because he decided against union’s advice, confessed to inappropriate harassing behavior and to retire in order to protect his benefits.  Debeikes v. Hawaiian Airlines, Inc., 2018 U.S. App. LEXIS 4179 (9th Cir. Feb. 21, 2018).

Failed to preserve adverse action claim.  Employee did not preserve right to appeal whether substantial evidence supported jury’s finding that the denial of her request to attend training symposium was not an adverse employment action, by moving for judgment as a matter of law under Fed. R. Civ. P. 50(b).  Conforto v. Spencer, 2018 U.S. App. LEXIS 3783 (9th Cir. Feb. 16, 2018).

Replacement less than 10 years younger when no other evidence of age animus and legitimate reason.  District Court properly granted summary judgment against ADEA age discrimination claim.  Because employee’s replacement was less than 10 years younger than him, the age difference was presumptively insubstantial and employee did not produce additional evidence to show the employer considered his age to be significant.  District Court also correctly held the employee failed to raise a triable issue that the employer’s reason for terminating him was pretext.  His violation of the employer’s policy requiring him to report a DUI charge was a valid non-pretextual reason for termination as long as the employer honestly believed the reason and having multiple consistent reasons did not suggest any one was pretextual.  The employee did not identify anyone who violated the reporting policy and was not terminated.  Braaten v. Newmont United States Ltd., 2018 U.S. App. LEXIS 3550 (9th Cir. Feb. 15, 2018).

Handling stress and interacting with others essential functions.  District Court did not err in rejecting Rehabilitation Act claim.  Former employee was unable to perform essential functions of job because essential functions of almost every job is the ability to appropriately handle stress and interact with others.  District Court did not clearly err in concluding employee was unable to complete substantive work independently, take constructive criticism, and avoid interpersonal issues.  Although employer failed to engage in an interactive process with the former employee to find a reasonable accommodation, the District Court did not err in concluding no reasonable accommodation was possible.  Yonemoto v. Shulkin, 2018 U.S. App. LEXIS 3554 (9th Cir. Feb. 15, 2018).

No mediation decision precondition to arbitration.  District Court properly denied union’s motion to compel arbitration.  Collective bargaining agreement provided once parties chose mediation they could continue to arbitration only when the mediator abstained from entering a mediation decision because mediator had reasonable doubt the evidence drove a particular decision.  Since the mediator issued a decision and did not abstain on the required basis, there was no dispute to arbitrate.  United Here Local 30 v. Volume Services, 2018 U.S. App. LEXIS 2073 (9th Cir. Jan. 26, 2018).

U.S. District Court for the District of Hawaii

Exhausted like or reasonably related allegations.  Sheriff exhausted administrative remedies because claims in complaint were like or reasonably related to the allegations in his charge and agency investigation of them could reasonably be expected to grow out of the agency’s investigation.  Temporal links of 17 and five months were too remote to infer a causal link between sheriff’s protected activity and adverse action absent other evidence of retaliation.  Temporary link of less than three months was sufficiently close to support Title VII retaliation claim.  Pratt v. Dep’t of Public Safety, 2018 U.S. Dist. 60138 (D. Haw. April 9, 2018).

Relief for seller’s breach of non-compete.  District Court found and concluded seller breached non-compete provision of purchase and sale agreement, found seller received no earnings, profits or other benefits arising from breach of the provision, but ordered seller to disgorge salary, up-front payment and buyout payment plus pre and post judgment interest for violation.  Barranco v. 3D Sys. Corp., 2018 U.S. Dist. 55256 (D. Haw. March 30, 2018).

No grounds for removal.  Reference to relief provided in prayer for relief and corresponding federal action does not support removal of complaint making only state court claims.  DeGrate v. Hawaiian Airlines, 2018 U.S. List. 61483 (D. Haw. March 14, 2018).

Discrimination hindered performance.  District Court denied summary judgment against age discrimination claim, because employee offered evidence discrimination hindered his performance resulting in his termination.  Maybin v. Hilton Grand Vacations Co., LLC, 2018 U.S. Dist. LEXIS 36324 (D. Haw. March 6, 2018).

No federal individual liability, conduct directed at race or age, available accommodation not accepted.  District Court dismissed discrimination complaint against individual supervisor, because Title VII does not impose liability against individual employees, managers or supervisors.  District Court granted summary judgment against hostile work environment claim, because there was no evidence of any conduct directed at former employees based on race or age.  District Court granted summary judgment against failure to accommodate claim, because employer was not required to create a new position, there was no accommodation that allowed former employee to perform essential functions of position, employee refused an offer of reassignment to a vacant position and did not provide information requested to assess his medical limitations.  Martinez v. Stackley, 2018 U.S. Dist. LEXIS 32907 (D. Haw. Feb. 28, 2018).

EEOC pleading failure.  District Court dismissed EEOC’s claim employer failed to hire applicant because he had a hearing disability.  The allegations of the complaint gave the Court no way to evaluate whether the applicant was qualified; what the job-related requirements of the position the applicant sought or whether he was capable of performing them.  EEOC v. MJC, Inc., 2018 U.S. Dist. Lexis 11494 (D. Haw. Jan. 24, 2018).

Hawaii Intermediate Court of Appeals

Little Norris La Guardia Act applies.  Circuit Court erred in granting partial stay of HLRB order.  HHSC failed to negotiate regarding change in smoking policies at facilities, before complying with procedural requirements in Haw. Rev. Stat. 380-7.  Haw. Heath Sys. Corp. v. United Pu. Workers, 2018 Haw. App. 145 (Haw. App. April 12, 2018).

Arbitration award barred discrimination claim.  Intermediate Court of Appeals affirmed summary judgment against discrimination claim.  Arbitration award found employer had cause for terminating employee and satisfied employer’s burden of showing legitimate non- discriminatory reason for termination.  Employee did not argue discriminatory reason more likely motivated termination.  Because arbitrator found reasons for termination were legitimate, employee did not create material issue of fact about pretext.  Court of Appeals affirmed summary judgment against defamation claim.  Coworkers request to reassign employee was not a false and defamatory statement because it neither involved objective fact nor could be proven true or false. Tavares v. Univ. of Haw., 2018 Haw. App. LEXIS 70 (Feb 22, 2018).

 

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.