Hawaii Employment Law Cases June 17, 2018 to September 29, 2018

U.S. Supreme Court

Deduction of agency fee from public employee’s pay requires affirmative consent.  Neither an agency fee nor any other payment to a union may be deducted from a non-member public employee’s wages, nor may any other attempt be made to collect such a payment, unless the public employee affirmatively consents to pay.   Janus v. AFSCME, Council 31, 138 S. Ct. 2448, 2018 U.S. LEXIS 4028 (June 27, 2018).

U.S. Ninth Circuit Court of Appeals

Compelled arbitration after agency investigation was complete.  Former employee’s private retaliation claim against company was subject to arbitration under provision in agreement to settle prior claims. Company did not waive its right to arbitrate by waiting until after an agency investigation was complete, and private retaliation claim was not inherently non-arbitrable. The company filed its motion to compel arbitration within the limitations deadline after the former employee refused to arbitrate. Employee’s claim against union was not arbitrable, because union was not party to the arbitration provision in the settlement agreement or otherwise entitled to enforce the provision as the agent of the company. Am. Airlines, Inc. v. Mawhinney, 2018 U.S. App. LEXIS 27450 (9th Cir. Sept. 26, 2018).

Arbitrability question delegated to arbitrator.  District Court improperly denied motion to compel arbitration of drivers’ class claim company violated state and federal laws by misclassifying drivers as independent contractors rather than employees, because the drivers arbitration agreements delegated arbitrability question to the arbitrator, the lead plaintiffs had no authority to opt out of arbitration on behalf of the other drivers in the class, and the class action waivers in the arbitration agreements did not violate the National Labor Relations Act under the Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018). District Court improperly granted class certification of the claims and restricted communications to the class, based on the erroneous premise the claims were not arbitrable. O’Connor v. Uber Techs., 2018 U.S. App. LEXIS 27343 (9th Cir. Sept. 25, 2018).

No California de minimis wage and hour defense.  The de minimis defense under the Fair Labor Standards Act does not apply to claims for minutes worked off the clock without compensation under the California law. Troester v. Starbucks Corp., 2018 U.S. App. LEXIS 27364 (9th Cir. Sept. 25, 2018).

Arbitration under non-opposition agreement.  District Court properly compelled arbitration of Union’s claim employer violated provision of memorandum of agreement barring opposition to selection of bargaining agent by terminating two employees for supporting union and requiring arbitration of any disputes concerning interpretation and application of the agreement. Unite Here Int’l Union v. Shingle Springs Band of Miwok Indians, 2018 U.S. App. LEXIS 27250 (9th Cir. Sept. 24, 2018).

State statute requiring payment of prevailing wages to ready mix drivers.  California statute requiring payment of prevailing wages to ready mix drivers delivering to public works did not violate Equal Protections clause of U.S. Constitution, because it had rational bases of benefiting employees on public works projects, ensuring superior projects, protecting union contractors from underbidding and not merely protecting the suppliers of other materials from competition. District Court improperly denied union’s motion to intervene based on its interest in the right to a prevailing wage. Allied Concrete & Supply Co. v. Baker, 2018 U.S. App. LEXIS 26881 (9th Cir. Sept. 20, 2018).

Legitimate reasons not pretextual.  District Court properly granted summary judgment against claim for retaliation in violation of Title VII, because applicant failed to raise genuine issue of material fact as to whether the employer’s legitimate non retaliatory reason for not hiring him was pretextual. McDaniel v. Wilkie, 2018 U.S. App. LEXIS 26928 (9th Cir. Sept. 20, 2018).

Legitimate reasons not pretextual; no disparate treatment or disparate impact claim.  District Court properly granted summary judgment against claim for age discrimination because applicant failed to raise genuine issue of material fact as to whether employer’s legitimate non-discriminatory reason for not hiring was perpetual. District Court properly dismissed race and sex claims because applicant failed to allege facts sufficient to show employer discriminated against him on the basis of race or sex. District Court properly dismissed disparate treatment claim, because applicant failed to alleged facts showing specific, facially neutral employment practice had an adverse impact on applicants who are male, black or over forty. White v. Bridenstine, 2018 U.S. App. LEXIS 26926 (9th Cir. Sept. 20, 2018).

Tip credit available only for hours worked in tipped occupation, including hours related to tipped occupation not more than 20% of total hours worked.  Employer may not take tip credit against wages for hours worked unless employee customarily and regularly receives more than $30 a month in tips and then only for hours spent in tipped occupation and duties performed during hours are related to tipped occupation (such as server who does preparatory or closing activities, rolls silverware and fills salt and pepper shakers while the restaurant is open, cleans and sets tables, makes coffee and occasionally washes dishes or glasses, but not cleaning bathrooms or washing windows), so long as they do not spend more than 20% of the hours worked performing the related duties. Marsh v. J. Alexander’s LLC, 2018 U.S. App. LEXIS 26387 (9th Cir. Sept. 18, 2018).

Timing prevented summary judgment against ADA retaliation claim.  Substantial limitation need not significantly or severely restrict.  District Court improperly granted summary judgment against ADA claim, because former employee who alleged his offer to transfer to a part-time position was rescinded and he was forced to resign shortly after he informed the employer he had shoulder pain raised sufficient evidence for a jury to consider the claim he was terminated because he was regarded as having a disability. It was an error to require the employee to show the employer believed the employee was substantially limited in a major life activity. Employer did not offer evidence the employee’s perceived injury was transitory or minor. The District Court also erred by deciding the driver was not physically disabled because the shoulder pain did not substantially limit the major life activity of lifting. In order for an impairment to substantially limit a major life activity, it need not prevent or significantly or severely restrict the activity. Nunies v. HIE Holdings, Inc., 2018 U.S. App. LEXIS 26221 (9th Cir. Sept. 17, 2018).

Without department wide policy of other alleged similarity of material fact or law, no collective action.  Opt-in plaintiffs who were dismissed and settled their wage and hour claims individually had standing to appeal District Court’s order decertifying police officers’ collective action alleging pervasive, unwritten policy discouraging the reporting of overtime. District Court properly decertified collective action, because officers failed to create a triable issue of fact regarding the existing of a department wide policy or other alleged similarity of law or fact material to the disposition of their claims, the officers were not similarly situated.  Campbell v. City of Los Angeles, 2018 U.S. App. LEXIS 25951 (9th Cir. Sept. 13, 2018).

Estate did not own claims that arose after employee filed bankruptcy petition.  Former employee’s bankruptcy estate owned all claims that arose before she filed the bankruptcy petition, but not the claims that arose after she filed the petition. Menchaca v. Vasquez (In re Vasquez), 2018 U.S. App. LEXIS 25974 (9th Cir. Sept. 13, 2018).

Conditioning job offer on completion of MRI at employee’s own cost showed perceived disability.  Employer perceived applicant to have an impairment for purpose of the ADA where, requesting an MRI because of the employee’s prior back issue and conditioning his job offer on the completion of the MRI at his own cost, the employer assumed the employee had a back condition that disqualified him from the job unless he could disprove the assumption. Allowing employers to place burden on persons with impairments to pay for follow up testing would subvert the goals of the ADA. Employer had ample evidence applicant was qualified to perform job. EEOC v. BNSF Railway Co., 2018 U.S. App. LEXIS 25852 (9th Cir. Sept. 12, 2018).

Disputed question whether work assignment requirement applied, had work preservation object.  District Court improperly granted summary judgment movie studio did not violate collective bargaining agreement requiring it to score domestically motion picture it produced domestically, because there was a disputed question of fact whether movie studio had sufficient authority over the hiring of scoring musicians such that the agreement applied. Hot cargo prohibition did not apply to requirement because it has a work preservation object. Am. Fedn. of Musicians of the U.S. v. Paramount Pictures Corp., 2018 U.S. App. LEXIS 25570 (9th Cir. Sept. 10, 2018).

No FAAA preemption of state applying independent contract test to motor carriers.  Federal Aviation Administration Authorization Act did not preempt state from using common law test to determine whether motor carriers properly classified their drivers as independent contractors, because the test is generally used in state regulation and does not relate to prices, routes or services. Cal. Trucking Ass’n. v. Su, 2018 U.S. App. LEXIS 25567 (9th Cir. Sept. 10, 2018).

No LMRA preemption of football players’ claim league injured them by distributing controlled substances and prescription drugs.  Section 301 of Labor Management Relations Act did not preempt retired players’ state law claims the league injured them by distributing controlled substances and prescription drugs, because claims neither arose from collective bargaining agreements nor required their interpretation. Dent v. Nat’l Football League, 2018 U.S. App. LEXIS 25302 (9th Cir. Sept. 6, 2018).

No ERISA preemption of state regulation of general contractors’ vicarious liability.  ERISA did not preempt Nevada amendment limiting general contractors’ statutory vicarious liability for subcontractors wage and trust fund contribution debts, while expanding information to reduce the risk of delinquencies in the first place.  Bd. of Trs. of the Glazing Health & Welfare Trust v. Chambers, 2018 U.S. App. LEXIS 25030 (9th Cir. Sept. 4, 2018).

Failure to exhaust.  District Court did not err in dismissing former employee’s Title VII claims because she failed to exhaust her administrative remedies by filing a charge with the EEOC within 300 days after the alleged discriminatory act occurred.  Holmes v. Tacoma Pub. School Dist. No. 10, 2018 U.S. App. LEXIS 25055 (9th Cir. Sept. 4, 2018).

Summary judgment against discrimination, harassment and retaliation claims.  District Court properly granted summary judgment against employee’s discrimination claim because she failed to raise a genuine dispute of material fact as to whether she was performing according to defendant's legitimate expectations, whether similarly situated individuals were treated more favorably, and whether defendant's legitimate, nondiscriminatory reasons for her demotion and denial of promotion were pretextual. District Court properly granted summary judgment against employee’s hostile work environment claim because she failed to raise a genuine dispute of material fact as to whether she was subjected to sufficiently severe or pervasive conduct.  District Court properly granted summary judgment against employee’s retaliation claim because she failed to raise a genuine dispute of material fact as to whether there was a causal relationship between her engagement in a protected activity and a materially adverse employment action.  Richardson v. Yang, 2018 U.S. App. LEXIS 25066 (9th Cir. Sept. 4, 2018).

No LMRA preemption of city’s minimum wage ordinance allowing union waiver.  District Court did not have removal jurisdiction over employee’s claim based on city’s minimum wage ordinance, because whether the ordinance allowed the employee’s union to waive the minimum wage in exchange for other benefits was a question of state law, not interpretation of a collective bargaining agreement.  McCray v. Marriott Hotel Servs., 2018 U.S. App. LEXIS 24854 (9th Cir. Aug. 31, 2018).

Court of Appeals adjudicated contempt against employer that did not comply with enforced NLRB order.  Court of Appeals adjudicated contempt against employer that failed to comply with judgment enforcing board decision requiring it to provide information to unions.  NLRB v. Cervera Auto. Grp. LLC, 2018 U.S. App. LEXIS 24935 (9th Cir. Aug. 31, 2018).

No plausible discrimination or hostile work environment claims.  District Court properly dismissed former employee's discrimination claim because he failed to allege facts sufficient to state a plausible claim. District Court properly dismissed former employee's hostile work environment claim because he did not allege that the conduct was sufficiently severe or pervasive. Leyba v. NV Energy, Inc., 2018 U.S. App. LEXIS 24226 (9th Cir. Aug. 27, 2018).

Retaliation decision affirmed under ARRA.  Court of Appeals denied petition for review by tribe challenging decision of U.S. Dept. of Int. ordering tribe to provide relief to individual removed from the tribes governing body. The individual was an employee eligible for protection under the whistleblower provision of the American Recovery and Reinvestment Act, because he provided services on behalf of his employer, the tribe. The Dept.’s order did not infringe on the tribe’s sovereignty and power of self-governance, and the tribe agreed to federal oversight when it accepted stimulus funds. The tribe did not have a due process right to a hearing before the Dept. reached its conclusion because it consented to the procedures in the Act. The Dept. not providing the inspector general’s report until it issued it preliminary decision was harmless error because the Dept. did not err in finding the removal of the individual was retaliatory.  Chippewa Cree Tribe of the Rocky Boy’s Reservation v. U.S. Dept. of Int., 2018 U.S. App. LEXIS 23310 (9th Cir. Aug. 21, 2018).

Dismissal proper.   District Court properly dismissed former employee’s ADEA, ADA and Title VII claims because she failed to show employer discriminated because of age, disability or sex. French v. Wash. State Dep’t of Health, 2018 U.S. App. LEXIS 23364 (9th Cir. Aug. 21, 2018).

Wearing headscarf, appearance and name did not show national origin or race.  District Court properly granted summary judgment against religious discrimination, national origins claims, because rejected applicant failed to show different religion by successful applicant’s appearance and wearing a headscarf, or different national origin and race by successful applicant’s appearance and name. She failed to show school’s legitimate nondiscriminatory reasons for hiring the successful applicant were pre textual, including an engineering degree permitting her to teach multiple subjects and the concern about the unsuccessful applicant’s ability to accept authority and collaborate with others, even though the job posting required by the collective bargaining agreement did not list multiple subjects and decision maker did not follow hiring practice of others by numerically scoring applicants and referring to diversity. Franett-Fergus v. Omak Sch. Dist. 19, 2018 U.S. App. LEXIS 22983 (9th Cir. Aug. 17, 2018).

Employer substantially identical to employer named in charge.  District Court improperly granted summary judgment against Title VII discrimination claim, because employer not named in charge was involved in the acts giving rise to the claim and is substantially identical to the employer named in the charge, due to their shared ownership place of business and business operations, former employee filed her complaint against the correct employer within 90 days of receiving her right to sue letter, so long as her allegation the employer isolated her from other workers within 300 days before she file the charge was part of the same unlawful employment practice as the alleged harassment outside of the 300 days. Romero-Manzano v. Carlton Nursery Co., LLC, 2018 U.S. App. LEXIS 22404 (9th Cir. 2018).

No NLRA preemption of ordinance requiring disclosure of names, addresses and phone numbers to qualified driver representative. District Court properly dismissed Uber and Lyft drivers’ claim National Labor Relations Act preempted Seattle ordinance requiring Uber and Lyft to disclose their names, addresses and phone numbers to qualified driver representatives so they could get solicited for representation was not ripe for adjudication. Clark v. City of Seattle, 899 F.3d 802 (9th Cir. Aug. 9, 2018).

Amount in controversy includes anticipated attorneys’ fees.  Plaintiffs’ future attorneys’ fees are part of the amount at stake in the litigation and must be considered in determining whether employer meets the amount in controversy requirement for removal under the Class Action Fairness Act. Fritsch v. Swift Transp. Co. of Ariz., LLC, 899 F.3d 785 (9th Cir. Aug. 8, 2018).

Employee Polygraph Protection Act violation.  District Court properly granted summary judgment under Employee Polygraph Protection Act against employer who required DEA linguists to take polygraphs, inquired in to the results of the polygraphs and discharged employees who failed or refused to take polygraphs or failed them. Bates v. Metro. Interpreters & Translators, Inc., 2018 U.S. App. LEXIS 21597 (9th Cir. Aug. 3, 2018).

No RLA preemption of state family care act claim.  Railway Labor Act did not preempt worker’s Washington Family Care Act law claim allowing her to reschedule and use accrued vacation time to care for her sick child because the claim neither arose entirely from nor required construction of collective bargaining agreement which only needed to be consulted for existence of accrued vacation time. Alaska Airlines, Inc. v. Schurke, 898 F.3d 904 (9th Cir. Aug. 1, 2018).

No NLRA preemption of state condition on credit against prevailing wage requirement.  National Labor Relations Act did not preempt California law allowing employers to take credit against prevailing wage requirement on public jobs for industry advancement funds only if their employees consent to doing so through a collective bargaining agreement negotiated by a union. Interpipe Contr., Inc. v. Becerra, 898 F.3d 879 (9th Cir. July 30, 2018).

No agreement to arbitrate fiduciary breach claims.  District Court properly denied motion to compel current and former employees to arbitrate their collective claims for breach of fiduciary duty against university and its retirement plan, because employees’ agreement to arbitrate employment claims did not cover claims the employees brought on behalf of the plans.  Munro v. Univ. of Southern California, 896 F.3d 1088 (9th Cir. July 24, 2018).

Arbitrator’s interpretation included remedies.  District Court improperly vacated remedies arbitrator granted union because arbitrator enjoined practice arbitrator determined violated collective bargaining settlement agreement. Multicare Health Sys. v. Wash. State Nurses Ass’n, 2018 U.S. App. LEXIS 20417 (9th Cir. July 23, 2018).

Delinquent contributions are not plan assets.  District Court properly dismissed employee benefit trust fund’s claim delinquent contributions company owed were assets of the plan and owners of company were fiduciaries responsible for paying them when company declared bankruptcy.   Glazing Health & Welfare Fund v. Lamek, 896 F.3d 908 (9th Cir. July 19, 2018).

Summary judgment against discrimination, and hostile work environment claims.  District Court properly granted summary judgment on employee's national origin, race, and sex discrimination claims because he failed to raise a genuine dispute of material fact as to whether his employer's proffered legitimate, nondiscriminatory reason for his demotion was pretextual.  District Court properly granted summary judgment against employee's hostile work environment claim because he failed to raise a genuine dispute of material fact as to whether the complained of conduct was sufficiently severe or pervasive to alter the conditions of his employment and create an abusive work environment.  Nguyen v. Nielsen, 2018 U.S. App. LEXIS 19882 (9th Cir. July 18, 2018).

Summary judgment against retaliation claim. District Court properly granted summary judgment on employee's retaliation claim based on her Equal Employment Opportunity Commission charge because she failed to raise a genuine dispute of material fact as to whether the employer's legitimate, non-retaliatory reasons for its adverse actions were pretextual.  Osias v. Cty. of Santa Clara, 2018 U.S. App. LEXIS 19687 (9th Cir. July 17, 2018).

Injunction requiring unconditional bargaining.  District Court properly issued an injunction under Section 10(j) of the National Labor Relations Act, requiring the employer to unconditionally bargain.  The National Labor Relations Board Regional Director presented evidence to establish the employer engaged in unfair labor practices by recognizing and bargaining unconditionally with the union and later unlawfully withdrawing recognition of the union and refusing to unconditionally bargain.  The evidence indicated irreparable harm from dissipation of employee support for the union as well as employee fear of retaliation and discrimination by the employer.  Affidavits showed an employee engaged in protected activity and the employer's asserted justification was pretextual; employer on several occasions engaged in retaliatory and hostile acts against union supporters and the union established a likelihood of irreparable harm for the discrimination claim.  Coffman ex. rel. NLRB v. Queen of the Valley Med. Ctr., 895 F.3d 717 (9th Cir. July 16, 2018).

STAA retaliation protection does not cover workplace safety claims.  District Court properly granted judgment against claim of retaliation under the Surface Transportation Assistance Act, because employee’s complaints—dirt, dust, gravel, ruts, poor lighting, and lack of fencing/security at the employer’s two Reddaway terminals—related to general workplace safety conditions at the lots, rather than commercial motor vehicle safety protected activity under the STAA.  Evans. V. USF Reddaway, Inc., 2018 U.S. App. LEXIS 19535 (9th Cir. July 16, 2018).

Violation of alcohol policy defeated ADA discrimination claim.  District Court properly granted summary judgment against ADA discrimination claim.  Employer articulated a legitimate nondiscriminatory reason for driver's termination by presenting evidence employee was terminated because of the results of the breathalyzer tests he took, and his violation of the employer’s alcohol policy.  O’Brien v. R.C. Willey Home Furnishings, 2018 U.S. App. LEXIS 19291 (9th Cir. July 13, 2018).

No harm or risk of harm from FCRA violation.  Although applicant alleged prospective employer violated Fair Credit Reporting Act’s procedural requirement by failing to provide him a copy of his consumer credit report, notice of his FCRA rights and an opportunity to challenge inaccuracies in the report before taking adverse action based on the report, he did not show how the alleged violation actually harmed or presented a material risk of harm to him and therefore hand no standing to make the claim.  Dutta v. State Farm Mut. Auto. Ins. Co., 895 F.3d 1166 (9th Cir. July 13, 2018).

Question whether timely filed commonwealth charge may satisfy EEOC filing requirement.  District Court improperly dismissed Title VII, ADA and GINA claim based on failure to file charge with the EEOC within 300 days after his termination, without considering whether charge filed with Commonwealth of the Northern Mariana Islands Department of Labor 18 days after his termination was constructively filed under a work sharing agreement with the EEOC.  Mirzoian v. El-Rahi, 2018 U.S. App. LEXIS 19289 (9th Cir. July 13, 2018)

Summary judgment against discrimination claim.  District Court properly granted summary judgment on employee's age discrimination claim because employee failed to raise genuine dispute of material fact as to whether he was not rehired because of his age, and whether the legitimate, non-discriminatory reason for defendant's actions was pretextual.  Daniels v. Brennan, 2018 U.S. App. LEXIS 19288 (9th Cir. July 13, 2018).

Summary judgment against discrimination claim.  District Court properly dismissed employee's discrimination claims under the Rehabilitation Act and Title VII stemming from her terminations because employee failed to exhaust her administrative remedies and/or failed to allege facts sufficient to state a plausible claim. Blackman-Baham v. Nielsen, 2018 U.S. App. LEXIS 19177 (9th Cir. July 12, 2018).

Motion in limine excluding evidence of different treatment of employees not determined similarly situated.  District Court properly granted employer's motion in limine to exclude supposed evidence of how other residents who had committed errors had been treated differently from the plaintiff, on the ground the evidence would lead to "mini-trials" about those residents' conduct.  The plaintiff failed to adduce any evidence of any specific similarly situated resident who was treated differently, instead arguing generally that this category of evidence would be relevant. The time to determine whether any other resident was similarly situated was before trial, when the District Court could make a determination on that issue without risk of confusing the jury. But the plaintiff offered no details or evidence on that score.  Diederich v. Providence Health & Servs., 2018 U.S. App. LEXIS 19178 (9th Cir. July 12, 2018).

Improper summary judgment against ADA failure to accommodate and retaliation claims.  District Court improperly granted summary judgment on claims company failed to accommodate former employee’s disability and terminated her in retaliation for seeking accommodation.  District Court improperly weighed the credibility of an affidavit from employee's district supervisor, saying her regional supervisor told her employee's requested accommodation "was not going to happen," the employer "needed to get rid of" the employee, and management "needed to cover [its] tracks." District Court erroneously found employee meeting with the district supervisor "to go over an accommodation plan" before the regional supervisor’s statements could be reasonably construed as protected activity.  The district supervisor’s testimony was direct evidence of retaliation and failure to engage in the interactive process in good faith.  Peterson v. Kelly Servs., 2018 U.S. App. LEXIS 18737 (9th Cir. July 10, 2018).

Whether lifting 50 pounds was essential job function was material issue of fact.  District Court improperly granted summary judgment based on conclusion employee was not qualified individual for purpose of ADA discrimination claim.  District Court improperly concluded it was undisputed lifting more than 50 pounds was an essential function of the employee’s position.  Employee testified he only had to tilt the recliners and stated that he "never had to lift one up" and another employee testified the most weight he lifted on a regular basis was 40 pounds.  Pfendler v. Liberty Dialysis-Hawaii, LLC, 2018 U.S. App. LEXIS 18028 (9th Cir. July 2, 2018).

Legitimate reasons justified summary judgment against FMLA interference claim.  District Court properly granted summary judgment against claim taking FMLA leave was negative factor in the decision to terminate him.  Employee’s unilateral cancellation of a month of appointments contravened his employer’s principles of customer service and he had three warnings about his performance prior to his leave.  His restricted computer access did not render his post leave position substantially dissimilar from before, because he had no sales consultants working for him.  He did not show a genuine issue of material fact precluding the showing his employer and Home Depot were not joint employers. Eau Claire v. Home Depot USA, Inc., 2018 U.S. App. LEXIS 17787 (9th Cir. June 28, 2018).

Bad faith delay in job evaluation process justified summary judgment against ADA discrimination claim.  District Court did not erroneously enter judgment against ADA discrimination claim.  District Court did not clearly err in finding employer withdrew job offer because employee delayed in bad faith the medical evaluation process and employer had pressing need in filling the position.  Holding the job offer open for her bad faith delay in the medical evaluation process was not a reasonable accommodation and she obstructed the interactive process, while the employer had good cause for trying to determine whether she was able to perform the job.  Huge v. Boeing Co., 2018 U.S. App. LEXIS 17637 (9th Cir. June 27, 2018).

Summary judgment against disability discrimination claim improper whether declaration showed employer treated others better.  Employer obligated to explore alternate accommodation, after initial accommodation failed.  District Court improperly granted summary judgment against disability discrimination claim under ADA, because employee’s declaration stated employer terminated him for sleeping on the job and failing to report certain activity by residents but not terminating other employees for similar behavior.  District Court improperly granted summary judgment against failure to accommodate claim because employer failed to explore other possible accommodation after it became aware the initial accommodation was ineffective.  Since employer terminated the employee over a year after he filed complaints with state agencies and there was no other evidence of causation, District Court properly granted summary judgment against the claim under the Hawaii Whistleblower Protection Act.  The District Court properly granted summary judgment against the intentional infliction of emotional distress claim, because there was no evidence of outrageous conduct.  Turner v. Ass’n of Apt. Owners of Wailea Point Vill., 2018 U.S. App. LEXIS 17644 (9th Cir. June 27, 2018).

Hostile work environment claim time barred.  District Court properly granted summary judgment against hostile work environment claim, because former employee did not file charge of discrimination within 300 days after employee last worked.  Chung v. City & County of Honolulu, 2018 U.S. App. LEXIS 17635 (9th Cir. June 27, 2018). 

Adequate preventative and corrective action defeated co-worker harassment claim.  District Court properly granted summary judgment against co-worker sexual harassment claim, because supervisor immediately relayed complaint to the city administrator and administrator began investigation.  Within three days, the city placed the alleged harasser and reported his alleged conduct to the police.  The complainant never returned to work and the harasser resigned.  The City’s response was adequate; it took immediate action, the harassment ended, and the response was likely to persuade potential harassers to refrain from unlawful conduct.  Stetner v. City of Quincy, 2018 U.S. App. LEXIS 17007 (9th Cir. June 22, 2018).

No FAAA preemption of state workers compensation penalties.  Federal Aviation Administration Authorization Act did not preempt the Washington State Department of Labor and Industries from imposing workers compensation premiums and penalties for violations of workers compensation laws and carrier.  Delivery Express, Inc. v. Sacks, 2018 U.S. App. LEXIS 17001 (9th Cir. June 22, 2018).

Summary judgment against discrimination claim.  District Court properly granted summary judgment against discrimination claims, because former employee failed to offer specific, substantial evidence his termination for demeaning actions towards students and staff was pretext.  Diss v. Portland Pub. Schs, 2018 U.S. App. LEXIS 16869 (9th Cir. June 21, 2018).

No LMRA jurisdiction to declare collective bargaining agreement void based on misrepresentation, unless union brings contract action first.  Federal courts have no jurisdiction under Section 301 of the Labor Management Relations Act to declare a collective bargaining agreement is void based on misrepresentation, unless union accuses the employer of violating the agreement in court first.  Nu Image, Inc. v. Int’l Alliance of Theatrical Stage Emples., 893 F.3d 636 (9th Cir. June 20, 2018).

Arbitrator could reform agreement based on parties’ mutual mistake, absent employer reservation of issue for court.  Employer waived issue whether arbitrator could reform collective bargaining agreement based on mutual mistake by not expressly reserving the issue for the court and arguing it to the arbitrator instead.  Arbitrator was authorized to reform the agreement based on the parties’ mutual mistake, despite the provision barring it from adding to or changing the agreement.  Asarco, LLC v. United Steel, Paper and Forestry, Rubber, Mfg. Energy, Allied Industrial & Serv. Workers Int’l Union, AFL-CIO, CLC, 893 F.3d 621 (9th Cir. June 19, 2018).

 

U.S. District Court, District of Hawaii

Strong showing needed to overcome same actor defense.  District Court granted summary judgment against age discrimination claim, because employer established the same actor made the decision to hire and fire the employee and employee failed to make the strong showing needed to overcome the same actor inference and show his failure to meet sales goals were pretext, by offering age-related statements not directly tied to the termination decision. Maybin v. Hilton Grand Vacations Company, LLC, 2018 U.S. Dist. LEXIS 167267 (D. Haw. Sept. 27, 2018).

Preliminary injunction based on misappropriation of trade secrets.  District Court granted preliminary injunction against new drug testing company servicing former clients of older one.  Concluded older drug testing company was likely to succeed on claims former employees and new company misappropriated trade secrets from and lied about the status of older company, or at least raised serious questions going to the merits.  Determined older company was likely to suffer irreparable harm absent injunctive relief, the balance of hardships favored the old company and the injunction was in the public interest. WHIC, LLC v. NextGen Labs., Inc., 2018 U.S. Dist. LEXIS 158380 (D. Haw. Sept. 17, 2018).

Manager repeatedly asking whether employee was physically able to perform job and participating in adverse action was sufficiently specific direct evidence to avoid summary judgment against ADA disparate treatment claim.  District Court granted summary judgment against disparate treatment under ADEA claim but denied it with respect to disparate treatment claim under ADA.  Former employee failed to raise direct or circumstantial evidence of age discrimination, because the comments he relied on were too general or not connected to the adverse action against him and he failed to offer any evidence the reason for his termination – having employees drive forklifts with bald tires – was pretextual.  The comment the employer relied on to prove ADA related disparate treatment – repeatedly asking whether he was physically able to perform his job – were sufficiently specific and by the manager who participated in the adverse action.  District Court granted summary judgment against hostile environment claims under the ADEA and ADA.  Former employee did not show comments about age and need to be off for surgeries were timely raised or so numerous or of such a nature they changed the conditions of his employment or created a hostile work enforcement.  District Court denied summary judgment against ADA retaliation claim because employee showed manager took adverse action against him after he said he would file a complaint.  Crowley v. Wal-Mart Stores, Inc., 2018 U.S. Dist. LEXIS 154952 (D. Haw. Sept. 11, 2018).

Claims like or reasonably related to allegations in charge were exhausted.  District Court denied motion to dismiss Title VII claim based on failure to exhaust administrative remedies, because no evidence claims were not like or reasonably related to allegations contained in charge.  Claims are reasonably related to allegations to the extent that those claims are consistent with the plaintiff’s original theory of the case, as reflected in the plaintiff’s factual allegations and his assessment as to why the employer’s conduct is unlawful.  Sandowski v. Nielsen, 2018 U.S. Dist. LEXIS 153113 (D. Haw. Sept. 6, 2018).

Retaliation claim did not depend on merit of underlying discrimination claim.  Aiding and abetting claim could be based on use of disciplinary committees and investigations.  District Court denied motion to dismiss retaliation claim, on ground retaliation claim did not depend on merit of underlying discrimination claim.  District Court denied motion to dismiss state law aiding and abetting claim, based on allegation individual used disciplinary committees and investigations to retaliate against plaintiff because of his protected activity.  District Court granted plaintiff leave to amend complaint to alleged incidents to support his emotional distress claim within the two year status of limitations.  Begley v. Cty. of Kauai, 2018 U.S. Dist. LEXIS 128312 (D. Haw. July 31, 2018).

Summary judgment against discrimination, retaliation and hostile work environment claims.  District Court granted summary judgment against discrimination and retaliation claims, because employer presented legitimate non-discriminatory reasons for the challenged personnel actions and former employee failed to prove the reasons were pretext for discrimination or retaliation.  District Court granted summary judgment against hostile work environment claim, because former employee was not subjected to any verbal or physical conduct because of his race, color or religion, and there was no conduct sufficiently severe or pervasive to alter the conditions of the former employee’s employment or create an abusive working environment.  Thomas v. Spencer, 2018 U.S. Dist. LEXIS 127543 (D. Haw. July 30, 2018).

Repeatedly violating conflict of interest policy and failing to attend mandatory meetings legitimate, non pretextual reasons.  Non-supervisory reports to police were not retaliatory.  District Court granted summary judgment against Title VII retaliation claim, because former employee did not engage in any protected activity before the employer placed him on administrative leave, he failed to show the employer’s legitimate reasons for terminating his employment – repeatedly violating the employer’s conflict of interest policy and failing to attend mandatory meetings – were pretextual and there was no evidence the employer – as opposed to non-supervisory managers who made reports – orchestrated his post termination arrest.  Knowles v. Hawaii Pacific University, 2018 U.S. Dist. LEXIS 114683 (D. Haw. July 10, 2018).

Removal was untimely.  District Court remanded class claim for service charges held by employer without required disclosure, because employer did not remove claim to federal court under the Class Action Fairness Act within 30 days after receiving a paper from which it may have been ascertained the case was removable.  Bartholoma v. Marriott Bus. Servs., 2018 U.S. Dist. LEXIS 114681 (D. Haw. July 10, 2018).

Need to plead facts showing plausibly have disability and serious health condition. District Court dismissed claim for disability discrimination under the ADA and state law, with leave to amend, because the complaint did not allege facts showing she was disabled or qualified.  District Court dismissed for interference with FMLA leave, with leave to amend, because the complaint did not allege facts showing she had a serious health condition or that the employer fired her because she took FMLA leave. District Court dismissed claim for retaliation, without leave to amend, because former employee did not include factual allegations in her charge of discrimination that would lead to her retaliation claim. District Court dismissed claim against two entities named as defendants, because complaint did not allege facts showing they were joint employers or integrated with employer, Bowling v. Diamond Resorts Int’l, Inc., 2018 U.S. Dist. LEXIS 110649 (D. Haw. July 3, 2018).

Plead hostile work environment claim.  District Court denied motion to dismiss hostile work environment claim, because complaint alleged facts sufficient to draw a reasonable inference the employer’s conduct was severe and pervasive and was based on his national origin.  Dai v. Nikaido, 2018 U.S. Dist. LEXIS 105981 (D. Haw. June 25, 2018).

Improper removal.  District Court remanded removed case to state court.  Former employee’s complaint relied on alternative state law theories.  Junttonen v. Rehab. Hosp. of the Pac., 2018 U.S. Dist. LEXIS 104564 (D. Haw. June 21, 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.