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Part-time VA physician was subject to Civil Service Reform Act

Mangano v. US (9th Cir 07/01/2008)

http://caselaw.lp.findlaw.com/data2/circs/9th/0517334p.pdf

Mangano was discharged from his part-time job as a physician with the Veterans' Administration (VA).  He sued the VA under the Federal Tort Claims Act (FTCA) for emotional distress and other injuries allegedly suffered in conjunction with his discharge.  The trial court dismissed for lack of subject matter jurisdiction.  The 9th Circuit affirmed, concluding that Mangano's claims were preempted by the Civil Service Reform Act (CSRA).

Mangano was hired as a part-time physician pursuant to 38 USC Section 7405(a)(1)(A).  That Section provides that the Veterans Health Administration may employ part-time physicians "without regard to civil service or classification laws, rules, or regulations."  Based on the plain language of that provision, the 9th Circuit held in Orloff v. Cleland, 708 F.2d 372 (9th Cir 1983) that "civil service laws shall not apply to part-time physicians employed by the VA."  However, eleven years after Orloff Congress amended the CSRA to provide that "employees appointed under chapter 73 or 74 of title 38 shall be employees" for purposes of various sections of the CSRA.  Included among those sections of the CSRA is Section 2302, which governs prohibited employment practices.  The court concluded that, although Section 7405(a) allows part-time VA physicians to be hired "without regard to civil service or classification laws, rules, or regulations," once such employees are hired they are subject to relevant provisions of the CSRA (including Section 2302)

Trial court erred in dismissing employee's 81-page complaint for alleged violation of Fed.R.Civ.P. 8

Hearns v. San Bernardino (9th Cir 07/01/2008)

http://caselaw.lp.findlaw.com/data2/circs/9th/0556214p.pdf

Hearns sued the public employer, asserting claims for violation of Title VII, 42 USC Sections 1981, 1983, 1985, and 1986, and state law.  The complaint was 81 pages in length and contained 17 claims.  An amended complaint was of similar brevity.  The trial court dismissed for violation of Fed.R.Civ.P. 8.  The 9th Circuit reversed.  The court observed that "[i]t is the right and duty of a plaintiff initiating a case to file a 'short and plain statement of the claim [ ]'" under Fed.R.Civ.P. 8(a)(2).  The court concluded, however, that "[n]either complaint warranted dismissal under Rule 8:  although each set forth excessively detailed factual allegations, they were coherent, well-organized, and stated legally viable claims."

Employee recovered lost wages resulting from emotional condition caused by wrongful denial of FMLA leave

Farrell v. Tri-County Metropolitan (9th Cir 06/27/2008)

http://caselaw.lp.findlaw.com/data2/circs/9th/0635484p.pdf

Farrell sued the employer for violation of the Family Medical Leave Act (FMLA) alleging the employer's wrongful denial of FMLA leave caused an emotional condition resulting in absence from work. The jury found in favor of Farrell awarding lost wages. The 9th Circuit affirmed. The employer argued that the FMLA did not permit recovery of emotional distress damages. The court stated that the employer violated the FMLA and Farrell was awarded lost wages for days of work that he missed as a result of the employer's violation.

Employer has burden of persuasion on ADEA's reasonable factors other than age

Meacham v. Knolls Atomic Power Laboratory (US Supreme Court 06/19/2008)

http://www.supremecourtus.gov/opinions/07pdf/06-1505.pdf

The employer laid off employees during an involuntary reduction in force. Of the 31 employees laid off, 30 were over 40 years old. The workforce as a whole was 60% over 40. Some of the laid off employees sued under the Age Discrimination in Employment Act (ADEA), using a disparate impact theory. A jury found in favor of the plaintiffs.

The US Supreme Court held, 8-0, that an employer defending a disparate impact claim under the ADEA bears both the burden of production and the burden of persuasion for the "reasonable factors other than age" (RFOA) affirmative defense. The ADEA's text and structure indicate that the RFOA exemption creates an affirmative defense. The "business necessity" test has no place in ADEA disparate impact cases.

Retirement plan did not violate ADEA (5-4)

Kentucky Retirement Systems v. EEOC (US Supreme Court 06/19/2008)

http://www.supremecourtus.gov/opinions/07pdf/06-1037.pdf

EEOC sued claiming that a disability-retirement-benefits plan for state and county employees violates the Age Discrimination in Employment Act (ADEA).

The KRS disability-retirement-benefits plan disqualifies employees who are still working from receiving disability-retirement benefits if they have already reached normal retirement-benefit age at the time they become disabled. The plan also calculates disability retirement benefits in such a way that an older employee who is eligible to receive disability benefits receives fewer benefits - in the form of lower monthly benefit payments - than a younger disabled employee receiving disability-retirement benefits who is similar to the older disabled employee in every relevant factor other than age.

The US Supreme Court held, 5-4, that Kentucky's system does not discriminate against workers who become disabled after becoming eligible for retirement based on age. The differences in treatment in this particular case were not "actually motivated" by age. This was a special case of differential treatment based on pension status.

NLRA preempts state law regulating employer speech about union organizing (7-2)

Chamber of Commerce v. Brown (US Supreme Court 06/19/2008)

http://www.supremecourtus.gov/opinions/07pdf/06-939.pdf

California Gov't Code Section 16645.2(a) bars private employers who are "recipient[s] of a grant of state funds" from "us[ing] the funds to assist, promote, or deter union organizing." Similarly, Section 16645.7(a) bars "a private employer receiving state funds in excess of [$10,000] in any calendar year on account of its participation in a state program" from using such funds "to assist, promote, or deter union organizing."

The US Supreme Court held, 7-2, that the National Labor Relations Act (NLRA) preempts California's statute. California's policy judgment that partisan employer speech necessarily interferes with an employee's choice about union representation is the same policy judgment that Congress renounced when it amended the NLRA to preclude regulation of noncoercive speech as an unfair labor practice.

ERISA conflict of interest is a factor when court reviews denial of claim (7-2)

Metropolitan Life Insurance v. Glenn (US Supreme Court 06/19/2008)

http://www.supremecourtus.gov/opinions/07pdf/06-923.pdf

MetLife, an ERISA plan administrator, terminated Glenn's disability benefits on the ground that she had improved to the point of no longer being totally disabled. Glenn sued to recover her benefits. The 6th Circuit noted that MetLife operated under an apparent conflict  of interests because MetLife both decides the claims and pays the claims. Although the trial court upheld MetLife's denial of the claim, the 6th Circuit reviewed the evidence and set aside the denial of benefits.

The US Supreme Court, 7-2, held (1) a plan administrator's dual role of both evaluating and paying benefits claims creates the kind of conflict of interest referred to in Firestone Tire & Rubber v. Bruch, 489 US 101 (1989), and (2) the 6th Circuit properly weighed the conflict of interest as one of several factors in deciding to set aside the administrator's discretionary decision.

Employee in ADA case produced sufficient evidence that he was substantially limited in major life activitie

Gribben v. UPS (9th Cir 06/16/2008)

http://caselaw.lp.findlaw.com/data2/circs/9th/0615964p.pdf

Gribben sued the employer, asserting disability discrimination and retaliation claims under the Americans with Disabilities Act (ADA).  The trial court granted summary judgment in favor of the employer on the disability discrimination claim, and the employer prevailed after a jury trial on the retaliation claim.  The 9th Circuit affirmed as to the retaliation claim and reversed as to the disability discrimination claim.  With respect to reversal, the court reasoned that Gribben produced sufficient evidence that he was substantially limited in several major life activities.

Receipt of "no match" letter from Social Security Administration didn't constitute knowledge that employees were undocumented

Aramark v. Service Employees (9th Cir 07/16/2008)

http://caselaw.lp.findlaw.com/data2/circs/9th/0656662p.pdf

The employer received a "no match" letter from the Social Security Administration (SSA), indicating that the employer had reported information on some of its employees that did not match the SSA's records.  The employer gave the affected employees three days to correct the mismatches.  When the employees failed to comply, they were discharged.   At grievance arbitration, an arbitrator concluded that the employees were discharged without just cause under the parties' collective bargaining agreement.  He ordered them reinstated with backpay.  The trial court vacated the arbitration award on the basis that it violated public policy.  The 9th Circuit reversed the trial court and confirmed the arbitration award.

The employer argued that the arbitration award violated the public policy expressed in the Immigration Reform and Control Act of 1986 (IRCA).  Under IRCA, employers are subject to civil and criminal liability if they knowingly employ undocumented workers.  Under IRCA, the "knowing" element can be satisfied by "constructive knowledge."  The court observed that IRCA provided a sufficient public policy basis for vacating an arbitration award, but concluded that receipt of the "no match" letters did not constitute knowledge (or constructive knowledge) that the employees were undocumented.  The court noted that "[a social security number] discrepancy does not automatically mean than an employee is undocumented....In fact, the SSA tells employers that the information it provides them 'does not make any statement about ... immigration status' and 'is not a basis, in and of itself, to take any adverse action against the employee.'"  The court thus concluded that the arbitrator did not err in determining that the employees were discharged without just cause.

Executive Order requires contractors to electronically verify employment eligibility

Executive Order: http://www.whitehouse.gov/news/releases/2008/06/20080609-2.html

DHS press release: http://www.dhs.gov/xnews/releases/pr_1213039922523.shtm

The President on June 6 amended Executive Order 12989 to direct all federal departments and agencies to require contractors, as a condition of each future federal contract, to agree to use an electronic employment eligibility verification system - designated by the Secretary of Homeland Security - to verify the employment eligibility of all persons hired during the contract term and all persons performing work within the United States on the federal contract.

DHS has designated E-Verify as the system of choice to ensure that the federal government only does business with companies that agree to verify the legality of their new hires and further, that the specific employees tapped to perform contract services in the United States for the federal government are authorized to work in this country. Federal departments and agencies within the executive branch are already enrolling with E-Verify to check the status of all new hires within the federal workforce. Agencies responsible for federal acquisition regulations have begun publishing Notices of Proposed Rulemaking in the Federal Register soliciting public comment on proposed changes to these regulations. For examples, see http://www.access.gpo.gov/su_docs/fedreg/a080612c.html Comments will be accepted for 60 days.