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♦       Mar 18,  ..  DcDc:     Pappas v. Police Department, Washington D.C.  ..  Plaintiffs Mr. Pappas, Ms. Lindsay, Ms. Mathies, and Mr. Malik— served as police officers in the Washington DC Metropolitan Police Department (“MPD”).    Each Plaintiff alleges that he or she was involuntarily retired from MPD pursuant to the department’s involuntary disability retirement policy.    Under MPD’s policy, police officers “who cannot resume full- duty status after 172 cumulative workdays over any 24-month period as a result of any disability” are involuntarily disability retired.    MPD does not offer the “possibility of reassignment, job restructuring, or extended leave” as an alternative to involuntary disability retirement.    The disability retirement process works as follows:    First, a police clinic staffed by doctors monitors MPD officers with injuries or illnesses on behalf of the department to determine whether those officers are able to serve in a full-duty capacity;    Second, after an officer has accumulated 172 days of less than full duty service in a 24-month period, the clinic refers the officer to MPD’s retirement board;    Third the retirement board holds a hearing—at which a physician testifies and explains why the officer is not able to return to full-duty work—and the board makes a final determination on whether to retire the officer and what benefits the officer may receive.    At no point during this process does DC assess whether an officer is eligible to be reassigned as a reasonable accommodation for his or her disability in lieu of involuntary disability retirement.    Plaintiffs contend that their retirements from MPD were involuntary and that they would have preferred to keep working with a reasonable accommodation for their disabilities, had that been an option.    Accordingly, Plaintiffs contend that MPD’s involuntary disability retirement policy violates the Americans with Disabilities Act (“ADA”).    Here, Plaintiffs—on their own behalf and on behalf of a proposed class of similarly situated individuals—sue the District of Columbia for violating the Americans with Disabilities Act.  ..  COURT DECISION:   (.html)

♦       Mar 18,  ..  OSC:     Disciplinary Counsel v. Bell  ..  Attorney Mr. Bell, of Warren, Ohio, was admitted to the practice of law in Ohio in 2016.    Bell was hired by the Cuyahoga County, Ohio Prosecutor’s Office in February 2020.    He served as an assistant prosecutor assigned to the child-support unit of the juvenile division.    While at work on July 30, 2021, Bell visited a website on his personal phone that listed profiles of sex workers.    At 10:27 a.m. that day, Bell sent a text message to a phone number that he had obtained from a profile on that website.    He believed that he was texting a female sex worker, but he was actually texting an undercover officer with the Mahoning Valley Human Trafficking Task Force.    In the course of that text-message exchange, the undercover officer asked Bell his age and race and told Bell,    “I’m alot younger than you.”    Bell responded with texts asking, “How young[?]” and added, “If I’m too old I understand.”    The undercover officer replied, “I'm 15,” to which Bell responded, “You’re a little too young.”    When the undercover officer protested,    Bell responded, “15 isn’t even legal.”    Bell also stated, “I don’t want to be a jerk but when someone that young is involved in this kinda thing I worry they are being forced against their will.”    The undercover officer replied, “Hell no.”    At that point, Bell responded, “Okay[.] You sure you aren’t looking for someone closer to your age[?]”    Then he asked, “How much[?]”    The undercover officer responded, “[D]epends [on] wat u want daddy.” (Spelling sic.) Bell requested an hour of “[h]alf and half,” and when prompted by the undercover officer, Bell explained that that meant “Bj and sex.”    The undercover officer quoted a price of $80 and asked, “Cool? Time?”    Bell replied, “Yeah. Depends where are you?”    The undercover officer told him, “Canfield.”    Bell responded, “Hmm wouldn’t likely be able to get there till after 6.”    The undercover officer replied,    “That’s cool jus hit me up around then then.”    Although Bell continued texting the undercover officer after he left work, he did not follow through with the meeting.    On August 5, 2021, the undercover officer text-messaged Bell again and sent him a photo of a clothed female.    Bell replied with a photo of himself with his dog.    Bell told the undercover officer that since she was 15, she was too young for him to do anything with “besides talk.”    The conversation ended without any plans to meet.    That was the last conversation between Bell and the undercover officer.    On August 20, 2021, Bell was arrested at his office in the juvenile division of the Cuyahoga County Prosecutor’s Office and was simultaneously terminated from his employment.    In November 2021, Bell was indicted on one count of importuning in violation of R.C. 2907.07(D)(2), a fifth-degree felony.    He pleaded guilty to an amended count of unlawful use of a telecommunication device in violation of R.C. 2913.06(A), also a fifth-degree felony.    ... CONTINUED  ..  COURT DECISION:   (.html)

♦       Mar 18,  ..  3rd Cir.:     Gardner v. Ulta Inc  ..  Ms. Gardner began working as a Prestige Sales Manager at Ulta Salon Cosmetics and Fragrance Inc’s Newton Square, Pennsylvania store when she was fifty-three years old.    In February 2020, Gardner, age fifty-seven, signed a statement admitting to distributing to herself and others complimentary products from brand partners known as “gratis.”    The statement acknowledges that doing so violated Ulta’s policy permitting only the General Manager, or an authorized employee, to distribute gratis to employees.    Gardner disputes that policy and says Ulta employees had a practice of distributing gratis without approval.    On February 12, 2020, Gardner requested a leave of absence to begin on March 1, 2020, citing depression and anxiety.    Ulta terminated Gardner’s employment six days later following an investigation relating to the distributed gratis.    A younger, non-disabled employee Vanessa Jones received a final written warning and was not terminated for violating the gratis policy by accepting gratis from Gardner.    Jones did not know that her conduct violated the policy because she did not know that Gardner was not authorized to distribute gratis.    Ms. Gardner claims that her employer Ulta Salon Cosmetics and Fragrance Inc (“Ulta”) terminated her due to her disability and age.  ..  COURT DECISION:   (.html)


♦       Mar 15,  .. FLRA:  Army Picatinny Arsenal v. Firefighter Union  ..  The Army, U.S. Army Garrison, Picatinny Arsenal, New Jersey operates a fire department that comprised two fire stations.     On September 28, 2021, the Agency notified the Union that it planned to close one of the stations—station two.    The Agency closed station two on October 12 and reduced the fire department’s per-shift staffing level from twelve to nine positions.     In a November 8 grievance, the Union alleged the Agency “failed to properly staff” the fire department on “October 12-17, 20-31, November 1-3, and on a continuing occurrence” (the alleged improper-staffing events).    The Union asserted the staffing reduction violated the parties’ collective‑bargaining agreement and various guidelines, instructions, standards, and regulations.    At arbitration, the Agency alleged the Union failed to timely file the grievance.    However, the Arbitrator issued an arbitrability award reflecting that the grievance arose from the alleged improper-staffing events and was “continuing . . . such that each day that passed created a new timeline for filing.”    Here, The Army requests reconsideration.  ..  FLRA DECISION:   (.html)   (.pdf)

♦       Mar 15,  ..  DcDc:     Garcia v. District of Columbia  ..  Plaintiff Mr. Garcia, a Hispanic male, alleges that Defendant District of Columbia (“District of Columbia” or “District”) terminated his employment as a District of Columbia Metropolitan Police Department (“MPD”) officer after taking a promotional exam because of racial animus against Hispanic officers.    The Underlying Offense Giving Rise to Plaintiff’s Termination Plaintiff Mr. Garcia is an Afro-Latino male who was an MPD officer.    In September 2017, he sat for the MPD Seargant’s promotional exam alongside approximately 800 officers.    He was seated at a table with one other officer, who was white, approximately four to six feet away.    Halfway through the exam, one of the proctors tapped Mr. Garcia and the other officer on the shoulder and told them to split apart.    Plaintiff was disrupted and distracted, but quickly complied and returned to work on the exam.    Approximately ten minutes later, the proctor returned and told Mr. Garcia to move his seat to a table by himself.    Plaintiff’s concentration was badly destabilized, but he finished the exam nevertheless.    Afterwards, the proctor emailed the testing vendor and asked them to look up Mr. Garcia’s results, but not those of the officer next to him.    The testing vendor provided the proctor Mr. Garcia’s test on or about September 30, 2017 and concluded that Plaintiff had been cheating off the other officer.    On or about October 12, 2017, Mr. Garcia was notified that the MPD’s Internal Affairs Division (“IAD”) was going to recommend him for termination.    Plaintiff received an arbitration decision upholding MPD’s decision to terminate him.    Plaintiff’s Allegations of Discrimination:    Plaintiff asserted that he was targeted for scrutiny during the exam and treated disparately because he was Hispanic, and that other officers who were previously suspected of cheating were not recommended for termination.    Plaintiff alleges that MPD has a history of giving excessive disciplinary discretion to white managers and leaders and allowing them to use that discretion to harm minorities, especially Hispanic officers.  ..  COURT DECISION:   (.html)

♦       Mar 15,  ..  NYCA:     Syeed v. Bloomberg  ..  Plaintiff Ms. Syeed, a South Asian-American woman, filed this suit against defendant Bloomberg L.P., asserting employment discrimination claims.    She alleges that, in 2014, she began working for defendant, a privately held company with global headquarters in New York City.    Defendant operates Bloomberg Media, a news organization that employs reporters, editors, and producers throughout the world.    Plaintiff’s complaint alleged that she was subjected to discrimination on account of her sex and race while working as a reporter in defendant’s Washington, D.C. bureau.    In 2018, after plaintiff concluded that she could no longer advance her career in the Washington, D.C. bureau, she “applied for various positions” at defendant’s New York bureau, including “the New Economy Forum Editor position.”    In addition, plaintiff “affirmed her interest” to her Washington, D.C. team leader concerning an open United Nations (U.N.) reporter position that was based in New York, and subsequently “inquired multiple times” about that job.    The U.N. vacancy ultimately was filled by a man who allegedly had less practical experience than plaintiff and less formal education.    After her managing editor in Washington, D.C. told plaintiff that defendant decided not to convert the U.N. job to a “ ‘diversity slot,’ ” she understood that she would only be considered for promotions to positions identified as such.    In June 2018, claiming that she was constructively discharged, plaintiff informed her team leader and managing editor that she could no longer work for defendant because of the discrimination that she had encountered and left defendant’s employ.    Two years later, plaintiff, then a California resident, commenced this class action in New York State court.    She asserted, among other causes of action, individual claims under the State and City Human Rights Laws.    Plaintiff maintained that defendant discriminated against her on the basis of sex and race by denying her promotions.  ..  COURT DECISION:   (.html)


♦       Mar 13,  ..  2nd Cir.:     Clark v. the City of Albany  ..  Mr. Clark has been an employee of Defendant-Appellee Albany Fire Department (“AFD”) since 1993, serving as a firefighter until his promotion to lieutenant in 2005 and then as a lieutenant until he was promoted to captain in 2010.     In 2019, Clark was offered a provisional promotion to battalion chief, the third highest-ranking position at the Albany Fire Department (AFD), that was to take effect after a swearing-in ceremony.     Shortly before the ceremony, Clark was drinking, while off duty, and became so intoxicated that first responders found him “incoherent with his pants down around his ankles” and with feces on him. The AFD subsequently rescinded Clark’s promotion offer.     Based on our independent review of the record, we conclude that Mr. Clark established a prima facie case of race discrimination.     First, Clark, as an African-American employee, is a member of a protected class.     Second, Clark met his “minimal” burden of presenting evidence that he “possesses the basic skills necessary for performance of the” battalion chief position.     Third, the recission of Clark’s promotion offer constitutes an adverse employment action. Consistent with our precedent that “[i]n addition to terminations of employment and demotions, failure to promote . . . may also qualify as [an] adverse action[],”     Clark produced evidence from which a reasonable jury could find that his base pay and benefits would have been greater as battalion chief than as captain.     Finally, Clark’s allegation that he was “replaced . . . with an individual outside [his] protected class” is sufficient to raise an inference of discrimination at the initial prima facie stage.     The Question.     Has the AFD, articulated a legitimate, non-discriminatory rationale for rescinding Clark’s promotion offer ?  ..  COURT DECISION:   (.html)

♦       Mar 13,  ..  2nd Cir.:     Reynolds v. City of New York  ..  In 2004, Mr. Reynolds began working at the City of New York City’s Department of Environmental Protection (“DEP”) as a sewage treatment worker.    In early 2020, Reynolds alerted his supervisors to apparent workplace misconduct and illegal activity.    Reynolds’s Amended Complaint references a few instances of such misconduct including that “many of the employees . . . would consume alcohol and attend work while in a state of intoxication, thereby impeding their ability to adequately perform their job, which is an essential function to maintain public health.”    Reynolds’s also alleges that he reported “drug dealing, fraudulent signing of paperwork concerning chemical deliveries, and theft of PPE supplies” at the DEP).    Reynolds claims that as a result of his reports to supervisors, he became “the victim of a concerted retaliatory attack by supervisors and coworkers who were aware that he had blown the whistle.”    The alleged retaliation included being transferred to the day shift after he had worked the night shift for seventeen years, which caused a significant reduction in his available overtime hours.    He contends that he was also subjected to workplace hostility, threats, and false accusations of wrongdoing.    Reynolds alleges that in one particular incident, he was assaulted by a coworker in retaliation for his reports and required medical treatment for his injuries.    Reynolds further claims that various false accusations were leveled against him, including that he was late to work and that he threatened and insulted coworkers using profane language on various occasions.    By 2021, Reynolds had been charged with over a dozen acts of workplace misconduct.    Reynolds claims that these accusations were a “contrived” basis for terminating him.    In the summer of 2021, the City commenced an Office of Administrative Trials and Hearings (“OATH”) hearing regarding these disciplinary charges.    At the close of the OATH hearing, the Administrative Law Judge issued a report recommending termination of Reynolds’s employment because of his “uncivil, insubordinate, and threatening behavior.”    The DEP Commissioner adopted the recommendation and ordered Reynolds to be terminated in November 2021,    and Reynolds commenced the underlying civil action in March 2022.  ..  COURT DECISION:   (.html)

♦       Mar 13,  ..  7th Cir.:     John Brooks v. City of Pekin  ..  Police Officer Simmons began working for the Pekin, Illinois Police Department around 1995.    In December 2016, then-Lieutenant Greg Burris asked him about his sex life and stated that the woman Simmons was dating had “brain damage.”    Simmons reported Burris’s comment to Deputy Chief Donald Baxter, and Burris consequently received a two-day suspension.    In April 2017, Burris asked Simmons if he was “fucking that Iraqi,” and Simmons reported the comment to the Chief of Police, John Dossey.    Burris was then placed on leave, and later that month, he accepted a last chance agreement with a permanent demotion to patrol and a 21-day suspension.    On May 24, Police Officer Jennifer Melton reported to Deputy Chief Donald Baxter, that Police Officer Simmons had made inappropriate comments about her breasts.    Officer Melton alleged that Simmons commented on her breasts in front of her husband on March 3, and that on March 25, he made a similar comment to a civilian at a local restaurant.    On June 5, Officer Melton met with the HR Director, Sarah Newcomb, and expressed a fear of retaliation from Brooks for reporting Simmons because Brooks and Simmons were friends.    The next day, June 6, Simmons received a notice of interrogation regarding his comments to Melton, which noted that he must avoid discussing the investigation with any other officer.    But later that day, he called Deputy Chief Baxter to discuss the investigation.    The same day, Dossey placed Simmons on paid administrative leave.    During an interrogation on June 19, Simmons denied speaking with Brooks about the investigation, despite their conversation on June 6.    Dossey changed Simmons’s administrative leave status to unpaid leave on July 21,    and he filed a Fire and Police Commission (FPC) complaint against Simmons on August 23.    On October 25, 2017, the City discovered that Officer Simmons had secretly recorded a January 2017 shift brief related to an incident where an officer struck a minor    and then sent a copy of the recording to the minor’s attorney.    During an interrogation on February 16, 2018, Simmons admitted that he had secretly recorded the shift brief without permission in violation of department policy.    On February 19, an amended FPC complaint was filed against Simmons to add allegations of his improper recordings.    The FPC held an evidentiary hearing on February 21, and Simmons chose not to appear. On March 13, the FPC issued its decision ordering Simmons’s termination.    Simmons sued the City alleging that it retaliated against him because he reported the alleged sexual harassment he experienced.  ..  COURT DECISION:   (.html)


♦       Mar 11,  ..  3rd Cir.:     Wharton v. Superintendent Graterford SCI  ..  NOTE: Prior to the following events, Robert Wharton and Eric Mason performed construction work at the home of Bradley Hart and Ferne Hart in Philadelphia, Pennsylvania.    After the work was completed, the Hart's refused to pay because the construction work was substandard and unacceptable.    Afterwards, for over six months, Robert Wharton and Eric Mason terrorized the Harts, burglarizing their home twice.    During the second burglary, they vandalized the home so severely that it was temporarily uninhabitable.    As they ransacked the house, Wharton and Mason urinated and defecated on the floor, slashed furniture, defaced family pictures, wrote a threatening note on the wall, and left a doll hanging with a rope tied around its neck.    They also burglarized a church founded by Bradley’s father, stabbing a photo of Bradley to the wall with a letter opener.    In January 1984, Robert Wharton and Eric Mason forced their way into Bradley Hart and Ferne Hart’s home at knifepoint while the Harts were home with their infant daughter, Lisa.    They forced Bradley to write them a check (to pay for the unpaid substandard construction work) and then tied up the couple.    After watching television for several hours, Wharton and Mason decided to murder the couple to avoid being identified.    Wharton covered Ferne’s eyes and mouth with duct tape before strangling her with a necktie and forcing her head underwater in a bathtub until she drowned.    Mason placed his foot on Bradley’s back as he strangled him with an electrical cord and pressed his face into a shallow pan of water. Both men stole silverware, jewelry, cameras, wallets, and even Lisa’s crib.    They also turned off the heat and left Lisa alone in the house in the dead of winter.    Bradley’s father discovered the gruesome scene three days later.    Although Lisa was severely dehydrated and suffered respiratory arrest on the way to the hospital, she survived.    Wharton was arrested about one week later and confessed.    At trial, the jury heard that Wharton was “very kind,” and a “good human,” as well as “loving” and “very protective” of his mother and sister.    Testimony from the defense witnesses contained frequent references to religion, forgiveness, and the value of life.    Some of Wharton’s family members asked the jury to spare his life for the sake of his family.    In total, the Philadelphia jury deliberated for a little under thirteen hours spread across three days before deciding that Wharton deserved the death penalty.    Here Robert Wharton is appealing his death sentence.  ..  COURT DECISION:   (.html)

♦       Mar 11,  ..  NJSC,AD:     Dasher v. United Airlines  ..  Plaintiff, Mr. Dasher, who is Black, maintained a sexual relationship with R.D., his subordinate, without reporting the relationship to United as required by United's Code of Ethics and Business Conduct (Code of Ethics).    When questioned about the relationship, he prevaricated, in contravention of United's Working Together Guidelines (WTG).    After United obtained definitive proof of the relationship, including sexually explicit text messages and videos between plaintiff and R.D.,   he prevaricated again during United's investigation of R. D.'s allegations.    Later, while internally appealing the decision to terminate him,   plaintiff admitted in writing he acted inappropriately and United had a valid basis for his termination.    Plaintiff, alleges United's justification for his termination was a pretext for race discrimination because non-minority supervisors who maintained sexual relationships with subordinates were not terminated,   but he failed to offer any evidence to support that allegation.    ... CONTINUED     ..  COURT DECISION:   (.html)

♦       Mar 11,  .. FLRA:  Agriculture v. NTEU  ..  The Department of Agriculture (Agency) posted notices of detail opportunities for employees.      The notices stated the details were “not expected to exceed 120 days.”    After employees applied, the Agency made selections and notified the selectees the details were “not to exceed 120 days.”    Shortly before the end of the 120-day detail period, the Agency informed several of the employees that it was extending their details for an additional 120 days.    The Agency did not post notices of the extensions, solicit volunteers, assess any applicants, or notify the Union of the extensions.     The NTEU Union filed a grievance, which went to arbitration.  ..  FLRA DECISION:   (.html)   (.pdf)


♦       Mar 08,  ..  3rd Cir.:     Glover v. United States Postal Service  ..  Mr. Glover was hired by the United States Postal Service to a non-career postal carrier position as a City Carrier Assistant (“CCA”), which involved working different schedules and routes as needed.    As discussed below, he believed that other CCAs were receiving preferential treatment based on race and national origin.    When Glover was reassigned to a new station, he refused to come to work.    In a letter dated October 14, 2016, he stated that he was “refusing to follow orders to be reassigned and work at Point Breeze Station because of discriminatory practices by Area Manager, Station Manager and zone 3 supervisor.”    Because Glover refused to report to work or attend predisciplinary interviews, United States Postal Service terminated his employment.    Glover filed an employment discrimination complaint in the District Court alleging that United States Postal Service took adverse actions against him based on race, color, religion, gender, and national origin, retaliated against him, and failed to accommodate his religious beliefs and his disability of attention deficit hyperactivity disorder (ADHD).  ..  COURT DECISION:   (.html)

♦       Mar 08,  ..  CCP:     City of Pittsburgh, PA v. The Federation Of Police Union (FOP)  ..  On June 19, 2021, a group of Pittsburgh, PA Bureau police officers held a cookout at the end of their shift, at which alcohol was served.    Several of the officers, including Mr. Fetty and Ms. Coworker, then drove to a bar.    Ms. Coworker became intoxicated while at the bar, and Mr. Fetty drove Coworker home.    On June 28, 2021, Pittsburgh’s Office of Municipal Investigations (OMI) received an anonymous complaint, alleging Fetty committed indecent assault against Coworker after driving her home on June 19, 2021.    The Office of Municipal Investigations (OMI) launched an investigation, as did the Allegheny County Police Department, but Fetty was not charged with a crime.    The City issued Disciplinary Action Report 21-088 against Fetty, dated September 22, 2021.    The Allegheny County Police Department reopened its investigation but, once again, Fetty was not charged with a crime.    The City of Pittsburgh terminated Fetty’s employment for Committing The Act Of Sexual Assault” against a fellow officer.    The Federation Of Police union (FOP) filed a grievance.    The Panel directed the City of Pittsburgh to reinstate Fetty.    The City now appeals to this Court.  ..  COURT DECISION:   (.html)

♦       Mar 08,  ..  CCP:     Collier Twp. Police Assoc. v. Collier Twp  ..  On November 30, 2021, Officer David Brown, a longtime Collier Township, Pennsylvania Police officer on active duty, died while off-duty.    Township’s officers to provide ceremonial honors at Officer Brown’s funeral.    The Police Chief intended for every Township officer to participate in Casket Duty, rotating the officers in at 15-minute intervals.    At that time, the Department had a COVID-19 masking policy in effect that required officers who were not fully vaccinated to wear a mask at all times while in uniform or while working as an officer.    There were four officers in the Department who were not vaccinated, including Officer Spencer.    On December 2, 2021, the Chief sent an e-mail to the entire Department explaining the plan for the viewing and instructing that “all officers are expected to attend the viewing and the funeral.    On December 3, 2021, Sergeant Lamb had a conversation with several officers, including Officer Spencer, indicating that the Chief had purchased plain black surgical masks for the unvaccinated officers to wear for the viewing and funeral.    Officer Spencer reacted with disbelief, exclaiming, “Are you fucking kidding me?”    then stating “I’m not doing it.    This is ridiculous.”    Ultimately, Officer Spencer did not attend the 2:00 p.m. viewing with the other officers,    but he did attend the 6:00 p.m. viewing in civilian clothes and without a mask.    Officer Spencer attended the funeral, and wore a mask for most of the service, but removed it toward the end and did not wear a mask during the graveside portion of the funeral.    The Chief considered Officer Spencer’s actions to be insubordinate and directed Sergeants Lamb and Ferrance to investigate Officer Spencer’s failure to participate in the viewing and services as directed by him.    On December 9, 2021, the Sergeants interviewed Officer Spencer and issued a report to the Chief.    On December 16, 2021, a Disciplinary Action Report (DAR) was issued recommending to the Township’s Board of Supervisors (Board) that Officer Spencer’s employment be terminated based on his deliberate and intentional disobedience of the Chief’s directives regarding participation in the viewing and funeral services.    Collier Township Police Association (Union) appeals Officer Spencer's termination.  ..  COURT DECISION:   (.html)


♦       Mar 07,  ..  TWCAB:     Dickerson v. Dominion Development Group  ..  Mr. Dickerson (the employee), a superintendent at a construction site, was in a motor vehicle accident after taking another worker to pick up his vehicle following some repairs.     The employee sought workers’ compensation benefits for alleged injuries to his neck, back, left leg, and left foot.     The employer denied the claim, and, after an expedited hearing, the trial court determined the employee failed to show he was likely to prevail at trial.     The employee appealed, and we affirmed the trial court’s order.     Subsequently, the employer filed a motion for summary judgment, arguing that the employee gave insufficient notice of an alleged work accident and that the injury did not arise primarily out of or in the course and scope of the employment.     The employer also argued the employee did not have the necessary medical proof to show his alleged injuries were primarily caused by the motor vehicle accident.     Mr. Dickerson appealed.  ..  COURT DECISION:   (.html)

♦       Mar 07,  ..  6th Cir.:     Cole v. Quality Carriers  ..  In September 2018, Mr. Cole began working as a driver at Quality Carrier’s Fort Worth terminal.     In February 2019, he was transferred to Quality Carriers’ Bossier City terminal because of overstaffing in Fort Worth.     Cole alleges that he was one of five drivers chosen for the schedule of a “pre-loader,” which is a local driver who returns to his home base at the end of every shift.     In June 2019, Cole alleges he spoke to his terminal manager, John Beasley, to request a transfer to a different driving schedule because he was not making enough money under the pre-loader schedule.     Beasley allegedly asked him to remain on the pre-loader schedule because “he was dependable and always on time” and that a pay raise was imminent for pre-loaders.     Two weeks later, however, Cole alleges that Beasley removed him from the position because he was “always late” and replaced Cole, a black man, with a white driver.     Shortly after, Cole filed a complaint with human resources, claiming his removal from the pre-loader schedule and replacement with a white driver was discriminatory.     The Director of Human Resources investigated, determined that Cole was late on at least one occasion, but the records were inconclusive regarding his timeliness on other occasions at issue, so Cole was reinstated as a pre-loader in July 2019.     Cole was terminated in May 2020.     He timely appealed.  ..  COURT DECISION:   (.html)

♦       Mar 07,  ..  MSJC:     Fallon Community Health Plan, Inc. v. Acting Director of the Department of Unemployment Assistance  .. 
       Overview of the unemployment compensation system.
General Laws c. 151A, the unemployment insurance law, was enacted "to provide temporary relief for those who are realistically compelled to leave work through no fault of their own, whatever the source of the compulsion, personal or employer-initiated".    The law sets out conditions under which individuals whose employment has been terminated may be eligible for and receive unemployment benefits.    In enacting c. 151A, "the Legislature recognized that job layoffs can occur for countless reasons unrelated to the individual worker's willingness and desire to stay at his job."    When that occurs, the aim of the law is "to lighten the burden . . . on the unemployed worker and his family."
       In October 2021, Fallon Community Health Plan, Inc. (Fallon), adopted a policy requiring its employees to be vaccinated against COVID-19.    Ms. Jefferson, a home health aide employed by Fallon, sought a religious exemption from the vaccination requirement, but her request was denied, and her employment was terminated.    Jefferson applied for and eventually was approved to receive unemployment benefits from the Department of Unemployment Assistance (department);    Here, Fallon contends that Jefferson was ineligible for the benefits, and seeks review of the decision.  ..  COURT DECISION:   (.html)


♦       Mar 06,  ..  CCP:     Faulkner v. Ann's Choice, Inc  ..  On August 24, 2020, Ms. Faulkner (Claimant) sustained a low back strain or tear in the course of her employment with Employer, Ann's Choice, Inc.     On September 4, 2020, Ann's Choice (Employer)filed a Medical-Only Notice of Temporary Compensation Payable (NTCP) acknowledging medical liability for the injury.     On November 24, 2020, the medical-only NTCP converted to a medical-only Notice of Compensation Payable (NCP).     On June 17, 2021, Employer filed the Termination Petition, therein alleging that Claimant had fully recovered from the work injury as of May 27, 2021.     Claimant filed an Answer to the Termination Petition.     On July 18, 2021, Claimant filed the Claim Petition, therein alleging that she sustained a lower back sprain/strain, and an aggravation of her degenerative disc disease of the lumbosacral spine as a result of the August 24, 2020 injury, and that the injury caused her to stop working on June 22, 2021.     Employer filed a timely Answer to the Claim Petition.     The WCJ held hearings on July 22 and October 28, 2021, and March 21, 2022.     On July 25, 2022, the WCJ denied Claimant’s Claim Petition and granted Employer’s Termination Petition.     Claimant appealed.     CONTINUED  ..  COURT DECISION:   (.html)

♦       Mar 06,  ..  Fed Cir.:     Lewis v. Bop  ..  Ms. Lewis worked as a Corrections Officer for the U.S. Bureau of Prisons (BOP).     On April 6, 2022, BOP prepared a termination letter to Ms. Lewis providing “notice that Ms. Lewis will be removed during probation from her position of Correctional Officer” as of the end of the day on April 6, 2022.     The letter explained that “this action is being taken based one charge — “Appearance of an Inappropriate Relationship with an Inmate” —   and described two instances wherein Ms. Lewis purportedly allowed an inmate to enter the officer’s station with her while “the lights were off”   on March 4, 2022,   and March 5, 2022.     Although Ms. Lewis contended at arbitration that these allegations were false, the termination letter states that Ms. Lewis had admitted these events occurred and that they “support[] someone else’s perception of an inappropriate relationship.”     BOP “attempted to inform Ms. Lewis of their decision to terminate her.” First, on April 5, 2022, BOP directed Ms. Lewis to report to the facility the next day, which a BOP witness testified was for Ms. Lewis “to receive the termination letter.”     But “Ms. Lewis failed to report as instructed, alleging illness.”     The record contains a note from a nurse practitioner stating that Ms. Lewis was seen at a clinic at 3:15 pm on April 5, 2022—the day she received her instruction to report to the institution.     The note requested that Ms. Lewis be excused from work until April 9, 2022—the day after her probationary period would end.     When Ms. Lewis did not report to the facility on April 6, 2022, BOP “mailed a copy of the termination letter to Ms. Lewis’s address of record via USPS Certified Mail and overnight mail via FedEx.”     In addition, on April 8, 2022, the human resources manager called Ms. Lewis and, when Ms. Lewis did not answer, left a voicemail referencing “the removal letter from employment here at FCC Butner.”     On April 20, 2022, the American Federation of Government Employees Local 408 (“the union”) “presented a formal grievance claiming that bargaining unit employee, Sha’Lisa Lewis had been removed from her position without due process required by the Master Agreement, applicable statute, and government regulations.”  ..  COURT DECISION:   (.html)

♦       Mar 06,  .. FLRA:  NTEU v. FDIC  ..  During the COVID-19 pandemic, the Agency assigned all employees to mandatory telework.  Also during this time, the parties agreed to reopen negotiations on several provisions of their collective-bargaining agreement, including Article 20—the telework provision.  As part of the renegotiation, the parties modified Article 20 by expanding a telework program called “the home based option.”     Article 20 states that the Agency will identify positions “for which the work can be performed effectively from a remote location without the need for the employee to regularly report to the assigned office,” and that those positions will be eligible for the home-based option.      Although their official-duty stations would remain unchanged, home‑based employees “will ordinarily perform their work responsibilities at their primary place of residence.”  However, Article 20 also provides that a “manager/supervisor has the right to direct home-based employees to report” to the office “when necessary to meet mission, staffing and workload requirements.”     In August 2022, the Agency sent the memo to all employees, announcing the Agency was requiring all employees to report to their official duty station at least once per pay period.       The Union filed a grievance claiming that, by issuing the memo, the Agency violated Article 20 and repudiated the parties’ agreement in violation of § 7116 of the Statute.     The grievance went to arbitration, where the Arbitrator framed the issues as whether the Agency violated Article 20, or repudiated the parties’ agreement, when it issued the memo.        At arbitration, the parties disputed how frequently—and under what circumstances—Article 20 permitted the Agency to require a home-based employee to report to the office.      In evaluating the parties’ competing interpretations, the Arbitrator found Article 20 “ambiguous.”      The Arbitrator asserted that, as the grieving party, the Union had the “burden to prove its interpretation was the correct interpretation by a preponderance of the evidence.”  ..  FLRA DECISION:   (.html)   (.pdf)


♦       Mar 5,  ..  11th Cir.:     Buckhanon v. Opelika Housing Authority  ..  Ms. Buckhanon, a dark-skinned black woman, worked for Opelika Housing Authority as a Housing Quality Specialist until she was fired. As an HQS inspector, Buckhanon was responsible for inspecting properties, recording failed inspections, and scheduling reinspection.   While employed, Buckhanon was supervised by Julia Dowell, a light-skinned black woman. Dowell in turn reported directly to Matthew McClammey, a light-skinned black man.     While she received positive reviews at first, Buckhanon’s work later declined. Buckhanon was repeatedly late on completing inspections and reinspections. In Buckhanon’s view, McClammey and Dowell failed to provide proper instruction on how to use the new inspection software system. When she requested additional training on the program, Dowell provided her with an online option. But Buckhanon still struggled to use the new program and continued her poor record on completing inspections and reinspections in a timely manner. In response, McClammey decided that Buckhanon could no longer perform inspections.     Buckhanon filed an EEOC Charge of Discrimination against Opelika. She alleged in that Charge that she was being excessively criticized and set up to fail at work, in part because of her skin color. EEOC later closed this Charge and sent her a Notice of Right to Sue letter. Two months later, McClammey fired Buckhanon.     Ms. Buckhanon brought a color-based discrimination suit, alleging that Opelika discriminated against her based on the color of her skin. After discovery, Opelika moved for summary judgment. The district court granted the motion for summary judgment.     Ms. Buckhanon appeals  ..  COURT DECISION:   (.html)

♦       Mar 5,  ..  Fed Cir.:     Tippins v. United States  ..  Plaintiffs Tonia Tippins, Derrik Magnuson, George Holloway, Jennifer Rehberg, Glenda Smithleeth, and M. Allen Bumgardner are Coast Guard veterans who each honorably served twenty years or more and reached senior enlisted ranks.     Between 2012 and 2014, the Coast Guard selected plaintiffs for involuntary retirement through CRSPs created as part of a program for clearing spots to make room for the promotion of less senior service members.     The CRSPs were first authorized in 2010, when the Coast Guard became concerned about high retention among retirement-eligible enlisted personnel and the resulting lack of advancement opportunities for high-performing junior enlisted personnel.     To address the perceived “‘workforce flow’” issue, the Commandant of the Coast Guard sought and received approval from the Secretary of Homeland Security to conduct a CRSP in the fall of 2010 to select service members for involuntary retirement.     Between 2010 and 2014 the Coast Guard received approval for, and conducted, five separate CRSPs, one each year.     As the case is presented to us, plaintiffs’ involuntary retirements were lawful if and only if they were part of a “reduction in force” ordered by the Secretary under § 357(j).     In the CRSPs, the Coast Guard involuntarily retired several hundred enlisted members, including the six named plaintiffs.     In 2018, three of the plaintiffs brought this action under the Tucker Act [...].     Several months later, an amended complaint was filed adding three additional named plaintiffs.     Of relevance to this appeal, all six named plaintiffs served in positions at pay grade E-7 or higher at the time of their involuntary separation.     The plaintiffs asserted wrongful-discharge claims and sought constructive service credit, back pay, allowances, and reinstatement to active duty pursuant to the Military Pay Act [...].     In July 2021, the Claims Court granted the plaintiffs’ motion for summary judgment and denied the government’s cross-motion for summary judgment.     Here, the Government apples the Claims Court.  ..  COURT DECISION:   (.html)

♦       Mar 5,  .. FLRA:  ACT v. Army Nat Grd  ..  The National Guard Agency employs dual-status technicians, who are required to maintain membership in the National Guard as a condition of continued civilian employment.  Under 32 U.S.C. § 709(f)(1)(A) (Section 709(f)(1)(A)), technicians who have lost military membership in the National Guard “shall be promptly separated from military technician (dual status) employment by the adjutant general of the jurisdiction concerned.”     The National Guard Bureau (bureau) is a joint bureau of the Department of the Army and the Department of the Air Force, and acts as a liaison between those departments and the states’ national guards.  The bureau issues regulations pertaining to technicians’ conditions of employment.      On July 22, 2020, the Agency notified the Union that the bureau had recently updated its regulations.  The Agency solicited comments and proposals from the Union related to impact and implementation bargaining over the updated regulations.  The Agency requested a response by August 21, 2020, but the Union did not respond.     In April 2021, the Agency issued a thirty-day notice of termination to a technician who had lost military membership but had a disability-retirement claim pending OPM adjudication.     After the technician informed the Union of his proposed removal, the Union contacted the Agency regarding the policy of retaining technicians with pending disability-retirement claims.     The Agency informed the Union that it was complying with 2020 TPR 715, under which the Agency would promptly separate technicians who lost military membership without exception for pending disability claims.     The Union filed a grievance challenging the Agency’s separation of the technician.   ..  FLRA DECISION:   (.html)   (.pdf)



♦       Mar 4,  .. FLRA:  Homeland v. NTEU  ..  This case concerns Customs Officers who are regularly scheduled to perform nightwork,    and    two statutes that authorize premium pay for such nightwork:     the Federal Employees Pay Act (FEPA)     and    the Customs Officer Pay Reform Act (COPRA).    In an award, Arbitrator James W. Mastriani determined the Agency erroneously applied a FEPA premium-pay limitation called the “eight-hour rule” to COPRA nightwork premiums for parental and emergency leave.     The Arbitrator reasoned that COPRA itself does not include an eight-hour rule, and if “Congress wished to carry the eight-hour rule over from FEPA into COPRA, it would have explicitly done so.”    In addition, the Arbitrator determined the Agency’s misapplication of the eight-hour rule resulted in employees receiving less than the “full amount of paid leave, charged at the COPRA night work rate,” to which they were “entitled.”     As remedies, the Arbitrator directed the Agency to “cease and desist” from applying the eight-hour rule to COPRA night work premium pay for parental and emergency leave, and to make any affected employees whole by paying them the premium rate they would have received had the Agency not applied that rule.    However, the Arbitrator rejected the Union’s unfair-labor‑practice (ULP) claims alleging the Agency’s failure to pay COPRA nightwork premiums violated the 1995 award and repudiated the settlement agreement.     Both, the Agency and the Union filed exceptions to the award.  ..  FLRA DECISION:   (.html)   (.pdf)

♦       Mar 4,  ..  DcDc:     Greer v. The University of the District of Columbia  ..  Mr. Greer worked as a police officer for the University of the District of Columbia, in Washington, DC.     In that role, his essential duties included “being able to pursue, subdue, and arrest individuals, climb stairs, run, dodge obstacles, drag persons and objects, climb over and under obstacles, perform repetitive motions, and walk long distances.”     He was 57 years old when this dispute arose.     On June 7, 2020, he fractured his toe while on the job.     He entered an emergency room on the same day with pain and swelling and was discharged with instructions to see a foot specialist.     He met with such a doctor four days later and was prescribed a surgical shoe and 6–8 weeks of light duty.     Specifically, Greer was instructed to limit his walking and standing.     Based on these instructions, on June 11, 2020, Plaintiff requested a light-duty assignment from the University.     This request was denied by Cerina Smith, a University police captain, and Greer was told to first submit a worker’s compensation claim, which he filed the following week.     As part of the claims process, he was further examined by three other doctors, and on July 1, the D.C. Office of Risk Management (ORM) notified Greer’s supervisor that he could return to work with some restrictions.     Those restrictions included: sitting 80% of the time, occasionally lifting no more than ten pounds, occasionally pushing or pulling twenty pounds, occasionally standing or walking (up to three 2 hours per day), bearing weight as tolerated, no climbing stairs, and no climbing ladders.     The next day, Smith notified ORM that UDC was unable to accommodate his restrictions because his job required him to “be on patrol and be able to respond to any and all emergencies on . . . campus.”     on November 2, 2020, the University issued a termination notice to Greer, and in December 2020 his employment was officially terminated.     On December 17, 2020, Greer contested the decision by filing a Petition for Appeal.     Greer then filed the instant suit on August 9, 2023.  ..  COURT DECISION:   (.html)

♦       Mar 4,  .. FLRA:  Army Nat Grd v. ACT  ..  The Arizona Army National Guard (The Agency) employs technicians, who are required to maintain membership in the Arizona National Guard as a condition of employment.     Under 32 U.S.C. § 709, technicians who lose military membership “shall be promptly separated from . . . technician (dual[-]status) employment by the adjutant general of the jurisdiction concerned.” Prior to the underlying dispute, the Agency followed Technician Personnel Regulation (TPR) 715, a National Guard Bureau (bureau) regulation, which permitted the Agency to continue to employ technicians who lost military membership, and filed disability-retirement claims, until those claims were processed.     However, the bureau rescinded TPR 715, and the parties engaged in impact-and-implementation bargaining over the rescission.  The parties reached agreement on an August 10, 2021 memorandum, which contained a provision (the provision) that allowed technicians who lose military membership due to medical disability to “request a fourmonth extension (renewable, if required) to accommodate [the Office of Personnel Management (OPM)] disability determination.”     Subsequently, the Agency notified the Union that it was rescinding the provision because it was contrary to 32 U.S.C. § 709.     The Union filed a grievance, alleging the Agency violated the parties’ collective-bargaining agreement (CBA) and § 7116 of the Federal Service Labor-Management Relations Statute (the Statute) by rescinding the provision.      The grievance went to arbitration.      The Arbitrator found 32 U.S.C. § 709 does not define the term “promptly,” so the parties were free to negotiate that term’s meaning.     As such, the Arbitrator concluded that the rescinded provision – allowing technicians to remain employed for four-month, renewable periods pending OPM’s disability-retirement determinations – was not contrary to 32 U.S.C. § 709’s requirement that the Agency “promptly separate” them.     The Arbitrator concluded the Agency violated the Statute and the CBA by rescinding the provision.     The Agency filed exceptions with the Authority, arguing the award was contrary to law.     Specifically, the Agency argued it was permitted to rescind the provision because the provision was contrary to 32 U.S.C. § 709(f)(1)(A).     The Union filed an opposition.   ..  FLRA DECISION:   (.html)   (.pdf)



♦       Mar 01,  ..  DcCa:     Walker v. D.C. Department of Employment Services  ..  Ms. Walker was appointed by Mayor Adrian Fenty in 2010 as Chief Administrative Law Judge for the Office of Administrative Hearings (“OAH”).      In 2012, OAH came under public scrutiny in the media. Concerns were raised about Ms. Walker’s leadership at OAH, as well as about the fact that she had    hired her business partner and friend, Kiyo Oden, to serve as OAH’s general counsel in 2010,    and recommended the company TPM, owned by Lincoln Tyson, Ms. Oden’s then-fiancé, to assist the Department of General Services (“DGS”) with the relocation of OAH’s offices in 2011.      The District’s Office of the Inspector General (“OIG”) and a private law firm retained by OAH launched investigations, as did the D.C. Board of Ethics and Government Accountability (“BEGA”).      On Feb. 6, 2014, BEGA issued a Notice of Violation to Ms. Walker, charging her with nineteen violations of specific D.C. ethics statutes and regulations in relation to Ms. Walker’s co-ownership of a business licensed in D.C. and Maryland, MKM Ventures, LLC, with Ms. Oden; her preferential treatment of Mr. Tyson and failure to disclose his relationship to Ms. Oden; her related misrepresentations to BEGA investigators; and her leadership at OAH.      The next day, Mayor Vincent Gray placed Ms. Walker on administrative leave with pay and issued an Advance Written Notice of Intent to Remove.      The Advance Notice identified five “findings of good cause”:   the first incorporated by reference the entirety of the BEGA Notice of Violation and the statutes and regulations BEGA cited;   the second identified violations of Chapter V(D) & (P) 3 of the Code of Ethics for ALJs based on the same constellation of facts described in the BEGA Notice of Violation; and   the last three identified grounds for removal notwithstanding the outcome of BEGA proceedings in relation to Ms. Walker’s failure to disclose her relationship with Ms. Oden to OIG investigators,   her misrepresentation under oath to BEGA that she had not suggested TPM be hired to assist with OAH’s move,   and her inability to resolve conflict at OAH.      Ms. Walker sent the Mayor a twenty-page letter in response on Feb. 20, 2014, responding to these findings and denying any wrongdoing.      On May 19, 2014, while the BEGA investigation continued, Mayor Gray issued a Final Notice terminating Ms. Walker.      Ms. Walker challenges the decision by the Office of Employee Appeals (“OEA”) upholding the Executive Office of the Mayor’s (“EOM”) decision to terminate her employment as Chief Administrative Law Judge for the Office of Administrative Hearings. ... CONTINUED  ..  COURT DECISION:   (.html)

♦       Mar 01,  ..  CAA:     Lorence v. Mayo Clinic  ..  Lorence is a native German and former ASU student. She suffered a stroke in 2013 resulting in speech and language impediments.     She enrolled for undergraduate studies at ASU in 2016 and graduated in May 2019.     From January 2017 until May 2019, Lorence was an intern at the Mathematical Neuro Oncology Laboratory (the “Laboratory”) at the Mayo Clinic Arizona (“Mayo Clinic”).     Dr. Kristin Swanson is a professor at ASU and member of the Laboratory.     Before Lorence presented her honors thesis at a conference during her internship, she was at Swanson’s house where an intoxicated Swanson demanded that she dance to music.     At the conference, Swanson and Yvette Lassiter Morris, another laboratory employee, pressured Lorence to join them in drinking alcohol and going to a night club to see drag and strip shows.     In June 2019, Lorence began full-time employment at the Laboratory.     Several of the employees were Swanson’s friends or their family members, including Lorence’s supervisor Lassiter Morris, Andrea     In June 2020, Lorence filed a formal complaint with the human resources department of the Mayo Clinic, alleging that Swanson, Lassiter Morris, de Leon, and other employees harassed her based on her national origin, sex, and disabilities.     In August 2020, the human resources department placed Lorence on administrative leave pending investigation of her complaints.     Lorence raised concerns that the department’s investigator had a “pre-existing relationship” with Swanson, and that the investigator’s daughter was a visiting student of the lab in summer 2018.     In May 2020, before filing her complaint, Lorence wrote and submitted a grant application to the National Institutes of Health (the “NIH”).     In September 2020 the NIH awarded the grant to “Mayo Clinic Arizona,” but Lorence could not participate in the work related to the grant because she was on administrative leave.     In October 2020, the human resources department informed Lorence the internal investigation revealed no discrimination.     Lorence returned to work at the Laboratory the following month and began grant work.     Swanson informed Lorence that continued reference to the allegations the investigation did not substantiate would be grounds for termination.     And during a meeting, Swanson made a “threatening joke” about being able to fire Lorence at any time.     On January 17, 2021, Lorence resigned her position.     Three months later, on April 2, 2021, Lorence filed a charge of employment discrimination with the Arizona Attorney General’s Office, Civil Rights Division, alleging discrimination based on sex, national origin, and whistleblowing. ... CONTINUED  ..  COURT DECISION:   (.html)


♦       Feb 28,  ..  CCA:     Kern County Hospital Authority v. PERB  ..  Service Employees International Union (SEIU), Local 521, filed with the Public Employment Relations Board (PERB), an unfair practice charge against Kern County Hospital Authority.    The dispute at issue was centered on the scope of the applicable grievance procedure with respect to collective grievances, in light of the parties’ practices and the then-current Memorandum of Understanding negotiated between Kern County Hospital Authority and SEIU Local 521.    PERB’s Office of the General Counsel issued an administrative complaint in relation to the unfair practice charge.    Thereafter, a hearing was held before an administrative law judge (ALJ) on the unfair practice charge and complaint.    The ALJ issued a proposed decision in favor of SEIU Local 521.    Kern County Hospital Authority filed exceptions to the ALJ’s proposed decision, which was duly reviewed in light of those exceptions by PERB.    PERB issued its own decision affirming the ALJ’s proposed decision.    Kern County Hospital Authority thereafter filed in this court.  ..  COURT DECISION:   (.html)

♦       Feb 28,  ..  7th Cir.:     Wells v. Freeman Company  ..  Ms. Wells, an aspiring model, claims that she was hired and then sexually assaulted by Mr. Vaughn, an independent contractor.    Ms. Wells accompanied Mr. Vaughn to work on an out of state media event in Florida.    That night, after checking in to the hotel, she went to dinner with Mr. Vaughn and Lloyd Ellis, an independent contractor working the event.    Ultimately, Ms. Wells and Mr. Vaughn consumed at least seven alcoholic drinks each.    After, Mr. Vaughn followed Ms. Wells to her hotel room.    According to Mr. Vaughn, he did so because Wells wanted him to look at the clothes she brought for the event.    Once in the room, she asked him to take nude photos of her in the bathtub.    He agreed, but once he noticed her falling asleep in the bathtub, he helped her put on clothes and get into bed.    Wells’s account is quite different.    She claims Vaughn asked if she wanted to take updated photos for her modeling portfolio.    She agreed. Vaughn directed her to lay on the bed wearing thong underwear so he could take photos with his iPhone.    Wells claims that Vaughn told her to shave, so she went to the bathtub to do so.    Vaughn followed her into the bathroom, took the razor out of her hand, and began shaving her pubic region.    Then, Vaughn took photos of her vagina and groped her genitals.    Eventually, Vaughn left, and Wells went to bed.    The next morning Vaughn and Wells went to the event site together.    At the end of the workday, Wells, Vaughn, and Ellis returned to the hotel and ate dinner together.    Wells excused herself from dinner, called her family, and left the hotel.    Wells’s attorney sent Freeman a pre-suit letter in April 2020.    Until then, Wells had not told anyone at Freeman what happened in Florida or requested payment or reimbursement. ... CONTINUED  ..  COURT DECISION:   (.html)

♦       Feb 28,  ..  11th Cir.:     Boyan Subotic v. Jabil, Inc  ..  Mr. Subotic, an employee at Jabil, Inc, directly reported to Site IT Manager Romeo Cooper until November 2019.    As Mr. Subotic’s supervisor, Cooper rated Subotic’s performance in 2017 and 2018 as “meets standards.”    But in 2019, Cooper found that Subotic’s performance declined, rating him as only “partially meets standards” and advising Subotic that he needed to “improve his support skills as a Support Technician II.”    In November 2019, Andrew Eells was named IT Supervisor, and Eells became Subotic’s new direct supervisor.    Eells, in turn, reported to Cooper at that time.    Like Cooper, Eells found Subotic’s work as a Tech II to be lacking.    Cooper thought Subotic’s skills were closer to a level-one support technician.    On May 18, 2020, Natasha Holton was promoted to Site IT Manager, replacing Cooper.    Holton’s duties required her to improve the performance of the onsite IT team, including Subotic.    Eells remained Subotic’s direct supervisor, but he now reported to Holton.    Subotic states that he does not believe he was discriminated against on any basis while working at Jabil from 2017 through mid 2020.    At this point, though, Subotic alleges that his supervisors Holton and Eells unfairly disciplined him several times because he was Serbian, and that ultimately led to his unlawful termination.  ..  COURT DECISION:   (.html)


♦       Feb 27,  ..  10th Cir.:     Kincaid v. Unified School District No. 500  ..  During the events relevant to this appeal, Ms Kincaid was an assistant principal at Central Middle School, a school within the District.     Kincaid’s supervisor was Principal Fred Skretta, who began working at Central Middle School in the 2018–19 school year.     Kincaid claims she suffered retaliation for reporting two incidents in early 2019.     In February some girls at the school reported that a male special-education student had hugged them in the hallway, touched their bottoms, and made them uncomfortable.     Kincaid made a note of the incident at the time in an older school database, but not in the school’s new “Infinite Campus” computer system. She did not discipline the male student and told his guardian that no disciplinary record would be entered unless a second incident occurred.     In March another female student reported that the same male student “pushed [her] up against a wall and grinded up against her with his private parts.”     Before letting Skretta know about the incident, Kincaid contacted the office of the District’s Director of Student Services and wrote up the student for sexual assault. She emailed Skretta about the assault later that day.     Kincaid testified that she contacted Student Services before contacting Skretta because he was out of the building and she believed that she was following protocol.     The next day, Kincaid entered information about both the sexual assault and the February incident in the Infinite Campus system.     She also emailed district staff to set up a hearing for the male student and to inform them that he would serve a 10-day suspension;     she did not include Skretta on her initial email but did copy him on the email chain the next business day.     Four days later, Skretta sent Kincaid a “formal letter of concern regarding processes related to Infinite Campus and entry of discipline records.”     He expressed his concern about how Kincaid had handled the February incident, saying that it was an “impropriety” to tell the male student’s guardian that no disciplinary record would be entered unless there was a second incident, and that because the student “has significant special needs, . . . it would have been appropriate to address his behaviors immediately following the first incident with more intensive and sustained consequential behavior support” than was provided.     ...    CONTINUED  ..  COURT DECISION:     (.html)

♦       Feb 23,  ..  CCA:     Medel v. Oceanic Companies  ..  A jury found Ms. Medel was the victim of sexual harassment,   sexual battery,   retaliation for reporting sexual harassment,   and wrongful termination in violation of public policy,   among other causes of action,     during her approximately nine months of employment at Oceanic Companies, Inc., and Oceanic San Diego.     Manoj Chawla, the president and CEO of Oceanic Companies, repeatedly tried to have sexual intercourse, including group sex, with Ms. Medel.     Deepak Chokshi, the regional manager of Oceanic Companies, was also found personally liable for sexually harassing and sexually battering Ms. Medel.     Ms. Medel was terminated after she complained about Chokshi’s sexual battery and retaliation,   and rebuffed Chawla’s sexual advances.         The jury awarded Ms. Medel substantial damages for   past and future lost income   and   past and future noneconomic loss,   as well as punitive damages.     Chawla, Chokshi, and Oceanic moved for [...] a new trial.     Defendants argued [...] that the evidence was insufficient to support the awards for past   and future lost income   and punitive damages.     ... CONTINUED  ..  COURT DECISION:   (.html)

♦       Feb 23,  ..  DcDc:     Yuvienco v. Vilsack   (Agriculture)  ..  Ms. Yuvienco is a Black woman   of Colombian national origin.   She was born in 1958.   From at least 2014 until 2021, Ms. Yuvienco was employed by the United States Department of Agriculture   as a Technical Information Specialist with the Food Safety and Inspection Service,   which is part of the Office of Public Affairs and Consumer Education.     As far as the Court can discern, Ms. Yuvienco’s claims start in April 2021,   when “on several occasions”   her supervisors   “Roxanne Smith,   Wendy Mihm,   and   Aaron Lavalle   subjected Plaintiff to various incidents of harassment,”   although there are no further details or allegations about any specific actions taken by these individuals until several months later, in July 2021.     All three supervisors are white   and   of American national origin.     The core of Ms. Yuvienco’s allegations is that her “managers accused her of not meeting her metrics,   refused to provide her with her metrics,   and alleged she was performing poorly.”     More specifically, on July 1, 2021, Ms. Yuvienco “was issued a Letter of Instruction by Roxanne Smith alleging that she failed to meet performance expectations.”     Ms. Yuvienco alleges that she suffered employment discrimination in violation of Title VII of the Civil Rights Act of 1964   on the basis of her race and her national origin,   age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”),   and that she experienced a hostile work environment based on her race, national origin, and age.   ... CONTINUED  ..  COURT DECISION:   (.html)

♦       Feb 23,  .. FLRA:  VA v. AFGE  ..  The grievant is in a career-ladder position.    On March 13, 2022, he would have been eligible for a career-ladder promotion,   but did not receive it because of performance deficiencies.    The grievant filed a grievance.    Thereafter, he improved his performance and received his promotion on July 20, 2022.    Nevertheless, the grievance proceeded to arbitration.      The parties did not stipulate the issues,   so the Arbitrator framed them in the merits award as follows:    “Did the Agency violate Article 23 of the parties’ agreement?    If so, what shall be the remedy?”     Article 23, Section 4.A.2. states:   “If an employee is not meeting the criteria for promotion, the employee will be given a written notice at least sixty days prior to earliest date of promotion eligibility.  The written notice will state what the employee needs to do to meet the promotion[-]plan criteria.”     Article 23, Section 4.B. pertinently states:   “At any time a supervisor and/or employee recognize an employee’s need for assistance in meeting the career-ladder advancement criteria,   the supervisor and employee will develop a plan tailored to assisting the employee in meeting the criteria.”      ... CONTINUED.  ..  FLRA DECISION:   (.html)   (.pdf)


♦       Feb 22,  ..  CAA:     Griffin v. Ark. Healthcare Services, LLC  ..  Dr. Griffin is an OB/GYN.     In July 2018, she accepted a position with Arkansas Healthcare Services, LLC (AHS), which employs physicians to work in National Park Medical Center, a hospital in Hot Springs.     The parties entered a Physician Employment Agreement (PEA) with a three-year term. Naturally, it included “I work” and “you pay me” provisions.     One was a $25,000 signing bonus Dr. Griffin would receive immediately; but she would have to repay in part if her employment ended before the contract term.     Other provisions set out how and why each party could terminate the contract.     AHS sent Dr. Griffin a letter in April 2019 terminating her employment immediately.     Dr. Griffin disputed there was cause for termination but, it appears, acknowledged the need to determine that through arbitration.     She submitted a statement of claim for breach of contract to the American Health Lawyers Association, one of two arbitrators offered in the Physician Employment Agreement (PEA) :     Dr. Griffin believes her termination was wrongful and that Arkansas Healthcare Services, LLC is in breach of the Physician Employment Agreement.     She demands immediate reinstatement to her position with full back salary and benefits.     ... CONTINUED.  ..  COURT DECISION:   (.html)

♦       Feb 22,  ..  5th Cir.:     Xia v. Ramey  ..  On September 16, 2019, Linda T. Ramey, and Associates (“LTRA”) offered Ms. Xia, a Chinese national working in America on an H-1B visa, a job as a design engineer.     After several months on the job, however, LTRA terminated Xia.     In response, Xia sued LTRA.     Xia later amended her initial complaint and added William Martinez, an LTRA employee and Xia’s supervisor, as a codefendant, though it essentially alleged the same claims as Xia’s initial complaint.     Eight days later, Xia submitted a “Plaintiff’s Brief,” which the district court accepted as Xia’s second amended complaint.     In that same order, the district court directed Xia to make no further amendments unless permitted by the court.     If we construe her pro se pleadings liberally, Xia alleges employment discrimination based on sex, race, and national origin.     She further alleges a hostile working environment claim and claims related to her H-1B visa.     Xia further alleges that:   (1) her supervisor told an inappropriate joke around her, glanced at her inappropriately, invited her to lunch, and followed her to her car, as well as other grievances;    (2) her male coworkers invited her to drink alcohol with them during working hours;    and    (3) her coworkers gossiped about her and made comments about and asked her insensitive questions relating to her Chinese heritage.  ..  COURT DECISION:   (.html)

♦       Feb22,  ..  11th Cir.:     Sholes v. University System of Georgia  ..  On July 1, 2016, anesthesiologist, Mr. Sholes, M.D. began his residency in the Augusta University Anesthesiology and Perioperative Medicine Department.     The anesthesiology program ordinarily requires three years to complete, and the American Board of Anesthesiology and an accreditation council oversee various aspects of the program, which consists of a defined academic schedule and work in the operating room.     If a resident fails to attend at least 80 percent of the educational component, he receives an “unsatisfactory” evaluation in the core competency of professionalism, which is reported to the Anesthesiology Board.     Residents are required to arrive at work no later than 6:30 a.m. and have their operating room set up and patient interviews completed by 7:00 a.m.     Residents receive evaluations from faculty, providers, and senior residents, and these evaluations are provided to the Clinical Competency Committee.     Every six months, the Committee evaluates each resident’s progress and shares its evaluation with the Anesthesiology Board. Any resident who receives an “unsatisfactory” report is placed on remediation, and two consecutive unsatisfactory reports require a residency extension of at least six months.     Within Sholes’s first three weeks of residency, the director of the anesthesiology program, Dr. Mary Arthur, and the chief resident met with Sholes   after receiving complaints from faculty and senior residents about  him arriving to work   and   coming back from breaks late,  missing lectures,   being unable to be in a room by himself,   using his phone during a case,   and failing to have his rooms and instruments ready before a case,   which suggested he was unable to run anesthetic procedures safely at the level of his peers.     On November 22, 2016, after Dr. Arthur continued receiving complaints about Sholes   repeatedly arriving late to work   and   patient safety concerns,   she met with him again and implemented a plan for him to complete daily time logs.  ..  COURT DECISION:   (.html)


♦       Feb 21,  ..  11th Cir.:     Ebonie Carlisle v. Rhodes & Rhodes Family Dentistry  ..  Sisters, Dr. Melinda Rhodes King and Dr. Belinda Rhodes King, owned Rhodes & Rhodes Family Dentistry (R&R).     R&R employed Ms. Carlisle as a dental hygienist.     All three women are black.     Along with Ms. Carlisle, R&R employed Tracy Robinson, Deena Ross, and Heather Tinker as dental hygienists.     Robinson is black, while Ross and Tinker are white.     Anna Marie Smith and Larrin Durrett, both white, also worked at R&R.     And Lindsey Herd, who is white, supervised all employees as the office manager.     In April 2019,   R&R fired Ms. Carlisle.     R&R says it fired Carlisle because   she refused to help with patients,   was insubordinate,   and behaved combatively.     Carlisle sued R&R, claiming, among other things,   race discrimination   and   retaliation.  ..  COURT DECISION:   (.html)

♦       Feb 21,  ..  KCA:     Frazier v. City of LeRoy, Kansas  ..  On January 1, 2021, Mr. Frazier was employed as the police chief of the City of LeRoy, Kansas (the City).     In July 2021, a dog owned by Charlie and Julie Patterson went into another homeowner's yard and attacked their dog.     Tre Copeland and Chanda Acklin were the owners of the dog that was attacked.     Eddie Skaggs, who saw the dog fight, attempted to subdue the Pattersons' dog and eventually used an electric "cattle prod" to shock the Pattersons' dog and separate the dogs.     Because of the Copeland/Acklin dog's injuries sustained in the dog attack, the dog had to be euthanized.     The LeRoy City Council adopted Resolution No. 2021-5,     which declared that the Pattersons' dog was a nuisance,   demanded that the Pattersons remove their dog from the corporate limits of the city,   and directed Police Chief Frazier,   to serve the order to abate nuisance on the Pattersons.     The order gave the Pattersons 10 days to remove the dog or request a hearing before the City's governing body.     If the Pattersons failed to do either, the order directed Police Chief Frazier to have the dog removed from the city and impounded.     After the resolution was passed by the council, the mayor signed the order to abate nuisance and directed Police Chief Frazier to serve it.     Police Chief Frazier refused to serve the order.     He contended that his refusal to serve the order was because he believed it to be unlawful and against his oath as a commissioned law enforcement officer.     On August 2, 2021, the City terminated Frazier's employment, as Police Chief, for insubordination.     Frazier brings this appeal against the City,     arguing that the City's decision to terminate his employment as the Chief of Police was     arbitrary or capricious,     outside the scope of its authority,     and unsupported by substantial competent evidence.   ...   CONTINUED.  ..  COURT DECISION:   (.html)


♦       Feb 20,  ..  CCA:     Quigley v. Bis Club & Bar  ..  Following trial, the jury returned a special verdict finding Bis Club & Bar, Inc. (Bis Club) liable on plaintiffs Carolina Quigley and Veronica Maya's causes of action for   nonpayment of minimum wages,   meal period violations,   rest period violations,   failure to provide itemized wage statements,   failure to timely pay wages,   sexual harassment,   failure to prevent sexual harassment,   wrongful termination in violation of public policy,   and   sexual assault/battery.     The jury also awarded punitive damages to Plaintiffs.     Bis Club, appeals.  ..  COURT DECISION:   (.html)

♦       Feb 20,  ..  11th Cir.:     Calhoun v. Baldwin State Prison  ..  It all began when Mr. Calhoun, driving over 95 miles per hour in a 70 mile-per-hour zone on an interstate highway, sped past an officer in an unmarked car.     The officer activated his car’s blue lights and siren and gave chase. Instead of pulling over, Calhoun accelerated.     He had two other people with him in his car. One in the front passenger seat and another in the back seat.     A number of other officers joined the chase, but Calhoun thwarted their initial attempts to stop him.     The officers tried to box in his car by surrounding it with theirs –– a tactic known as a “moving roadblock” –– but that didn’t work.     They also tried to stop his car with stop sticks (a tire deflation device), but that didn’t work either.     Calhoun raced on at speeds of more than 115 miles per hour, weaving through traffic, turning in front of other vehicles, and using the emergency lane to pass other cars. At one point, he drove through a Department of Transportation construction site, slowing down only “a minimal amount” before resuming his breakneck speed.     At another point, he swerved out of the way of an officer who was stopping traffic in one of the lanes. Calhoun’s last-minute swerving forced another officer who was in the chase to plow his car through the median to avoid running over the officer who was stopping traffic.     The chase lasted for 21 miles, and during it Calhoun aver- aged a speed of 90 miles per hour, which was more than 20 miles an hour above the speed limit.     His top speed of 118 miles an hour was almost 50 miles an hour above the speed limit.     Throughout the chase Calhoun drove erratically, recklessly, and dangerously in his efforts to escape the pursuing officers. ... CONTINUED  ..  COURT DECISION:   (.html)

♦       Feb 20,  ..  DcDc:     Bullock v. Hana Security Services  ..  Mr. Bullock worked for Hana Security Services (Hana) as a security guard.     Hana fired him on April 13, 2022.     As Hana sees things, Bullock “violated company policy” by “bullying, intimidating, and threatening coworkers.”     In Bullock’s account, Hana terminated him because of his race and because he challenged his labor union, the Security, Police, and Fire Professionals of America (“SPFPA”).     Bullock’s initial complaint sought relief against “Hana Security Services,”     but Hana indicates that it does not maintain a legal entity with that name     Consistent with Hana’s position and with the nomenclature used in Bullock’s Second Amended Complaint,     the Court will treat Hana Industries, Inc. as the appropriate defendant in this action. After ending Bullock’s employment, Hana submitted a claim regarding Bullock to the Federal Protective Service (“FPS”) within the Department of Homeland Security (“DHS”), which decides whether private contractors who work as security guards are fit for federal employment.     FPS revoked Bullock’s “suitability determination,” making him ineligible to work as a security guard at federal facilities.     Without an active suitability determination, Bullock lost work from another employer, Golden Services, Inc.     Bullock sued Hana, two Hana employees, the union, and the FPS’s Division Director.     His complaint sought damages against Hana and its employees for racial discrimination under Title VII and for defamation and intentional infliction of emotional distress under D.C. law; against SPFPA for breach of contract and for violations of the federal E-Sign Act; and against the Division Director for “[b]reach of duty,” negligence per se, and negligent infliction of emotional distress.     It also sought vacatur of FPS’s revocation of his suitability determination under the Administrative Procedure Act (“APA”).     The defendants move to dismiss and/or for summary judgment.  ..  COURT DECISION:   (.html)

♦       Feb 20,  ..  VSC:     Chase v. Gifford  ..  Dr. Chase is an orthopedic surgeon who started working at Gifford in 2017.     In 2019, he received a “glowing medical staff performance evaluation.”     His most recent employment agreement was for a one year, with an automatically renewable term, which could be terminated without cause on 90 days’ notice.     The agreement obligated Gifford to provide Dr. Chase with professional liability insurance during his employment.     In late 2020, Dr. Chase refused to continue working on a surgical fracture table that he deemed unsafe, and he raised other patient care and safety concerns with Gifford.     Gifford reacted with hostility.     Two weeks later, Gifford threatened to subject Dr. Chase to a peer review or a performance improvement plan for medical charts that Gifford falsely claimed were deficient.     In June 2021, Dr. Chase reiterated his patient confidentiality concerns.     A week later, he was placed on a performance improvement plan for being delinquent with medical charts, though there was, in fact, no tardiness.     The following month, he was told that he would be put on another improvement plan for the same (baseless) reason.     A few months later, Dr. Chase was asked to attend a peer review meeting at which it was alleged, falsely, that he had failed to write follow-up orders for a specific patient.     He was told he would be subject to yet another improvement plan as well as “open-ended monitoring of his charts.” Shortly thereafter, Gifford filed a claim against Dr. Chase with the Vermont Medical Practice Board (the “Board”) that had no legitimate basis.     Dr. Chase hired legal counsel. Gifford later withdrew the performance review plan, the peer review, and its complaint with the Board.     On April 8, 2022, Gifford terminated Dr. Chase’s employment.  ..  COURT DECISION:   (.html)


♦       Feb 16,  ..  CCA:     Joaquin v. City of Los Angeles  ..  Plaintiff Richard Joaquin is a Los Angeles Police Department (LAPD) sergeant employed by the City of Los Angeles (City).     Joaquin filed a lawsuit against the City for retaliation in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 et seq.).     He alleged, in part, that the denial of a promotion and request for a lateral transfer was substantially motivated by his prior sexual harassment complaint and subsequent FEHA lawsuit against the City.     A jury found in favor of Joaquin on these claims and awarded him noneconomic damages.     On appeal, the City challenges two evidentiary rulings by the trial court, the sufficiency of the evidence to support the judgment, and the prejudgment interest awarded to Joaquin.     Joaquin refutes the City’s contentions and requests that this court award him reasonable attorney fees.  ..  COURT DECISION:   (.html)

♦       Feb 16,  ..  8th Cir.:     Collins, Jr. v. K.C. MO Public School District  ..  Mr. Collins had been employed in various positions at the the Kansas City Missouri Public School District for about a decade, and, at the time relevant here, he was an "attendance ambassador." He reported directly to Samuel Johnson, whom Collins characterized as his longtime friend.    Johnson later left the school district and reported to state education authorities that the school district had engaged in "attendance fraud." To support his allegations, Johnson supplied the authorities with information that Collins had provided him.    The school district hired a third party to investigate the allegations, and once that investigation was complete, the school district fired Collins.      Mr. Collins admits that he participated in the fraud.    Emails sent between Johnson's and Collins's personal accounts reveal that Johnson provided Collins with lists of students whose attendance records he would change at home from his personal computer without supporting documentation.    To illustrate, one day Johnson sent Collins an email titled "Lets work my brother" in which he asked Collins to "move 50–70 a day" and said that "if you could move about 50 up tonight .    .    .    that would be great."    So Collins did so.    That particular day was no aberration.    Collins testified that he regularly altered attendance records until "they hit whatever mark they needed to hit," and he admitted that he decided which students' records to alter from the provided lists.    Collins never questioned Johnson's directives or refused to follow them.      In his complaint, Collins raised numerous claims against the school district arising out of his termination, but only three remain relevant.    The first is a claim that the school district discriminated against him on the basis of race when it terminated him.    The second is that the school district retaliated against him for engaging in protected activities.    Finally, Collins complains that the school district violated a state law that prohibits public employers from retaliating against whistleblowers.  ..  COURT DECISION:   (.html)

♦       Feb 16,  ..  3rd Cir.:     Thompson v. Anthem Companies  ..  From May 2012 until January 2016, Ms. Thompson, who is of Guyanese descent, worked as a Senior Case Manager at the Anthem Companies (“Anthem”). In February 2015, Thompson received a 2.80 out of a possible 5 on her 2014 performance evaluation, which rounded up to a 3, rating her at “Consistently Successful.”     Thompson refused to sign this evaluation because she did “not feel her evaluation was fair,” and she told her manager, Nadine Carter, that she thought the performance evaluation had “nothing to do with her day-to- day work,”     Carter allegedly responded that Thompson should consider herself lucky to be making “mega bucks as a little Guyanese girl.”     Thompson then spoke with Human Resources (“HR”) about “the high caseload and how they [sic] treating me, and the comments they making [sic] about the job.”     But Thompson did not report Carter’s “little Guyanese girl” comment to HR.     In June 2015, Susan Washington took over as Ms. Thompson’s manager     By that time, Thompson had been failing to follow up with colleagues and keep her files updated.     That prompted Washington and a representative from HR to meet with Thompson to discuss her performance, a meeting that ended with Thompson agreeing to take steps to meet expectations.     But things did not improve and, a few months later, Washington issued Thompson a written warning identifying specific concerns with Thompson’s performance.     The Written Warning set forth an action plan for Thompson to follow and contained the following statement: “If at any time during the warning period or thereafter you do not meet the expectations, you do not make sufficient progress toward meeting the stated expectations, or are not able to sustain the improvement, additional corrective action may be taken, up to and including termination of your employment.”     Following the Written Warning, Thompson and Washington met weekly so Washington could measure Thompson’s progress on the corrective action plan.     In November 2015, Thompson complained to HR about her allegedly hostile work environment, alleging that her supervisor and other individuals “made her feel very small” in meetings by “hinting on her accent” and asking her to repeat things.     Thompson said that “all the complaints from my managers had nothing to do with my job performance.     It was like, oh, it was a customer call and said I was rude.     All the while, Thompson continued to struggle in the same areas that her managers flagged in the performance reviews,     and     Thompson’s employment was terminated in January 2016.     Thompson filed a complaint against Anthem.  ..  COURT DECISION:   (.html)


♦       Feb 15,  ..  SCNJ:     Sanjuan v. Hudson School District  ..  The Board of Education for the Town of West New York Public Schools (the Board), hired plaintiff Amada Sanjuan as a teacher in the early 1990s.     In 2019, the Board appointed Sanjuan assistant principal of Memorial High School.     She acquired tenure both as a teacher and as an assistant principal.     In August 2020, the Board certified tenure charges against Sanjuan for conduct unbecoming.     Sanjuan reported that she fell down a staircase at the school after reaching to pick up a piece of paper, but security footage showed that after Sanjuan fell, she reached into her pocketbook, took out a piece of paper, set it down in the middle of the staircase, and then resumed her position on the floor.     The Commissioner of Education deemed the charges “sufficient to warrant dismissal or reduction in salary of the person charged” and referred the case to an arbitrator.     The arbitrator concluded that the limited scope of the incident and Sanjuan’s long service with the public school district as a teacher warranted a demotion, not termination.     He terminated her tenured administrative position but allowed Sanjuan to retain her tenured teaching role.     The arbitrator further concluded that Sanjuan’s “failure to take ownership” of her misdeed “warrants that her reinstatement . . . be without backpay.”     Sanjuan filed a verified complaint and order to show cause seeking to vacate the arbitration award and to be reinstated as a tenured administrator with backpay. ... CONTINUED  ..  COURT DECISION:   (.html)

♦       Feb 13,  ..  DcCa:     Osman v. First Priority Mgmt  ..  On July 30, 2019, First Priority Management (“First Priority,” informed Mr. Osman that he was being terminated from his position as building engineer.     As a condition of his employment, Mr. Osman had long occupied Unit 10 at the employer’s building located at 3130 Wisconsin Ave. NW,     and First Priority notified him that he had two months to vacate the apartment following his termination.     After Mr. Osman refused to vacate,  First Priority brought a complaint to recover possession of Unit 10.   ... CONTINUED  ..  COURT DECISION:   (.html)

♦       Feb 13,  ..  10th Cir.:     Xu v. Denver Public Schools  ..  Xu is Asian, a Chinese national, and a legal permanent resident of the United States.     At a District hiring fair in the summer of 2018, Edwin Salem, an Assistant Principal at the District’s Noel Community Arts School (NCAS), offered Xu a job teaching math.     According to Xu, he was hired to teach 10th grade and above, but during training he was told he would be teaching 9th grade.     Xu had difficulty with classroom management and failed to consistently document student misbehavior in the District’s online information system.     Students also complained [...] that they did not understand Xu’s teaching, and they told Xu that “he talked too fast and his accent made it hard for them to understand,”     Xu responded that “NCAS students did not care about their education.”     Salem put Xu on a performance improvement plan and told him that if the problems continued, Xu’s contract probably would not be renewed for the following school year. ... CONTINUED  ..  COURT DECISION:   (.html)

♦       Feb 13,  ..  MSPB:     Paschal v. Department of Defense  ..  The appellant was employed as a General Engineer.     The agency proposed to suspend her for 30 days on the basis of the following charges:   (1) discourtesy towards a supervisory official;   (2) lack of candor (inaccurate statements); and   (3) discourtesy towards a management official.     The appellant responded orally and in writing to the proposal.     The agency sustained the charges and imposed the suspension.     The appellant filed the instant Board appeal, requested a hearing, and asserted affirmative defenses of sex discrimination and retaliation for EEO activity.     After holding the appellant’s requested hearing, the administrative judge issued an initial decision that sustained the charges, found that the appellant failed to prove her affirmative defenses, and determined that a 30-day suspension was a reasonable penalty for the sustained misconduct.     The appellant has filed a petition for review, challenging, among other things, the administrative judge’s credibility determinations and analysis of her affirmative defenses, and arguing that a 30-day suspension was not a reasonable penalty.  ..  COURT DECISION:   (.html)


♦       Feb 9,  ..  11th Cir.:     Ayala, Jr. v. Nissan North America  ..  Technicians were automotive service employees working at Florida Nissan dealerships, where they allege they performed vehicle repair and maintenance on behalf of Nissan but allegedly were not compensated as required by law.     Nissan argues,   and the district court agreed   that it is not the joint employer along with the respective dealerships, and thus it has no liability for any FLSA violations that might have resulted from the dealerships’ independent decisions with respect to wage payments to their employees, the Technicians.     Mr. Ayala and Mr. Santos (“Technicians”) appeal the district court’s denial of their motions for class certification and FLSA collective action and its grant of the Nissan North America’s (“Nissan”) motion for summary judgment in this Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, case.  ..  COURT DECISION:   (.html)

♦       Feb 9 ,  ..  WSC:     Pinther v. American National Insurance  ..  In 2011, Mr. Pinther applied to be an insurance sales agent for ANPAC and ANICO in Cheyenne, Wyoming.     Jim Gniady was an American National multiple line general agent, whose responsibilities included recruiting and training new sales agents in the region.     During the application process, Mr. Gniady gave Mr. Pinther a recruiting brochure.     The brochure summarizes various benefits available to its insurance agents, including “Retirement Compensation.”     Mr. Gniady testified that from the beginning Mr. Pinther’s performance was disappointing both in terms of the number of policies he wrote and the quality of service he provided.     Mr. Gniady received complaints from ANPAC’s underwriting department because Mr. Pinther submitted applications on properties that were unacceptable risks and incorrectly wrote auto policies as “pleasure use” policies, resulting in inappropriate coverage.     In addition, customers complained about Mr. Pinther.     As the number of customer complaints about Mr. Pinther continued to increase, Mr. Gniady started documenting those complaints.     ... CONTINUED  ..  COURT DECISION:   (.html)

♦       Feb 9,  ..  8th Cir.:     Whitehorn v. Maverick Tube Corporation  ..  In 2019, five pipes, each weighing over a ton, fell from a truck being driven by Stevie Whitehorn at his employer Maverick Tube Corporation’s Blytheville, Arkansas facility.     Under Maverick Tube’s policies, Whitehorn was responsible for securing the pipes to his truck before driving.     After the accident, Maverick Tube investigated and determined that Whitehorn had not strapped down the pipes before driving.     Maverick Tube fired Whitehorn,     and he sued, alleging that he was fired based on his race and age in violation of Title VII of the Civil Rights Act [...], and the Age Discrimination in Employment Act, [...] .     Maverick Tube moved for summary judgment, and the district court granted the motion.     Whitehorn appeals.  ..  COURT DECISION:   (.html)

♦       Feb 9,  ..  11th Cir.:     Jones v. Georgia Ports Authority  ..  Mr. Jones worked for Georgia Ports Authority (“GPA”).     Mr. Jones is an Army veteran who had been formally diagnosed with post-traumatic stress disorder (“PTSD”) that stemmed from his time in combat.     After serving in the military, he began working for the GPA, where he acted as a ship-to-shore crane operator for 24 years until his termination in February 2019.     Starting in 2016, Mr. Jones worked under Karl Nell, who Jones alleges created a “very stressful” environment in the ship-to-shore department.     According to Jones, Nell made statements to crane operators threatening their jobs and personal safety should any of the crane operators go to management with complaints.     Jones believed working with Nell exacerbated his PTSD symptoms.     This stress caused Jones to request, in August 2018, leave under the Family and Medical Leave Act (“FMLA”) between August 10 and November 2, 2018, to undergo intensive therapy for his PTSD.     In his request, Jones provided the GPA with a letter signed by his treating physician, Dr. Maritza Laura from the Department of Veterans Affairs (“VA”).     The GPA granted Jones’s FMLA request. Near the end of his leave, Rosa Simmons with GPA’s Human Resources (“HR”) department sent Jones a letter informing him that his leave period was set to expire soon, and that she needed an update on his status.     In response, Jones sent GPA another signed letter from Dr. Laura requesting an additional 12 weeks of leave.     HERE, Mr. Jones appeals the district court’s grant of summary judgment for his employer, Georgia Ports Authority (“GPA”), in an action alleging disability discrimination under the Americans with Disabilities Act (“ADA”).  ..  COURT DECISION:   (.html)


♦       Feb 8,  ..  DCAF:     Presidio, Inc. v. Feeny  ..  Mr.   Feeny worked for Presidio, Inc. from March 1, 2015, to October 29, 2019, as the Senior Director of Data Analytics in the IOT department.   While employed, a Company Performance Plan governed Feeny’s compensation.   Presidio’s employee performance plans were determined from a budget set by Presidio’s Board of Directors, which was then passed on to each business unit responsible for setting its objectives.   The plans changed yearly.       As in prior years, Feeny signed the plan in 2018.   The 2018 document stated, in part: This document summarizes the Performance Plan for the Sr.   Director of Data Analytics objectives starting FY18.   It is provided to clarify both the Individual’s objectives as well as the incentive plan associated with meeting these objectives.   All objectives are provided on a yearly basis unless otherwise specified.   All Performance end Bonus plans are discretionary and subject to change based on individual or corporate performance.       In 2018, Presidio paid Feeny a $30,000 bonus.   Since the IOT department met its objectives, Feeny expected an additional $68,250.   When Presidio did not pay the additional $68,250, citing poor company performance, Feeny sued Presidio for breach of contract and unjust enrichment.    ... CONTINUED  ..  COURT DECISION:   (.html)

♦       Feb 8,  ..  6th Cir.:     Caudle v. Hard Drive Express  ..  Caudle began working as a truck driver for Defendant-Appellee Hard Drive Express, Inc.   (Hard Drive), owned by Defendant-Appellee James Betz, in August 2015.   Like other drivers, he was paid by the mile rather than on a salary or hourly basis, a practice Betz testified is standard in the industry.   According to Betz, driver pay was approximately $0.45 per mile in 2015, at the beginning of Caudle’s employment, and increased to around $0.58 per mile by the time Caudle’s employment was terminated.   Although Hard Drive’s drivers averaged 2,500 to 2,700 miles a week, Caudle, “a hustler” and “hard runner,” averaged 3,500 miles.      Driver pay also included additional flat fees, for “stop pay, delay, and drop and hook,” and drivers received a $0.02 per mile “Safety and Performance” bonus.      The bonus, according to Betz, rewarded drivers for “doing [their] job safely” and “on time.” It also compensated them for time spent performing maintenance tasks and required inspections outside their on-duty driving time.   However, Hard Drive could suspend the bonus if a driver committed a safety infraction; Caudle’s safety and performance bonus was suspended for thirteen weeks in 2018 after he damaged another truck.        Additionally, in January 2019, Hard Drive implemented a paid-time-off policy.   The policy provided drivers five paid days off per year, subject to several conditions, including that drivers were required to give thirty days’ notice before the paid time off, and were also required to work the two weeks immediately before and immediately after the days off.        Caudle conceded at summary judgment that his pay for “regular work hours” exceeded minimum wage; however, he “contest[ed] that he was paid minimum wage for all hours” worked.   According to Caudle, Hard Drive repeatedly failed to reimburse him for the time and expense of repairing and servicing company-owned trucks.   Caudle asserted that although he sometimes made repairs himself, paid for repairs or parts himself, and “was at times required to drive over 100 miles or more to obtain parts,” Hard Drive failed to compensate his time and reimburse his expenses.      Plaintiff-Appellant Mr.   Caudle appeals the grant of summary judgment to his employer in this Fair Labor Standards Act (FLSA) and Michigan Whistleblower Protection Act (WPA) case, alleging that he was fired in retaliation for attempting to report unlawful employment practices.        We REVERSE and REMAND for further proceedings.  ..  COURT DECISION:   (.html)

♦       Feb 8,  ..  ICA:     Kraft Heinz Company v. Ernest Bynum  ..  Ernest Bynum began working for Kraft Heinz Company (Kraft) in November 2018 through a temporary employment agency.     He was hired as a Kraft employee on January 7, 2019. Bynum’s job duties while employed by the temp agency and by Kraft were the same. Those duties in Kraft’s sanitation department included shoveling waste and stacking pallets.     It was physically demanding work. Over time, this work caused Bynum to experience pain and a pulling sensation in his groin. Bynum saw doctors about the problem. In early February, a doctor diagnosed a hernia and scheduled Bynum for surgery later in the month to repair it.     Prior to the surgery, Bynum informed Kraft of his medical problems and upcoming surgery.     After the surgery, he took time off work to recover.     While off work, he received short-term disability benefits. While the benefits were managed by a third party, Bynum worked with Kraft personnel to sign up for those benefits.     Bynum returned to work, but still felt pain, so he visited the doctor again.     After the pain resulted in an emergency room visit in May, Bynum did not return to work.     In June, Bynum requested a referral for a second opinion from University of Iowa Hospitals and Clinics (UIHC), but because the injury was work-related, UIHC declined to schedule an appointment.     On June 13, Bynum wrote a letter to his supervisors and others in the company explaining that he had informed multiple people about his injury but had received no help and that he believed he should be receiving workers’ compensation benefits.     A Kraft employee subsequently filed a first report of injury.     In November, Bynum again returned to his doctor complaining of the same pain and discomfort.     The doctor recommended a trial of pain medication and referred him to a pain clinic.     At some point after delivering the June 13 letter, Bynum tried to return to work and learned he had been fired.     Bynum filed a workers’ compensation claim against Kraft and its workers’ compensation insurer [...].     The deputy commissioner determined that Bynum had suffered a cumulative injury caused by his work at Kraft, finding February 5, 2019, to be the date of injury.     Kraft asserted the affirmative defense that it had not received notice of the injury within ninety days of that date as required by Iowa Code section 85.23 (2019).     The deputy commissioner disagreed, finding Kraft had failed to prove it did not receive timely notice because it had not rebutted credible testimony that Bynum had informed multiple supervisors of the injury within the ninety-day period.     Kraft appealed to the commissioner, who affirmed and adopted the deputy commissioner’s decision.     Kraft petitioned for judicial review, making the same argument.     HERE, Kraft appeals the district court’s denial.  ..  COURT DECISION:   (.html)


♦       Feb 7,  ..  11th Cir.:     Harrison v. Sheriff of Holmes County Florida  ..  Mr. Harrison, is a former employee of the Holmes County Sheriff’s Office.     Harrison began his employment with the Holmes County, Florida Sheriff’s Department in 2001 as a correctional officer.     He eventually became a certified law enforcement officer, achieved the rank of lieutenant, and oversaw narcotics investigations.     In 2018, after taking twelve weeks of leave under the Family and Medical Leave Act (“FMLA”) because of a self-inflicted gunshot wound that he suffered while on call in his patrol vehicle, Harrison resigned.     Almost four years later, Harrison filed a civil complaint against the Holmes County Sheriff, alleging that he was constructively discharged on the basis of his actual or perceived disability—namely, his mental health issues—in violation of the RA.     The relevant facts here, construed in the light most favorable to Harrison, fall into three buckets: Harrison’s    (1) relationship with his coworker, Page Fleming,    (2) history of mental illness culminating in his suicide attempt, and    (3) resignation.     At bottom, this appeal hinges on whether Harrison’s alleged constructive discharge was based    (1) solely on Harrison’s mental illness; or    (2) at least partially on Harrison making misleading comments about his relationship with his coworker, and shooting himself while intoxicated and on call in a county vehicle. Harrison argues that a reasonable jury could find that it was the first alternative.     We discuss each in turn. ... CONTUNUED  ..  COURT DECISION:   (.html)

♦       Feb 7,  ..  CAT:     Korshoff v. Wesley Financial  ..  America’s timeshare industry, which is built upon selling individuals and families “split ownership” of vacation homes “for a given length of time every year, in perpetuity,” has grown substantially.     In response to the “85 percent of timeshare owners who . . . regret their purchase,” industrious companies have begun marketing timeshare cancellation services, promising customers to send negotiators to fight to cancel their timeshare.     Appellant Wesley Financial Group (Wesley) provides such timeshare cancellation services. This appeal concerns Wesley’s termination of one of its employees, Appellee Audrey Korshoff.     An employer terminated an employee after she requested unpaid commissions pursuant to her contract.     The employee sued her former employer claiming breach of contract, unjust enrichment, retaliatory discharge, and intentional misrepresentation.     She also sought punitive damages.     The jury found in the employee’s favor on all claims and awarded damages for breach of contract, unjust enrichment, and retaliatory discharge as well as awarding punitive damages.     The former employer sought post-trial relief, arguing the jury’s verdicts were inconsistent and that the jury’s punitive damages award was in error and excessive.     The trial court concluded the verdicts were consistent but did reduce, while not eliminating, the punitive damages award.     The former employer appeals, challenging the compensatory and punitive damage awards.  ..  COURT DECISION:   (.html)

♦       Feb 7,  ..  DcDc:     Newman v. Howard University  ..  Plaintiff Michael R. Newman is a former student of Howard University School of Law, Class of 2023.     Howard is a historically black college or university, or HBCU for short. Newman, a white male, enrolled there to “learn the thoughts and experiences of people of color.”     Although most Howard students are black,     Newman was not the only white law student during his time there.     Newman enrolled at Howard, in part, because of a scholarship it offered him.     Newman’s scholarship agreement entailed the school covering roughly $26,000 of his tuition during his first year of study.     To maintain the scholarship, Newman had to rank in the top half of his law school class.     Failure to do so would result in his scholarship being suspended with an opportunity for later reinstatement.     Or, if Newman’s performance dropped low enough, the scholarship agreement could be terminated altogether.     With this offer in hand, Newman enrolled at Howard.     Newman’s experience at Howard was turbulent from the start. Shortly after starting law school, Newman attended a symposium with his classmates.     At the symposium, a black speaker stated that “if Biden and Harris won the White House, they would usher in a ‘golden age of environmental justice.’”     In response, Newman posted in a group chat with his classmates, “Where I part with the black community is where they believe government solves problems, I only see it causing problems.”     He likewise asked whether “black voters didn’t question turning to government for solutions” and whether black individuals “reliably voting for the same party . . . disincentivized both parties from responding to the needs of black communities.”     These messages began what would ultimately devolve into a years-long conflict between Newman and his classmates and university administrators. Newman’s classmates reacted negatively to his post. One classmate called him “way outta pocket” and said that he hoped a professor would “drag Newman for filth.”     Another removed Newman from a class-wide group chat.     And students met to discuss “next steps” in response to his comments.     When Newman’s classmates announced that meeting, one of his professors “replied jokingly, ‘Whoever it is, I’ll kill him!’”, referring to Newman. ... CONTINUED  ..  COURT DECISION:   (.html)


♦       Feb 6,  ..  3rd Cir.:    Johnson v. Pittsburgh Public Schools,  ..  In January 2022, Ms. Johnson filed a complaint against her former employer, Pittsburgh Public Schools (“PPS”), alleging discrimination under the Age Discrimination in Employment Act (“ADEA”).     Johnson alleged that during the 2020-2021 school year, she was employed by PPS as a third-grade teacher in a “self- contained on-line classroom” and was “required to teach all subjects.”     Johnson elected to take leave through the Family Medical Leave Act and “later decided to resign from her position effective January 2021.”     Ms. Johnson alleged that, while she was on leave, a replacement teacher, Mrs. Paolino, was assigned to teach her class.     Johnson further alleged that the replacement teacher, though she was qualified, was not required to teach all the subjects that Johnson was required to teach, but instead was provided “two additional teachers in the classroom” to teach a portion of the subjects.     According to Johnson, she received a “less favorable” arrangement because of her age, since the replacement teacher and the two other teachers were all younger than her.     PPS moved to dismiss the complaint and the District Court granted the motion.     The District Court dismissed the ADEA claim without prejudice.     The District Court concluded that Johnson failed to plausibly allege that she was constructively discharged and therefore failed to establish that she suffered an adverse employment action.     Johnson appeals.     On appeal, Johnson argues that the District Court incorrectly interpreted her complaint as alleging constructive discharge.     Rather, Johnson alleges that she was treated differently than her younger coworker.     THE THIRD CIRCUIT:   WE AGREE WITH JOHNSON.  ..  COURT DECISION:   (.html)

♦       Feb 6,  ..  SCI:     Selden v. Des Moines Area Community College  ..  After discovering that a male employee was receiving a significantly higher salary than her for doing the same job, Ms. Selden (plaintiff) voiced a concern with her employer.     The employer declined to act on her complaint, explaining that the male employee had been with the company fifteen years longer and that the difference in pay was due to his greater seniority and the initial decision to hire him at a higher point in the salary range because of his thirteen years of relevant experience.     A few months later, Ms. Selden’s supervisor retired, and the plaintiff applied for her job.     Her application was screened out because she lacked the required educational qualifications. At this point, the plaintiff initiated a civil rights complaint.     She then filed a district court action alleging wage discrimination and retaliation in violation of Iowa Code sections 216.6A and 216.11, the equal pay and “no retaliation” provisions of the Iowa Civil Rights Act (ICRA).     After a trial, a jury awarded damages to the plaintiff on both claims.     The employer appeals.     We conclude today that the record does not contain substantial evidence of an illegal—as opposed to unfair—pay practice.     The employer demonstrated without evidence to the contrary that the pay gap was due to gender-neutral factors.     Specifically, it resulted from the effects of a neutral seniority system combined with a decision made to hire the male employee in 1998 at a particular rate based on market conditions and the employee’s considerable experience.     We also find that the retaliation claim was not supported by substantial evidence because the trial showed that the employer consistently screened out all applicants who lacked the required qualifications and there was no evidence of hostility toward the plaintiff.     For these reasons, we conclude that the district court should have directed a verdict in favor of the defendants, and we REVERSE and REMAND for that purpose.  ..  COURT DECISION:   (.html)

♦       Feb 6,  ..  6th Cir.:     Blair v. Frenchko  ..  Ms.     Blair is a clerk for the Trumbull County Board of Commissioners.     Her work environment changed when Commissioner Michelle Frenchko was elected to the three-member Board.     According to Blair, Frenchko harassed Blair because of her Italian-American heritage.     On social media, for example, Frenchko referred to the Commission’s staff as “flying monkeys.” She also referred to Italian-American employees as “greasy” “sausage makers” and compared them to characters in The Godfather.     When Blair and other employees complained, Frenchko doubled down.     She continued to criticize Blair on social media and accused Blair of lying.     She sent harassing emails to Blair and other employees.     And when Blair applied for a promotion within the department, Frenchko voted against her.     But because the other two Board members voted to hire Blair, she got the job.     Eventually, the County’s Human Resources Department investigated Blair’s complaints against Frenchko, concluding that they were meritorious.     After HR finished its investigation, Blair sued Frenchko and the Board, claiming Frenchko’s discrimination created a hostile work environment in violation of Title VII.     She also alleged state-law claims for defamation and intentional infliction of emotional distress.     The district court granted the Board’s motion for judgment on the pleadings, concluding that the Board wasn’t liable for Frenchko’s non-supervisory actions.     And it dismissed Blair’s individual-capacity claims against Frenchko because Title VII doesn’t allow claims against individuals.     The district court declined to exercise supplemental jurisdiction over Blair’s remaining state-law claims.     Blair now appeals her Title VII claim.      ..  COURT DECISION:   (.html)


♦       Feb 5,  ..  ICA:     Indiana Law Enforcement Training Board v. R L  ..  R.L., a police officer (“the Officer”), was arrested in July 2021 and charged with a criminal offense. The events associated with this arrest led the Indiana Law Enforcement Training Board (“the Board”) to initiate disciplinary proceedings against the Officer.     The criminal case was eventually dismissed, and the Officer successfully petitioned to expunge all records of this arrest. In the same cause, he later obtained a declaratory judgment that “Indiana Code Section 35-38-9-10 prohibits the Board from using any and all facts from the expunged arrest case as a basis to revoke or deny to him his license to act as a law enforcement officer.”     The Board now appeals.     Although the Board presents several issues, we identify the following restated issue as dispositive: Whether the trial court correctly interpreted Indiana Code Section 35-38-9-10 (the “anti-discrimination statute”) to apply to the Board in light of the exception to the anti-discrimination statute for public bodies engaged in professional licensing set forth in Indiana Code Section 35- 38-9-0.6 (the “licensing statute”).     We conclude that the scope of the trial court’s declaratory judgment exceeds the applicability of the anti-discrimination statute on the proceedings before the Board.     Although the Board may not consider the expunged records in its proceedings, it may consider independent evidence that the Officer engaged in the actions that gave rise to the arrest.     We therefore REVERSE the declaratory judgment entered in favor of the Officer.  ..  COURT DECISION:   (.html)

♦       Feb 5,  .. FLRA:  AFGE v. AirForce  ..  The grievant works as an AirForce (Agency) firefighter.  AirForce firefighters perform both firefighter and dispatcher duties.      In November 2021, the Agency enrolled the grievant and other firefighters in training courses for the dispatcher duties (the trainings).  The grievant failed to complete one of the trainings within the assigned year.      He was the only firefighter who did not successfully complete the training.  The Agency issued the grievant an oral admonishment.       The Union filed a grievance challenging the training requirements and the oral admonishment.       The Agency denied the grievance, and the parties proceeded to arbitration.      The parties stipulated the issues as whether the grievant was required to take the trainings, and whether the oral admonishment should stand.     The Arbitrator found neither party disputed that “the Agency can assign dispatch duties to firefighters,” and that the firefighters’ “job announcement and . . . description authorize the assignment of dispatcher duties to firefighters.”      He determined that the trainings were “relevant and appropriate for an employee performing dispatcher duties.”      While he acknowledged the Agency’s reliance on a “Department of Defense directive that requires all dispatchers” to take the trainings, the Arbitrator found that, regardless of the directive, the Agency has the right to determine employee training requirements under Article 29, Section 3 of the parties’ agreement.      He further determined that, because the Agency gave the grievant a year to complete the first training, it did not apply the training requirement “in an unjust and inequitable manner.”      On this basis, the Arbitrator concluded the Agency did not violate the parties’ agreement by requiring the grievant to complete the trainings.     The Arbitrator also rejected the Union’s argument that the Agency failed to provide appropriate arrangements, under § 7106(b)(3) of the Statute, to enable the grievant to successfully complete the training.      The Arbitrator construed the Union’s claim as suggesting “that the Agency violated the grievant’s rights by not accommodating whatever issue he had in successfully completing the training” and instead issuing the oral admonishment.      However, the Arbitrator found the Agency was not aware the grievant was having any issue because the grievant did not inform the Agency he had “trouble completing the first stage of the training” until “around one year after being given the assignment.”      The Arbitrator concluded the Agency could not “be faulted for not providing an accommodation when it had no reason to conclude that one was necessary.”     Based on these findings, the Arbitrator found the grievant was required to take the trainings, and he concluded that the oral admonishment “should stand.”     On September 15, 2023, the Union filed exceptions to the award.      The Agency did not file an opposition.  ..  FLRA DECISION:   (.html)   (.pdf)

♦       Feb 5,  ..  ACI:     Miner v. Illinois Human Rights Commission  ..  Miner, a black male, has been employed by the State of Illinois, Department of Central Management Services (CMS) as a Janitor I since February 15, 2016.    CMS provided programs, services, guidance, and support to Illinois executive agencies.    Miner was assigned to perform custodial duties at the Illinois Department of Transportation (IDOT) District 8 Headquarters in Collinsville, Illinois, in the Collinsville Regional Office Building (CROB).    Miner’s position was covered under a collective bargaining agreement (CBA) between CMS and the Teamsters Downstate Illinois Employee Negotiating Committee.    CMS’s discipline policy provided that employees were subject to corrective discipline which progressively used counseling, warnings, and/or suspension, before discharge.      Keith Pigg was Miner’s direct supervisor.    Pigg supervised three additional janitors, including Terry Bowser, Cheryl Dinges, and Julie Stowmatt.    Pigg reported to James Allen, until April of 2020.    Pigg, Allen, Bowser, Dinges, and Stowmatt were white.      The Janitor I job description included a breakdown of job duties.    Thirty percent of a Janitor I’s time was allocated to completing a variety of manual tasks in the care, sanitation, and maintenance of the facility, such as vacuuming, mopping, sweeping, etc.    Twenty-five percent of the time was allocated to maintaining restrooms.    Fifteen percent of the time was allocated to sweeping, shoveling, and cleaning walkways to keep free of debris, including raking leaves and assisting staff in keeping the outside in an orderly condition.    Additional duties included responding to work orders, making minor repairs and adjustments, and any extra assignments that might arise. Miner was assigned specific daily tasks based on the day of the week.      On December 6, 2020, Miner filed a multiple count charge of employment discrimination against CMS based on his race and retaliation, also related to his race.    The Department investigated Miner’s charge and filed an investigation report on February 28, 2022.    The investigation addressed Miner’s evidence of discrimination, CMS’s evidence, and Miner’s rebuttal, for each count.  ..  COURT DECISION:   (.html)


♦       Feb 2,  .. FLRA:  Justice, Federal Bureau of Prisons v AFGE  ..  The grievants are teachers in the Federal Bureau of Prisons' education department, and – as correctional officers – they also perform correctional duties.   The Agency classifies these employees as FLSA‑exempt based on their educational duties but pays them a “premium rate” when they perform overtime correctional‑duty work.   That premium rate is less than the overtime rate for FLSA‑nonexempt employees.      The Union filed a grievance with the Agency’s Human Resource Management Division alleging the Agency violated the parties’ agreement and the FLSA by paying the grievants overtime at the wrong rate.   Prior to filing the grievance, the Union requested that the Agency toll the filing deadline while the parties attempted informal resolution.   However, the Agency did not agree to tolling.   Ultimately, the grievance proceeded to arbitration.      Before the Arbitrator, the Agency raised arbitrability arguments, including that the Union filed the grievance untimely and with the wrong Agency division.      Because the parties disagreed on the issues,.    the Arbitrator framed them as whether     (1) the Union timely filed the grievance,  and     (2) the Agency properly compensated the grievants under the FLSA, and, if not, what is the remedy.   ..  FLRA DECISION:   (.html)   (.pdf)

♦       Feb 2,  ..  6thth Cir.:     Murray Fisher v. Airgas USA  ..  Murray Fisher sued his former employer, Airgas, asserting a disability-discrimination claim under Ohio law.      The district court granted summary judgment to Airgas.      We reverse.      In October 2019, Airgas hired Fisher as an “operations technician,” a role in which he used power tools, worked with combustible gases, and drove a company vehicle.   A month later, doctors diagnosed him with liver cancer.   Yet Fisher continued to work for the next nine months and received positive performance reviews from his supervisor, Kristopher Majors.   In August 2020, however, doctors told Fisher that he needed surgery.   Around that time, he requested accommodations for medical leave and for time off to attend doctors’ appointments.      Airgas granted both requests.   Fisher had surgery later that month and Airgas allowed him to take eight weeks of medical leave.      Fisher returned to work in October 2020, but his medical treatments were causing him pain and nausea.   A former coworker told Fisher that a product called “Free Hemp” might help with his symptoms.   He later purchased that product and began taking a half-teaspoon per day to help manage pain.   Fisher did not tell Airgas that he was taking hemp, but Airgas had no policy prohibiting its use.      In November 2020, Airgas selected Fisher for a random drug test.   A contractor, HireRight, reported that Fisher’s sample was positive for “marijuana.” In response, Fisher denied using marijuana and asked for a retest, explaining that his use of Free Hemp might have caused a false positive.      Airgas agreed to a retest, albeit one using the same sample as Fisher’s first test.   But Airgas did not tell HireRight that Fisher had been using hemp.   Nor did Airgas ask HireRight whether using a legal hemp product—like the one Fisher claimed to have used—could have caused a false- positive test for marijuana.   Meanwhile, Fisher himself contacted HireRight about his positive drug test.   HireRight’s Medical Review Officer, Dr.   George Zoret, told Fisher (by email) that he had tested positive for tetrahydrocannabinolic acid (“THCA”).   That is a different substance from delta- 9 tetrahydrocannabinol (“THC”), which is more commonly associated with marijuana use.   Later, Fisher’s retest was also positive for “marijuana,” and Airgas fired him.      Fisher thereafter sought reinstatement.   In support, he reiterated to Airgas his previous explanation for the positive tests and said that, in his view, HireRight had mislabeled the THCA in his sample as marijuana.   But Airgas’s Vice President of Human Resources, Sherrie Shiflett, informed Fisher that HireRight’s “Chief Medical Officer,” Dr.   Todd Simo, had told her that Fisher’s sample contained “THC” and that Fisher’s use of a legal hemp product would not have caused Fisher’s positive tests.   Contrary to Shiflett’s email, however, Dr.   Simo states in an affidavit that Fisher tested positive for THCA, not THC.   Ultimately, Airgas rejected Fisher’s explanation and refused to reinstate him.      In March 2021, Fisher sued Airgas in state court, claiming that Airgas had engaged in disability discrimination.      The district court granted summary judgment to Airgas.      WE REVERSE  ..  COURT DECISION:   (.html)

♦       Feb 2,  ..  5th Cir.:     Traudt v. Data Recognition  ..  Plaintiff Ms. Traudt claims that Data Recognition Corporation’s termination of her employment was the result of discrimination on the basis of sex.     FACTUAL AND PROCEDURAL BACKGROUND     Data Recognition Corporation (“DRC”) provides various education, assessment, and document services to public entities, primarily K-12 schools.   DRC hired Traudt, a white woman, as an Assessment Solution Representative in January 2018.   Traudt was responsible for selling DRC’s products to school districts and various adult education organizations such as community colleges, prisons, and adult education buildings.   Her sales territory included Colorado, Louisiana, Mississippi, Oklahoma, and North Texas.   Traudt had both a salary and an Incentive Plan for compensation.   The Incentive Plan contemplated the payment of monetary awards to employees based on “achievement in sales.” Incentive Plan, however, provided that it could be “changed or terminated without notice at the sole discretion of [DRC],” and that it granted no contractual rights.     In 2019, DRC entered into an exclusive contract with the Texas Education Agency (“TEA”).   This contract made DRC the exclusive statewide provider of an English language proficiency test to identify students who would qualify for English as a Second Language assistance.   Traudt claims that she played a key role in securing this contract.   Traudt contends that through this exclusive contract and her own significant work efforts, she was personally responsible for $3,625,886 in sales for Fiscal Year 2019.   These sales, she claims, should have entitled her to $165,508 in commission under the Incentive Plan.        Instead, Traudt only received $14,628 for the third quarter of the fiscal year, bringing her cumulative commission payments to $18,814 through the first three quarters of Fiscal Year 2019.   Traudt claims that on multiple occasions she raised concerns over the smaller-than-expected commissions for her and fellow Assessment Solution Representative Gina Davis.   She brought these concerns to Bill Bernys, the Vice President of Sales.   Bernys allegedly responded that if Traudt and Davis were paid according to the Incentive Plans, they would earn more than him and David Seitter, the Senior Vice President of Sales, Marketing & Product Development — which Seitter might disallow.   Traudt further alleges that Bernys told her to “leave it alone for now or you won’t have a job.”     With the onset of the COVID-19 pandemic, Traudt received a letter in May of 2020 explaining that commissions for the first and second quarters of Fiscal Year 2020 would be deferred.   Then, in July 2020, DRC terminated her employment, ostensibly as part of a workforce reduction resulting from lost contracts and revenue during the pandemic.   DRC terminated Gina Davis’s employment as well.   Traudt filed suit in November 2020.     At the district court, Traudt asserted two claims: ;  (1) violation of the Equal Pay Act, and ;  (2) sex discrimination, in violation of “Title VII and/or the Texas Human Rights Act, Texas Labor Code § 21.001.”     Traudt’s claims centered around her smaller-than-expected commissions and the termination of her employment by DRC.  ..  COURT DECISION:   (.html)


♦       Feb 1,  ..  6th Cir.:     Crossley v. Kettering Adventist Healthcare  ..  Marilyn Crossley (“Crossley”) has worked as a speech pathologist at Kettering Adventist Healthcare (“Kettering”) since 2001.   Crossley has Ehlers-Danlos syndrome (“EDS”), which impacts her joint support; a heart condition; and multiple myeloma (a form of cancer).   In 2019, Kettering terminated Crossley’s employment after an investigation showed that she was accessing charts for patients to whom she was not assigned, which Kettering stated was a violation both of its policies and of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).     Crossley sued Kettering and her supervisor, Belinda Isaac (“Isaac”) (collectively, “the Defendants”), claiming that she was discriminated against based on her age and disability, in violation of both federal and Ohio state law, and that Kettering had failed to give her reasonable accommodations for her disability.  ..  COURT DECISION:   (.html)

♦       Feb1,  ..  CCD:     Tornetta v. Elon Musk  ..  Was the richest person in the world overpaid? The stockholder plaintiff in this derivative lawsuit says so.    He claims that Tesla, Inc.’s directors breached their fiduciary duties by awarding Elon Musk a performance-based equity-compensation plan.    The plan offers Musk the opportunity to secure 12 total tranches of options, each representing 1% of Tesla’s total outstanding shares as of January 21, 2018.    For a tranche to vest, Tesla’s market capitalization must increase by $50 billion and Tesla must achieve either an adjusted EBITDA target or a revenue target in four consecutive fiscal quarters.    With a $55.8 billion maximum value and $2.6 billion grant date fair value, the plan is the largest potential compensation opportunity ever observed in public markets by multiple orders of magnitude—250 times larger than the contemporaneous median peer compensation plan and over 33 times larger than the plan’s closest comparison, which was Musk’s prior compensation plan.    This post- trial decision enters judgment for the plaintiff, finding that the compensation plan is subject to review under the entire fairness standard, the defendants bore the burden of proving that the compensation plan was fair, and they failed to meet their burden. A board of director’s decision on how much to pay a company’s chief executive officer is the quintessential business determination subject to great judicial deference.    But Delaware law recognizes unique risks inherent in a corporation’s transactions with its controlling stockholder.    Given those risks, under Delaware law, the presumptive standard of review for conflicted-controller transactions is entire fairness.    To invoke the entire fairness standard, the plaintiff argues that Musk’s compensation plan was a conflicted-controller transaction.    The plaintiff thus forces the question: Does Musk control Tesla?  ..  COURT DECISION:   (.html)

♦       Feb 1,  ..  CCD:     Klein v. Sussman  ..  In 2018, John Klein and Jill Sussman decided to go into business together to buy residential properties, renovate them, and then rent or sell them.    Each brought their own strengths to the endeavor.    Klein was a carpenter and was willing to front cash.    Sussman was an experienced real estate agent and had access to credit.    They agreed to, and later did, divvy up the responsibilities of their new enterprise accordingly.      Shortly after discussing their new enterprise and identifying their first property, Sussman delivered to Klein a proposed limited liability company agreement.    The name of the business was to be “DOUBLE Jr LLC” or something similar, which was derived from the first initial in Sussman and Klein’s first names. The agreement identified each of them as 50% owners and co-managers of the business.    Days later, Sussman formed Double J.R., LLC (the “Company” or “DJR”) as a Delaware limited liability company.    When the Company purchased its first property later that month, Sussman and Klein each attended the closing and signed several documents identifying themselves as managing members of the Company.      Thereafter, through the Company, Klein and Sussman purchased, renovated, and rented several other properties in Delaware.      In 2019, the parties’ relationship became strained, devolving into a dispute over whether Klein is a member or manager of the Company.    In this litigation over of a fully executed limited liability company agreement identifying Klein as a member or manager of the Company.    Instead, she relies on a limited liability agreement for Double J.R., LLC that she executed in May 2018,     but never mentioned or provided to Klein,     which identifies Sussman as the only member and manager of the Company.     In this opinion, which at the parties’ request addresses only one aspect of the dispute,     the court concludes that Klein is a co-equal member and manager of the Company.  ..  COURT DECISION:   (.html)


♦       Jan 31,  ..  8th Cir.:     Ingram v. Arkansas Dept. of Correction  ..  Ms. Ingram, who describes herself as an African American woman, was employed by the Arkansas Department of Corrections (ADC).     Ms. Ingram was employed as a Program Specialist of “hobby crafts” by ADC from July 12, 2012, to May 12, 2021, at the Tucker Unit, a prison run by ADC.     Part of Ms. Ingram’s role required her to be responsible for the keys to the office doors in the hobby-crafts area and the money designated for hobby crafts.     One weekend, an inmate broke into the hobby-crafts office.     When Ms. Ingram returned to work, a lieutenant’s keys and $359 of hobby-crafts funds in the lockbox were missing from the office.     After some investigation, an inmate confessed to “breaking into the office and taking the money.”     ADC later terminated Ingram for allegedly violating agency policies, unsatisfactory work performance resulting in property damage, falsification of written or verbal statements, and theft of property or mishandling of ADC funds or assets for personal gain.     Up until that time, Ingram had satisfactory employment evaluations.     Ingram then filed suit, claiming wrongful termination based on her race and sex.     To support her claims, Ingram mentioned three instances when ADC treated a male counterpart more favorably than her in related wrongdoings.         First,   ADC did not take disciplinary action against Lieutenant James McCalla, a white male, when he authorized another lieutenant to leave her keys with Ingram, in violation of ADC’s key-control policy.         Second,   ADC did not take disciplinary action against the Tucker Unit’s warden when he did not authorize better locks for the hobby-crafts area doors. But Ingram did not mention the warden’s race or the policy he allegedly violated.         Third,   ADC did not take disciplinary action against Officer Randy Moore after he lowered an inmate through an unlocked grate to retrieve the lost keys.     ... CONTINUED  ..  COURT DECISION:   (.html)

♦       Jan 31,  ..  Fed Cir.:     Lanier v. Air Force  ..  Employed as an electronics mechanic at Robins Air Force Base in Georgia, Mr. Lanier was subjected to routine drug testing on August 26, 2020, during the course of his employment.     He provided a urine sample, which tested positive for methamphetamine, an illicit drug.     In November 2020, Mr. Lanier was given a notice of proposed removal predicated on the positive drug test.     Mr. Lanier denied having used methamphetamine. Asked to explain his positive drug test, he speculated that it may have resulted from his use of medicines he had taken to combat a respiratory infection.     After investigating the issue, the deciding official concluded that the medicines Mr. Lanier said he had taken could not have produced a positive result given the testing protocol used on his sample.     After giving Mr. Lanier several opportunities to respond to the notice of proposed re- moval, the Air Force issued a decision removing him from his position.     Mr. Lanier appealed from the removal action, and on October 20, 2021, a Board administrative judge held a hearing on his appeal. Shortly thereafter, the administrative judge issued an initial decision upholding Mr. Lanier’s removal.     Mr. Lanier then filed a petition for review with the full Board. On June 28, 2022, the full Board denied the petition and affirmed the administrative judge’s initial decision.     Mr. Lanier challenges his removal on several grounds.     ... CONTINUED  ..  COURT DECISION:   (.html)


♦       Jan 30,  ..  6th Cir.:    Triple Canopy, Inc. v. United Gov't Sec. Officers of Am  ..  Triple Canopy is a subcontractor that provides security services to the United States government. In 2018, Triple Canopy began performance on a contract to provide the Federal Protective Service (“FPS”), a federal law enforcement agency, with security personnel at federal facilities across Michigan.     Triple Canopy and the Union are each signatory to a collective bargaining agreement (“CBA”).     Most of the Triple Canopy employees contracted to FPS were armed personnel known as Protective Security Officers (“PSOs”).     Triple Canopy hired PSO Mr. Letts in 2016. At the time of the relevant events, Letts was contracted to FPS at the Hart-Doyle-Inouye Federal Center in Battle Creek and represented by the Union.     On November 24, 2020, Mr. Letts was posted at the East Manchester guard booth, where his job was to check the credentials of employees entering the premises.     When FPS Commander Chad Fraley approached the guard booth in his patrol car, he observed Letts “seated in a chair with his head leaning back against the glass and his eyes closed.”     Fraley filed a Contractor Deficiency Notification with Triple Canopy and requested Letts be relieved of his post.     After investigating the incident, including taking statements from Letts and Fraley, Triple Canopy terminated Letts on January 14, 2021 for sleeping on duty––an offense for which Triple Canopy had a zero- tolerance policy.     The Union filed a grievance later that month. After completing the grievance procedure, it appealed to arbitration.     The questions the parties submitted to the arbitrator were “Did Triple Canopy have ‘just cause’ to terminate the Grievant? If not, what shall be the remedy?” Neither party objected to that framing of the dispute, although Triple Canopy seems to have argued that the matter was outside the scope of arbitration.     In its post-hearing brief, Triple Canopy stated, “At issue is a credibility determination whether committed the terminable offense of sleeping on duty. . . . Whether Letts was sleeping is the only issue in the instant matter.”  ..  COURT DECISION:   (.html)

♦       Jan 30,  ..  MSPB.:     Wilson v. Small Business Administration  ..  The appellant occupied a GS-14 Supervisory Administrative Specialist position with the agency’s Office of Disaster Assistance, Administrative Services Center, in Herndon, Virginia. On May 21, 2019, the appellant suffered a compensable injury and began a prolonged leave of absence.     She had surgery on June 19, 2019, and continued to receive follow-up care.     On September 3, 2019, the appellant’s physician cleared her to return to work with restrictions.     However, the appellant did not return to duty. The appellant requested a reasonable accommodation.     She also requested various combinations of sick leave, annual leave, and leave without pay (LWOP) to cover her absences, but in each case her supervisor denied her requests, apart from requests to cover scheduled appointments.    
      By the time the appellant returned to work on January 6, 2020, she had accumulated 400 hours of absence without leave (AWOL) on the following dates:
  September 9, 13, 23, 25-26,   and 30, 2019; October 5, 7, 9, 11, 14-18, 21-25,   and 28-31, 2019; November 1, 5-6, 8, 12-15, 18-20, 22, 25,   and 29, 2019; December 5-6, 11, 13, 16, 26-27   and 30, 2019; and January 3, 2020.
      On March 2, 2020, the agency removed the appellant based on charges of:   (1) delay, failure, or refusal to follow the legal instruction or direction of the supervisor or other agency manager in authority; and   (2) AWOL.   Both charges contained nine specifications, broken down by pay period, and were based on the same dates listed above.     The appellant filed a Board appeal raising numerous affirmative defenses, including discrimination based on disability (both reasonable accommodation and disparate treatment theories), sex, and race, whistleblower reprisal, and retaliation for filing equal employment opportunity (EEO) and Office of Inspector General (OIG) complaints.  ..  MSPB DECISION:   (.html)


♦       Jan 29,  ..  8th Cir.:    Ingram v. Arkansas Dept. of Correction  ..  Ms. Ingram was employed as a Program Specialist of “hobby crafts” by ADC from July 12, 2012, to May 12, 2021, at the Tucker Unit, a prison run by ADC.     Part of Ingram’s role required her to be responsible for the keys to the office doors in the hobby-crafts area and the money designated for hobby crafts.     One weekend, an inmate broke into the hobby-crafts office.     When Ingram returned to work, a lieutenant’s keys and $359 of hobby-crafts funds in the lockbox were missing from the office.     After some investigation, an inmate confessed to “breaking into the office and taking the money.”     ADC later terminated Ingram for allegedly violating agency policies, unsatisfactory work performance resulting in property damage, falsification of written or verbal statements, and theft of property or mishandling of ADC funds or assets for personal gain.     Up until that time, Ingram had satisfactory employment evaluations.     Ingram then filed suit, claiming wrongful termination based on her race and sex.     To support her claims, Ingram mentioned three instances when ADC treated a male counterpart more favorably than her in related wrongdoings.     First, ADC did not take disciplinary action against Lieutenant James McCalla, a white male, when he authorized another lieutenant to leave her keys with Ingram, in violation of ADC’s key-control policy.     Second, ADC did not take disciplinary action against the Tucker Unit’s warden when he did not authorize better locks for the hobby-crafts area doors. But Ingram did not mention the warden’s race or the policy he allegedly violated.     Third, ADC did not take disciplinary action against Officer Randy Moore after he lowered an inmate through an unlocked grate to retrieve the lost keys. Ingram also failed to mention Officer Moore’s race or the policy he allegedly violated.     The district court dismissed Ingram’s complaint because “he facts . . . do not give rise to an inference that Ms. Ingram was meeting her employer’s legitimate expectations because keys and funds for which Ms. Ingram was responsible were stolen from the hobby crafts area.”     Additionally, the district court found that “the circumstances . . . do not give rise to an inference of discrimination” because Ingram failed to allege she was similarly situated to other employees.     This appeal followed.  ..  COURT DECISION:   (.html)

♦       Jan 29,  .. FLRA:  Consumer Financial Protection Bureau v. NTEU  ..  Statement of the Case        The grievant’s supervisor met with the grievant and presented him with a letter of reprimand without first giving him an opportunity to explain his behavior.  The Union filed a grievance and the matter proceeded to arbitration.        The Arbitrator considered Article 37, Section 1 of the parties’ CBA, which provides that “disciplinary actions will be taken only for such cause as will promote the efficiency of the federal service.”     The Arbitrator interpreted that provision as requiring a “pre-disciplinary hearing . . . before the Agency has reached its disciplinary decision.”     Thus, the Arbitrator determined, the Agency may not “hold a disciplinary meeting with an employee and, in same meeting, present the employee with predetermined discipline.”     According to the Arbitrator, “at a minimum, the Agency should have provided the grievant notice and an opportunity to present his side of events and their context.”     Further, the Arbitrator stated “there must be a decent interval following the investigatory meeting to permit the Agency to consider the employee’s explanation or defense before any disciplinary meeting, if one is to be held.”       The Arbitrator concluded the Agency violated Article 37, Section 1 by “failing to afford the prior opportunity to be heard.”     The Arbitrator then directed the Agency to, among other things, withdraw and destroy the letter of reprimand, and remove all relevant documentation from the grievant’s official personnel folder and managers’ formal files.       The Agency filed exceptions to the award,     and the Union filed its opposition to the Agency’s exceptions.      ..  FLRA DECISION:   (.html)   (.pdf)

♦       Jan 29,  .. FLRA:  Homeland v. AFGE  ..  I. Statement of the Case     The grievant, a border patrol canine officer, was involved in two incidents stemming from motor‑vehicle pursuits, one of which resulted in two fatalities.     Following the second incident, the Agency issued the grievant a letter revoking the grievant’s law‑enforcement authority and firearm authorization.     The revocation letter stated that the grievant would perform administrative duties – making the grievant ineligible for overtime – pending an investigation into whether the grievant committed misconduct.     As relevant here, the Agency’s Use of Force Handbook permits the Agency to temporarily revoke an employee’s law‑enforcement and firearm authorities if there is “evidence of . . . behavior that indicates . . . the individual may be a danger to themselves or others.”     The Union filed a grievance alleging the Agency violated the parties’ agreement and the Use of Force Handbook by revoking the grievant’s law‑enforcement authority and placing the grievant on an indefinite administrative detail.     The grievance went to arbitration.     At the time of the arbitration hearing, the Agency’s investigation remained open, and the grievant’s administrative detail exceeded ten months.     The parties did not stipulate to an issue and, therefore, the Arbitrator framed the issues as:     (1) “whether the Agency violated the ” by suspending “the grievant’s . . . law-enforcement authority;”     (2) “whether the Agency committed an unjustified and unwarranted personnel action by unreasonably delaying its investigation after” suspending the grievant’s law-enforcement authority; and     (3) “if so, what is the remedy?”     ... CONTINUED      ..  FLRA DECISION:   (.html)   (.pdf)


♦       Jan 26,  ..  CCP.:     Wheatley v. Pyramid Hotel Group  ..  Wesley Wheatley (Claimant) has petitioned this Court to review an adjudication of the Workers’ Compensation Appeal Board (Board).     I. BACKGROUND     In October 2018, Claimant was employed as a cook by Pyramid Hotel Group (Employer). He suffered an injury that resulted in an aggravation of his preexisting asthma, preexisting Type 2 diabetes, and ultimately resulted in diabetic ketoacidosis. Claimant was hospitalized for five days, and Claimant’s private healthcare carrier (Insurer) covered the costs of his hospitalization and treatment.     Subsequently, Claimant filed a claim petition pursuant to the Workers’ Compensation Act (the Act). On May 13, 2020, the WCJ granted his claim petition, found that he had sustained a work-related injury, and ordered Employer to pay Claimant total disability benefits at the weekly rate of $773.33 from October 8, 2018, through October 28, 2018; partial disability benefits at the weekly rate of $520.00 from October 28, 2018, through October 8, 2019; and Claimant’s reasonable and necessary medical expenses related to his work-related injury.     The WCJ suspended partial disability benefits as of October 8, 2019, and terminated Claimant’s benefits concerning his work-related aggravation of his preexisting diabetic condition and work-related ketoacidosis as of March 28, 2019.     Employer remained liable for Claimant’s ongoing medical expenses for treatment of the aggravation of his preexisting asthma.     On August 3, 2020, Claimant demanded payment for the costs of his hospitalization as constructive trustee for Insurer. Shortly thereafter, on August 24, 2020, Claimant filed a penalty petition asserting unpaid medical bills, an assertion Employer answered and rejected.     II. ISSUE     Mr. Wheatley (Claimant) has petitioned this Court to review an adjudication of the Workers’ Compensation Appeal Board (Board), which affirmed the decision of the Workers’ Compensation Judge (WCJ), denying Petitioner’s penalty petition.     Claimant contends that he is entitled to direct compensation of his reasonable, necessary, and related medical expenses, including hospital bills.  ..  COURT DECISION:   (.html)

♦       Jan 26,  ..  6th Cir.:     Zandvakili v. Univ. of Cincinnati  ..  Plaintiff Mr. Zandvakili, a native of Iran and a tenured professor at the University of Cincinnati’s Lindner College of Business.     Mr. Zandvakili has spent his career as an economics professor at the University’s Lindner College of Business. He was born in Iran and emigrated to the United States at fifteen. He earned a Ph.D. in economics at Indiana University in 1987 and was hired as an assistant professor in the Department of Economics by the University. In 1993, he became a naturalized U.S. citizen and was granted tenure by the University in 1999. His work focuses on inequality and unconscious bias.     Mr. Zandvakili’s curriculum vitae demonstrates that he has been a major contributor to the University. He served as the Department Head of Economics, Director of the Applied Economics Research Institute, and Director of Graduate Studies in economics. He also served as an Alumni Liaison, arranged notable speaker events, and established numerous connections in the local business community. He published widely and is known for an inequality measurement, the Maasoumi-Shorrocks-Zandvakili Index or MSZ. He updates a textbook yearly that brings in revenue for the business college.     On March 16, 2012, Illinois State University offered Zandvakili a tenured Full Professor position with a base salary of $180,000. As a member of a collective bargaining unit for university professors, Zandvakili asked the University to match the offer pursuant to Article 15, which entitles members to request an increase to their pay to match a “bona fide offer” from another university. Zandvakili’s salary at the time was $118,529. In accordance with policy, Zandvakili submitted a request to Defendant David Szymanski, Dean of the College of Business. Szymanski denied the request on the grounds that a mere offer was insufficient to obtain a raise unless the candidate also demonstrated excellence on a national level.     Szymanski left the University in April 2018. Just before he departed, Szymanski approved an Article 15 raise for US-born David Brasington, who was a tenured professor in Zandvakili’s department. In support of the raise, Szymanski explained that “Brasington is an internationally recognized researcher, ranking in the top 12th percentile . . . . Without an adequate salary adjustment, we may lose him to another university.” Brasington’s salary rose from $151,373 to $186,000.     After Szymanski departed, Defendant Nicolas Williams became Interim Dean of the College of Business beginning in May 2018. During Williams’s tenure, Zandvakili sought several leadership positions. Of relevance to this appeal is the position of Director of Master of Arts in Human Resources (MA-HR). Zandvakili emailed Williams to express his interest in the position. Although the position was not yet open, Williams responded the next day that the position had already been filled. Notably, the position was filled without a public announcement, which the University states is typical and Zandvakili says is not.     Zandvakili believed that he was denied the opportunity to apply for the MA-HR position because of his national origin and in retaliation for complaints he had made about alleged discrimination. On July 20, 2018, Zandvakili communicated directly with Williams about the perceived discrimination and retaliation. He filed a formal complaint with the University’s Office of Equal Opportunity and Access (OEOA) on July 25, 2018.     Plaintiff Mr.Zandvakili sued the University of Cincinnati and three individuals alleging national- origin discrimination and retaliation.      ..  COURT DECISION:   (.html)


♦       Jan 25,  ..  3rd Cir.:    Gladden v. Ambler Healthcare Group  ..  Gladden worked for Ambler Healthcare Group (Ambler) as a dietary aide from August 2019 until he was terminated on January 4, 2021, after failing to complete several job responsibilities during his shift the night before.     Gladden admits he left his shift early and asked one of his co-workers to finish his work.     Gladden had previously received verbal and written discipline related to his attendance, job performance, and interactions with co-workers.     Each time, Gladden was warned that he faced further disciplinary action—up to termination of his employment—if he continued to violate Ambler’s policies.     Despite these repeated violations, Gladden claims he was terminated only after he complained about a fellow dietary aide calling him a “monkey.” He testified that this co- worker did so three times, though he never reported the epithets to Ambler.     One of these instances occurred during a “heated” argument in which Gladden called that same co- worker a “murderer.”     In response to this altercation, Gladden’s direct supervisor and Ambler’s administrator held a joint meeting with Gladden and his co- worker, warning them not to engage in similar behavior again. Both employees admitted wrongdoing and “promised to work together going forward.”     Gladden admits that the co-worker never again called him a monkey after this meeting.     Gladden sued Ambler under Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act (PHRA), asserting three causes of action: race discrimination, retaliation, and hostile work environment.     To prevail on his hostile work environment claim, Gladden had to produce evidence to support five elements: (1) he suffered “intentional discrimination because of his . . . race”; (2) “the discrimination was severe or pervasive”; (3) “the discrimination detrimentally affected” him; (4) “the discrimination would detrimentally affect a reasonable person in like circumstances”; and (5) “the existence of respondeat superior liability.” Castleberry v. STI Grp., 863 F.3d 259, 263 (3d Cir. 2017).     ... CONTINUED  ..  COURT DECISION:   (.html)

♦       Jan 25,  ..  Fed. Cir.:    Erb v. Treasury  ..  Mr. Erb held the position of Intelligence Research Specialist with Treasury’s Financial Crimes Enforcement Network (FinCEN), Intelligence Division.     On March 4, 2020, Treasury notified Mr. Erb that he would be removed from his position, charging him with   (1) falsifying government records for allegedly reporting false information on his timecard over several days in 2018 and   (2) failing to follow supervisory instructions in 2018 in which Mr. Erb did not comply with a directive from his supervisor to serve as acting director.     Issues with Mr. Erb’s conduct arose well before these 2018 incidents. Ryan Crosby, Mr. Erb’s supervisor of several years, offered testimony directed to these issues at a hearing before the administrative judge.     In Mr. Crosby’s recounting, he had concerns with Mr. Erb’s timecard submissions “almost from the first day that Mr. Crosby came to know that Mr. Erb would be on his team.”     Mr. Erb’s prior supervisor had warned Mr. Crosby “that there were indications that Mr. Erb may be involved in time card fraud.”     Mr. Crosby testified that, while supervising Mr. Erb, he (1)   frequently noticed errors and omissions in Mr. Erb’s submitted timecards,   (2) repeatedly admonished Mr. Erb to resolve these inaccuracies, and   (3) conducted multiple timecard audits because Mr. Erb had exhausted his leave.     Despite having been provided policies and procedures for timecard submissions, Mr. Erb routinely miscoded his timecards, for example, using sick leave when he should have used annual leave or recording more hours worked than he was entitled to record.     In one instance, Mr. Crosby confronted Mr. Erb about a day in which Mr. Erb claimed sick leave but was seen in a social media post to be on vacation. On other occasions, Mr. Erb booked vacations even though he had no annual leave available and had to request advances on his annual leave.     Mr. Crosby recalled that in Mr. Erb’s evaluation for fiscal year 2017, Mr. Crosby initially included a comment that Mr. Erb needed to pay closer attention to his timecard submissions. Mr. Erb entreated Mr. Crosby to strike this comment, and Mr. Crosby agreed to remove it to help Mr. Erb improve his image at the agency.     In response to concerns about Mr. Erb’s time and attendance, the Treasury Inspector General (TIG) began investigating Mr. Erb’s time and attendance records and facility access records from October 15, 2017 to October 13, 2018.     The resulting report documented numerous instances where   (1) Mr. Erb submitted and validated in-office work time but never accessed a FinCEN facility and   (2) telework login records indicated that Mr. Erb engaged in little or no telework activity.     Based in part on the investigation and the TIG’s report, on October 17, 2019, Treasury proposed removing Mr. Erb from his position based on two charges:   (1) falsification of a government record and   (2) failure to follow supervisory instruction.     The evidence that Treasury considered included, in addition to the TIG’s report, seven exhibits cited in that report, six memoranda encompassing interviews with witnesses and Mr. Erb, Mr. Erb’s timecard and facility access records, and a spreadsheet documenting the times that Mr. Erb remotely logged into the telework system.     The notice of proposed removal lodged eleven specifications 1 for the falsification charge.     For each specification, Mr. Erb submitted a timecard indicating that he worked in the office or, in one specification, engaged in a full day of telework.     But for each of these specifications, Treasury found that he did not physically report to the FinCEN facility and engaged in little or no telework.     As for the second charge, the notice of proposed removal put forth a single specification in which Mr. Erb’s immediate supervisor had assigned him the role of acting director for two days and Mr. Erb immediately reassigned the role to another colleague without his supervisor’s approval and departed the office on an unexcused absence.     On March 4, 2020, after Mr. Erb provided written and oral responses to the proposed removal, Treasury issued a decision removing Mr. Erb from his position.     The decision determined that a preponderance of the evidence supported ten of the eleven specifications (Specifications 2 through 11) of the falsification charge and the sole specification of the failure-to-follow-instruction charge articulated in the notice of proposed removal.     In determining the appropriate penalty, Treasury’s decision considered the nature and seriousness of the offenses, concluding that both charges were “inimical to Mr. Erb’s position and the FinCEN mission” and that “his behavior towards supervisor undermined management’s capacity to maintain employee efficiency and discipline.”     Emphasizing the gravity of Mr. Erb’s offenses, the decision explained that “ misconduct went to the very core of responsibilities as an Intelligence Research Specialist and called into question his reliability, veracity, trustworthiness, and willingness to perform his duties.”     Mr. Erb, as Treasury noted, was “on notice about the conduct in question” and “on notice about how to properly code and validate time card.”     According to Treasury, a lesser sanction would not be appropriate because “the seriousness of the conduct underlying the charges and the repetitive nature of conduct (including multiple specifications for one charge alone) support a penalty of removal.”     Treasury further highlighted “that the penalty of removal under the circumstances outlined in this decision was consistent with the FinCEN Table of Penalties” and that “a sanction less than removal would have no effect in changing Mr. Erb’s behavior and would not promote the efficiency of the federal service.     Mr. Erb appealed Treasury’s removal action.  ..  COURT DECISION:   (.html)

♦       Jan 24,  ..  3rd Cir.:    Summers v. Childrens Hospital of Philadelphia  ..  Andrea Summers started working as a nurse’s aide at the Children’s Hospital of Philadelphia in 2000. Over the following seventeen years, she was disciplined ten times for misbehavior ranging from lateness and absences to rudeness, insubordination, and failure to finish tasks.     Holly Sabatino started supervising Summers in 2017. In October 2019, Sabatino gave her another discipline notice for rudeness. Then, in July 2020, Summers called the hospital’s compliance hotline and complained that Sabatino and another supervisor, Tracy Widmer, treated black employees worse than white ones. Because Summers is a black woman, she felt that she suffered unfair treatment. She also objected that another leader at the hospital had used the n-word the month before. That person was fired for using that word, but Summers still claimed that this incident suggested a pattern of discrimination at the hospital. And she complained that black nurse’s aides had been told during COVID not to take breaks in the nurses’ locker room, but she had seen a white employee often use the space.     Apart from these incidents, she could give no specifics.     That October, Sabatino twice asked Summers to give patients medicines. Each time, Summers ignored her, threw her hands up in the air, and walked away. When Sabatino later met with Summers to discuss her behavior and to give a written discipline notice for rudeness, Summers stood up, tore the notice in half, threw the shreds, and left. Though the hospital could have fired her for her defiance, it instead put her on paid leave for a week and a half. Then Sabatino gave her another copy of the discipline notice, a final warning, and a plan requiring her to improve or be fired. Summers signed all three documents.     Three days later, Summers came back to work. That day, she was assigned to watch a patient constantly. She asked for and was approved to take a half-hour break but did not return until an hour and forty-six minutes later. Because Summers had been absent without permission for more than an hour, Sabatino and Widmer decided to fire her. Summers now sues the hospital under 42 U.S.C. § 1981, claiming that it fired her because of her race.  ..  COURT DECISION:   (.html)

♦       Jan 24,  ..  6th Cir.:     Laible v. Lanter  ..  On August 7, 2020, a federal task force led by the ATF, with the assistance of CPD and the Northern Kentucky Drug Strike Force (NKDSF), executed state warrants to apprehend Mason Meyer in connection with a drug and gun trafficking investigation in Cincinnati, Ohio. Donald Scalf, a CPD sergeant, had been deputized to the ATF since August 2015.     Scalf was assigned to surveil Meyer under the ATF’s operational plan for the arrest. On the day of the incident, Meyer left his home driving a vehicle containing two other people and a suspected illegal weapon. CPD was to “conduct a felony traffic stop,” which contemplated pursuit, per its standard operating procedures should Meyer escape an attempted traffic stop.     CPD Sergeant Timothy Lanter attempted a traffic stop, but Meyer sped off.     Lanter pursued and requested CPD Officer Brett Thomas’s assistance. Thomas responded in a separate vehicle. Scalf supervised the pursuit via radio as a deputized ATF agent and declared himself the Officer-in-Charge (OIC) pursuant to CPD policy.     The ATF Resident in Charge (RAC), Frank Occhipinti, assisted Scalf by using cell phone tracking data to confirm that Meyer was in the vehicle. Shortly thereafter, radio communication shifted from a CPD/ATF joint radio channel to a CPD-only channel.     The officers chased Meyer through parts of Cincinnati, with all three vehicles reaching speeds over 100 miles per hour. Scalf authorized Lanter’s and Thomas’s continued pursuit of Meyer across the bridge into Covington, Kentucky. Meyer and the CPD vehicles crossed into oncoming lanes of traffic on the bridge and continued the chase through downtown Covington.     At one point, Lanter authorized Thomas to drive the wrong way down a one-way street without obtaining clearance from Scalf.     The chase proceeded across another bridge into Newport, Kentucky. Meyer eventually ran a red light, lost control of the vehicle, and crashed into the sidewalk patio of the restaurant where Raymond and Gayle Laible were dining.     The Laibles were directly hit by the vehicle, and Steven and Maribeth Klein, who were walking by, were struck by debris and thrown several yards onto the asphalt. Gayle died on the scene and Raymond was taken to the hospital where he was later pronounced dead. The Kleins experienced multiple, severe injuries. Meyer was taken into custody and charged with two counts of murder, and two counts of endangerment and fleeing from the police.     The executor of the Laibles’ estate and the Kleins filed this lawsuit in August 2021 in Campbell County Circuit Court. The lawsuit alleges personal injury, negligence, wrongful death, and negligent supervision claims against Scalf, Lanter, Thomas, Meyer, and the City of Cincinnati.     ... CONTUNUED  ..  COURT DECISION:   (.html)

♦       Jan 24,  ..  3rd Cir.:     Kebe v. Washington Township School District  ..  Khadijah Muhammad Kebe sued the defendants relating to incidents that occurred as she attempted to transfer into their public school system to work as a teacher, claiming that its HR department had discriminated and retaliated against her on the basis of her race and religion.     On October 19, 2022, on the defendants’ motion, and without granting the hearing that Muhammad Kebe had requested, the District Court dismissed the complaint without prejudice. The District Court explained that Muhammad Kebe had failed to allege facts from which it could be inferred that defendants discriminated against her, harassed her, or retaliated against her, but gave her an opportunity to amend her complaint within 30 days. On November 18, 2023, Muhammad Kebe filed a motion “for a proper appeal” and “also a reconsideration of an in person hearing to allow argument of the case.”     The District Court treated that filing as a motion for reconsideration and denied it on January 10, 2023. On February 24, 2023, Muhammad Kebe again requested “an appeal for case.”     We first consider our jurisdiction over this appeal, which turns on whether Muhammad Kebe filed a timely notice of appeal from a final or otherwise immediately appealable order.     As a preliminary matter, we must determine when she filed a notice of appeal. And we conclude that she filed one on November 18, 2023, and another on February 24, 2023, even though the former, unlike the latter, was not docketed as a notice of appeal.     We next consider the nature of the October order. Our appellate jurisdiction is limited to reviewing final orders of the district courts, absent exceptions that do not apply here, and the District Court entered that dismissal without prejudice, which, as a general matter, indicates that an order is not final.     However, even if the October order was not final when it was entered, it became final and appealable when Muhammad Kebe effectively elected to stand on her complaint because she did not amend it within the time provided by the District Court and filed her November notice of appeal instead.     Because Muhammad Kebe’s November notice of appeal was filed within 30 days of when the District Court entered its October order, it was timely filed as to that order, so we have jurisdiction under 28 U.S.C. § 1291 to review the order dismissing the complaint. Our review of that order is plenary.     We do not have jurisdiction to review the District Court’s subsequent order denying reconsideration, however, because a new or amended notice of appeal was necessary to challenge that order, even if it was a ruling on a true motion for reconsideration, and the February notice of appeal that Muhammad Kebe filed was not timely filed as to the January order.     Upon review of the order dismissing the complaint, we agree with the District Court that, although Muhammad Kebe sufficiently pleaded that she was a member of protected classes by virtue of her race and religion, she did not allege facts from which it could be inferred that she was subject to an adverse action or that employees who were not members or her race or religion were treated differently.     She alleged only that she had no choice but resign from her position given the tension she felt from HR members who were unhelpful during her onboarding process. ... CONTINUED.  ..  COURT DECISION:   (.html)


♦       Jan 23,  .. FLRA:  AFGE v. AirForce   ..     The grievant signed up for a Saturday overtime shift.  On the preceding Friday, she took leave for a medical appointment.  The Agency denied the overtime based on an alleged past practice of denying weekend overtime to employees who missed work on the day “immediately preceding” the overtime shift.       The Union filed a grievance alleging the Agency violated Article 8, Section A(1) (Article 8) of the local agreement, when it “punished by not allowing her to work for circumstances beyond her control,” and caused the grievant to lose money.     As relevant here, Article 8 states:  “Overtime will not be assigned as a reward or penalty.”       The parties did not stipulate an issue.  The Arbitrator framed the issue as whether the Agency “‘punish’ the rievant when it denied her overtime on a Saturday after she was absent from work on the preceding Friday.”     The Arbitrator also framed two sub‑issues:  (1) “was the denial of the overtime a ‘punishment’ for missed work;” and (2) “ there an established past practice governing this issue.”       On the first point, the Arbitrator found the Union presented “no evidence” to support its allegation that the Agency “punish” the grievant when it denied her overtime.       On the second point, the Arbitrator determined the Agency demonstrated the denial was based on a “past practice of denying overtime during a weekend if the employee misses work immediately preceding the needed shift.”     The Arbitrator found the Agency supported its past-practice assertion by submitting a copy of a prior arbitration award (the Sims award) with facts “nearly identical to the case at hand.”     The Arbitrator determined that the Sims award – and the witness testimony described therein – demonstrated the Agency had “a long standing, unspoken rule” of denying weekend overtime if the requesting employee is absent for any reason on the preceding Friday.     Therefore, the Arbitrator found “the issue has been previously resolved in an identical arbitration.”     Consequently, the Arbitrator found the Agency did not violate Article 8, and he denied the grievance.     On June 28, 2023, the Union filed exceptions to the award.     On July 31, the Agency filed an opposition to the Union’s exceptions.  ..  FLRA DECISION:   (.html)   (.pdf)

♦       Jan 22,  ..  ISC:    State ex rel. Raoul v. Elite Staffing  ..  The State alleged in its complaint that Colony Display (Colony) hired the staffing agencies to supply the temporary workers it needed. Colony, which installs fixtures and displays for home improvement and retail businesses, relies heavily on temporary workers, who form the majority of Colony’s workforce.     At Colony’s request, the State alleged, the staffing agencies agreed to fix the wages for their employees who worked for Colony at below- market rates, and they agreed not to hire each other’s employees. Colony helped the staffing agencies enforce their agreement. The State claimed the alleged conduct constituted an agreement between competitors to fix the price paid for services and therefore that it had violated section 3(1)(a) of the Illinois Antitrust Act.     The defendants filed a motion to dismiss the complaint --claiming that the complaint did not state a cause of action because the Illinois Antitrust Act provides that services otherwise subject to the act “shall not be deemed to include labor which is performed by natural persons as employees of others”     The circuit court denied the motion but certified for interlocutory review the following issue:              ]]              applies to the Illinois Antitrust Act as a whole and thus excludes all labor services from the Illinois Antitrust Act’s coverage.     ... CONTINUED  ..  COURT DECISION:   (.html)

♦       Jan 22,  ..  SCA.:    The Eatons v. Louie, Rice, and Goodson  ..  The ALT/ISS classroom was ordinarily supervised by Officer Stinson, and occasionally by Officer Garner, who were certified police officers assigned to GCHS as school-resource officers.   On April 7, 2015, Officer Stinson and numerous teachers were absent from GCHS, and Rice was at a work-related conference in another city.   Goodson initially assigned Officer Garner to supervise the students in the ALT/ISS classroom; however, Goodson assigned Ester to take over the ALT/ISS- classroom supervision because he needed Officer Garner's assistance in supervising the hallways in response to threats of impending violence among multiple male students.   Goodson had also requested and received additional local law-enforcement presence at GCHS to address the threat.     T.F. and C.F. are sisters who were in the ALT/ISS classroom on April 7.   Around lunchtime, Goodson placed T.Y. in the ALT/ISS classroom, as a result of her being tardy to class, until he had the opportunity to speak with her to obtain more information.   Although T.Y. told Goodson that it was not a good idea to put her in that classroom with T.F. and C.F., Goodson did not believe that there was a serious potential for physical violence between those students.   When T.Y. entered the ALT/ISS classroom, she and C.F. had a brief argument.   Ester had T.Y. sit in a chair next to her desk to keep the students separated.     Approximately 20 minutes later, Goodson brought four or five additional students with whom T.Y. apparently had issues into the ALT/ISS classroom.   Goodson and Officer Garner checked the ALT/ISS classroom every three to five minutes while patrolling the hallways, and Ester never reported any concerns to them.     At some point, C.F., T.F., and another student, S.W., rushed toward Ester and T.Y.     Ester stood up, and they began striking her in the face and head.   Ester briefly lost consciousness, and she was transported to an emergency room for treatment.   Ester suffered, among other injuries, severe bruising, swelling in her arm, a torn rotator cuff, and hearing loss in her right ear.     The plaintiffs sued the defendants, asserting claims of negligence; negligent and wanton hiring, supervision, and training; and loss of consortium.   The plaintiffs alleged, generally, that the defendants had violated the Board's policies by placing unauthorized students in the ALT/ISS classroom and by assigning Ester to supervise that classroom.   The defendants eventually moved for a summary judgment, asserting, among other grounds, that they were entitled to State-agent immunity.  ..  COURT DECISION:   (.html)

♦       Jan 22,  ..  6th Cir.:    Yao v. Oakland Univ  ..  Following the denial of tenure in Oakland University’s school of nursing, Dr.   Lan Yao sued the university, asserting claims of race and national origin discrimination, as well as retaliation for filing a workplace complaint.   These theories fail.   Yao has not identified a similarly situated employee who received more favorable treatment than she, dooming her discrimination claims.   Nor can she demonstrate a causal connection between her protected activity and the university’s allegedly retaliatory action, a fact fatal to her retaliation claim.   Accordingly, we affirm the award of summary judgment in the university’s favor.     Like most departments in institutions of higher learning, Oakland University’s nursing school employs a process for granting tenure to faculty members.   Professors at the university initially serve in term-limited positions without job security, after which they are eligible for tenure.   A tenure applicant assembles a dossier documenting her qualifications.   The application is then measured by three criteria: scholarship, teaching, and professional service.   Of these, scholarship, especially “publications that have been critically evaluated,” is the most important factor.   Published work measures the candidate’s contribution to knowledge in a scholarly field.     Two committees review the application.   First is the Nursing Committee, followed by the Faculty Committee.   The latter committee makes a tenure recommendation to the university based on a review of the candidate’s qualifications.   At the final stage, the university’s board of trustees, after receiving input from the provost and president, issues a final tenure determination.   Those who unsuccessfully apply for tenure are not re-employed full time.     Now consider Yao’s journey through this process.   Hailing from China, Yao was hired as an assistant professor in the nursing school.   Following a few years of service by Yao, the board of trustees approved her reappointment to a final two-year term as an assistant professor, after which she would be eligible for tenure.   Although the Nursing Committee supported Yao’s reappointment, it noted that she had produced no work for publication and “highly recommend that Dr.   Yao submit and have published several empirically-based manuscripts in peer-reviewed journals” before her next review.   Yet at the time of Yao’s tenure review, she had co-authored only one peer-reviewed article since her reappointment.   Both the Nursing Committee and the Faculty Committee determined that Yao did not meet the school’s criteria for scholarship and research.   In turn, each committee voted to deny Yao tenure, a decision later ratified by the board.   Yao requested a second review.   Her efforts, however, again proved unsuccessful—she was denied tenure a second time.     After the university notified Yao that her employment would terminate at the end of her contract, Yao filed discrimination charges with the Equal Employment Opportunity Commission (EEOC), alleging both race and national origin discrimination and retaliatory conduct in violation of Title VII of the Civil Rights Act of 1964.   She later filed this suit.   Ultimately, the district court awarded summary judgment in the university’s favor.   To the district court’s eye, Yao failed to show that she was treated worse than similarly situated non-protected tenure candidates, defeating her discrimination theories.   Likewise, the court held, Yao could not establish a causal connection between her first EEOC complaint and her eventual firing, undermining her retaliation claim.   Yao’s timely appeal followed.  ..  COURT DECISION:   (.html)


♦       Jan 19,  ..  CCP:     DOC v. PSCOA  ..  Since August 6, 2012, Mr. Kerschner has been employed by The Department of Corrections (DOC) as a Corrections Officer I, most recently at the State Correctional Institution at Frackville, Pennsylvania (SCI-Frackville). Mr. Kerschner is a member of the bargaining unit known as the Pennsylvania State Corrections Officers Association (PSCOA). PSCOA and DOC are parties to a collective bargaining agreement (CBA) covering a bargaining unit consisting of certain employees of DOC and the Commonwealth of Pennsylvania, Department of Human Services.     The operative CBA, which took effect on July 1, 2017, contains an arbitration procedure for claim requests under the HLA. The parties agreed that all disputes relating to a corrections officer’s eligibility for benefits under the HLA, including an appeal from DOC’s denial of HLA benefits, would be resolved through binding arbitration.     The parties also agreed that the arbitrator “shall be bound by judicial opinions interpreting the .”     On January 23, 2022, Mr. Kerschner worked his regular 8:00 a.m. to 4:00 p.m. shift at SCI-Frackville. Because Mr. Kerschner lives almost one hour away from SCI-Frackville, he got home from his shift around 5:00 p.m. Five hours later, Mr. Kerschner returned to work a mandated overtime shift at SCI-Frackville from 10:00 p.m. to 6:00 a.m.2 His assignment that evening was to perform a perimeter security check by driving his patrol vehicle around the perimeter of the prison. While patrolling the property, around 4:00 a.m. on January 24, 2022, Mr. Kerschner inadvertently fell asleep at the wheel and crashed his patrol vehicle into a garage.     Mr. Kerschner awoke to someone telling him that an ambulance was on the way. DOC did not discipline Mr. Kerschner for this incident.     Mr. Kerschner suffered a concussion in the accident and, while at the hospital, tested positive for COVID-19.     At the arbitration hearing, Mr. Kerschner testified that since the accident, he has experienced difficulty with concentration, mood swings, and debilitating headaches.     Two days after the accident, Mr. Kerschner treated with his primary care physician, who confirmed that he had suffered a concussion. Two weeks later, Mr. Kerschner treated with a DOC-approved physician, Dr. David Wood, who diagnosed him with post-concussion syndrome. After his HLA claim was denied, Mr. Kerschner stopped treating with Dr. Wood because he could not afford the out-of- pocket costs.     Mr. Kerschner filed a claim for HLA benefits, which DOC denied, finding that he was not injured “in the performance of his duties” as required by Section 1(a) of the HLA, 53 P.S. § 637(a).3 DOC reasoned that because Kerschner fell asleep while driving his patrol vehicle, he could not have been “in the performance of his duties” at the time of the accident, because sleeping on the job is expressly prohibited by DOC’s Code of Ethics4 and punishable by discipline up to and including termination from employment. PSCOA appealed on Mr. Kerschner’s behalf.     On October 7, 2022, following an evidentiary hearing, Arbitrator Frank A. Fisher (Arbitrator) awarded Mr. Kerschner benefits under the HLA. In his Opinion, the Arbitrator concluded that Mr. Kerschner’s injuries were sustained in the performance of his duties as a corrections officer and, therefore, he was entitled to HLA benefits. The Arbitrator found that Mr. “Kerschner’s action in falling asleep while performing the perimeter security check driving a vehicle was not intentional.”    After reviewing the case law cited by the parties, as well as other cases involving claims for HLA benefits, the Arbitrator concluded as follows:         Kerschner’s actions in falling asleep were willfully in disregard of work rule. Quite simply he did not try to fall asleep. As suggested by PSCOA there may be facts where the employee’s actions do establish a willful intention by the employee to stop working and go to sleep, thereby removing from the performance of dut. That is not the case here. While Kerschner’s actions in sleeping here may reflect how well he was performing his duties, they do not alter the fact that he was performing his duties. There is nothing in the itself, or in the case law interpreting it, that allows a denial of benefits based on the quality of the employee’s performance. ]]]         Therefore, the Arbitrator concluded that Mr. Kerschner met his burden of establishing his entitlement to HLA benefits.     DOC now appeals to this Court.     The Department of Corrections (DOC) petitions for review of the October 7, 2022 Arbitration Award, which awarded benefits under the statute commonly known as the Heart and Lung Act (HLA), to Justin Kerschner for injuries he sustained on January 24, 2022.  ..  COURT DECISION:   (.html)

♦       Jan 18,  ..  ScSc:    Cruce v. Berkeley Cnt School Dist  ..  Mr. Cruce became the head football coach and athletic director for Berkeley High School in 2011.   For the 2015 season, he adopted a controversial "no punt" offensive scheme for the football team.   This strategy stirred intense debate among followers of the team and was covered in local and even national sports pages.   The controversy deepened as the team suffered lopsided defeats.   In December 2015, the Deputy Superintendent of the Berkeley County School District (the District) sent Cruce a letter advising him he was being relieved as coach and athletic director and reassigned to a position as a middle school guidance counselor because he had failed to meet certain performance goals.   The District never revealed the reason for Cruce's reassignment to the public.   Cruce requested the District reconsider his reassignment.     On January 7, 2016, Berkeley High athletic trainer Chris Stevens sent an email to forty-five people, including administrators, athletic department employees, and volunteer coaches, questioning the integrity and completeness of student athlete files Cruce had maintained.   In the email, Stevens remarked the filing issues were a potential "liability" to the District.     On January 8, the District Superintendent sent Mr. Cruce a letter upholding his reassignment.   Although Cruce completed the rest of the year at the middle school, he resigned at the end of the school year, noting in his resignation letter how the District had humiliated him and destroyed his career by removing him from his coaching and athletic director positions without any public explanation.     Cruce and his wife sold their home and moved out of state.   He contended he could not find a suitable coaching job–or even a position as a volunteer coach–because of the District's actions.     Cruce later brought this lawsuit against the District, alleging wrongful termination and defamation.  ..  COURT DECISION:   (.html)

♦       Jan 18,  ..  DcDc.:    Fort Myer Construction v. Shrensky  ..  This case arises out of a dispute between movant, Mr. Shrensky, and the business he helped found a half century ago, Fort Myer Construction Corporation.   Until recently, Shrensky was Fort Myer’s executive vice president; the company’s co-founder, Jose Rodriguez, is its president.   Shrensky’s and Rodriguez’s revocable trusts each hold 50% of the company’s voting shares.   And the pair comprises half of the company’s four-person board of directors.     For decades Shrensky and Rodriguez “maintained a close personal friendship throughout their years of running one of the most successful paving and infrastructure contracting companies in the region.” What changed is disputed.   Shrensky contends that Rodriguez’s daughter improperly inserted herself into the company and along with others conspired to oust Shrensky, leading to his termination.     Fort Myer asserts that Shrensky is the one who attempted a power grab, including by forging Rodriguez’s signature on a consent resolution in an effort to gain further authority within the company.   The company alleges that Shrensky also forged Rodriguez’s signature on several other agreements and engaged in other erratic behavior, such as threatening to “burn the company to the ground,” threatening to seek judicial dissolution of the company, and interfering with Fort Myer’s banking relationships.   Fort Myer says that it fired Shrensky because of this misconduct.     What is clear is that Shrensky was fired and litigation ensued. ... CONTINUED  ..  COURT DECISION:   (.html)

♦       Jan 18,  ..  CCP.:    Philadelphia Parking Auth. v. UCBR  ..  On October 29, 2020, Claimant filed an online application for unemployment benefits.   He stated that he began working full time for PPA in February 2015 and was working as a deputy manager of operations when he was terminated by PPA on October 25, 2020, for violating a rule or policy; he disputed that reason.   PPA contested Claimant’s application and attached the termination letter it sent to Claimant.   The letter stated that PPA received an email complaint from a parking patron regarding an incident on October 23, 2020, at PPA’s Philadelphia airport parking facility.   The patron claimed that Claimant had intimidated and refused to allow her to leave after a dispute over her payment.   PPA stated in the letter that it investigated the incident and found the patron’s claim substantiated; it also described a past pattern of similar behavior by Claimant.   The letter informed Claimant that his conduct during the incident violated PPA policy and, combined with his past issues, could not be tolerated by PPA; therefore, his employment was terminated, effective immediately.     On April 8, 2021, the Office of Unemployment Compensation Benefits issued an initial notice of determination denying Claimant’s application.   The determination stated that PPA had provided information establishing that Claimant’s termination was due to his willful misconduct; therefore, he was ineligible for benefits.   Claimant appealed and asserted that the patron incorrectly believed she was entitled to a lower parking rate than she was charged and that he had not violated any PPA rules.   Claimant averred that the patron refused to pay the charged amount and the dispute escalated to the point where Claimant called the airport police.   According to Claimant’s appeal, the police were able to explain the policy to the patron and she ultimately paid the full amount due.     According to Claimant’s appeal, PPA instituted a discount on parking if the patron’s car was parked for 72 hours or longer.   However, the advertisements stated that the discount was available for parking “3 days or more,” which led to patron confusion and arguments if their cars were parked over the course of 3 calendar days but for less than 72 hours, in which case they were not eligible for the discount.     Based on Claimant’s appeal, the Board issued a notice scheduling a telephone hearing before a referee on May 19, 2021, which was subsequently continued to June 21, 2021.   On Claimant’s request, subpoenas were issued to David Tribuiani (Tribuiani) and Kevin Abara, co-workers who both witnessed the incident, and to Jean Claude Kadima Lukusa, Claimant’s shop steward, who could speak to Claimant’s work history and to the incident that led to Claimant’s termination.     At the June 21, 2021, telephone hearing, the referee stated on the record that PPA’s hearing notice had not been returned as undelivered, but PPA did not answer the referee’s phone call and therefore did not participate in the hearing Consistent with his written appeal, Claimant testified that the dispute with the patron began when she disagreed with the charge for her parking and maintained that he had not violated any PPA rules or policies and had not acted with willful misconduct.     Tribuiani participated in the hearing.   He recalled that the patron disputed her parking charge, refused to pay, and, as Claimant averred, did not understand why she was not entitled to the discounted rate.   Tribuiani stated that Claimant tried to explain to the patron why the discounted rate was not available to her and that it could not be changed to give her the discount.   Tribuiani added that Claimant also tried to explain to the patron PPA’s procedure for when a patron has insufficient funds to pay their parking charge, which is that they can pay partially or not at all but must promise to pay within five business days.   Tribuiani recalled that after Claimant called the airport police, the patron ultimately paid the full amount of her charge with a credit card.   Tribuiani stated that based on his observation of the incident, Claimant had not violated any policies or engaged in willful misconduct.     On June 23, 2021, the referee issued a decision and order reversing the original denial and granting Claimant benefits. ... CONTINUED.  ..  COURT DECISION:   (.html)


♦       Jan 17,  ..  CAW.:    City Of Burien, V. Allread  ..  Ms. Allread worked for the City of Burien as executive assistant to the city manager for over eight years. Allread used occasional family leave throughout her employment with the City in order to attend medical and therapy appointments for her young adult son. She worked for multiple city managers during her tenure, the last of whom was Brian Wilson. On July 24, 2020, Wilson presented Allread with a proposed separation agreement and informed Allread that her employment with the City was being terminated.    In May 2022, Ms. Allread filed an amended complaint for damages against the City, alleging that her employment was unlawfully terminated due to her use of protected family leave. The complaint alleged that, in the two years preceding the termination, Wilson had reacted angrily and dismissively in response to Allread’s requests to utilize PFMLA leave. The complaint further alleged that, on June 24, 2020, Allread informed Wilson that an incident had occurred that would require her to use additional family leave. One month later, on July 24, 2020, Allread’s employment with the City was terminated.    Based on these events, Allread alleged that the City had violated the PFMLA “when it retaliated against for taking leave, and, when on notice of intent to take additional protected leave,” it “interfered with her rights by firing her and considering her leave as a negative factor in the decision, and threatening her with retaliation if she made a civil rights complaint.” In addition to asserting that the City had violated the PFMLA, Allread alleged that the termination of her employment constituted wrongful discharge in violation of public policy.    In response to Allread’s complaint, the City acknowledged that Allread had been granted leave to care for her son.    The City denied, however, that Allread had faced retaliation or that her employment had been terminated due to her request for, or her utilization of, such leave.    The City acknowledged that it had met with Allread on July 24, 2020.    However, it characterized Allread’s “separation from the City as a no-cause layoff related to the COVID-19 pandemic.” ... CONTINUED  ..  COURT DECISION:   (.html)

♦       Jan 17,  ..  VCA.:    Walker v. Virginia Department of Corrections  ..  The facts are undisputed. Ms. Walker injured her ankle on June 24, 2019, while working for the Department. Within a month, she filed a claim with the Commission seeking an award for medical benefits in connection with her injury. The Department agreed to pay for medical benefits related to Walker’s injury, so the parties executed an award agreement. In August 2019, the Commission entered a “Medical Only Award Order” adopting that agreement.    Due to her ankle injury, Ms. Walker was restricted to light-duty work from June 24, 2019 to August 1, 2019, from October 17, 2020 to December 17, 2020, and again from May 26, 2021 to July 22, 2021. During these time periods, the Department paid Walker full wages for her light-duty work.    On July 6, 2021, Walker filed a claim requesting a retroactive, continuing award of temporary total disability wage loss benefits starting from the first day she was restricted to light- duty work.1 Walker subsequently filed a letter with the Commission explaining that she was still experiencing pain after being treated by two approved doctors and going to multiple appointments with them over a 23-month period.    She explained that these doctors had misdiagnosed her injuries and that she was finally referred to an orthopedic specialist. That specialist took multiple X-rays and determined that the “tendon in left foot torn” and needed surgical correction.    Walker clarified that she sought “lost time benefits for the amount of time be out of work for surgery and recovery.” Walker completed her surgery, and amended her claim to include an additional request of temporary total disability benefits from the date of surgery, July 23, 2021, through October 4, 2021.    The case proceeded to a hearing before a deputy commissioner.    The Department argued that Walker’s claim, filed two years and twelve days after her injury, was barred by the two-year statute of limitations set forth under Code § 65.2-601.    Walker contended, however, that Code § 65.2-708(C) tolled the statute of limitations and that she could file a claim based on a change in condition up to two years after the Department last paid her full wages for light-duty work, or until July 22, 2023.    The deputy commissioner issued an opinion agreeing with the Department that Walker’s claim was barred by the statute of limitations. Walker appealed the deputy commissioner’s decision to the full Commission, which affirmed the same.    Walker now appeals the full Commission’s decision.    ANALYSIS    The only question for review is whether Walker’s claim was barred by the statute of limitations set out in the Workers’ Compensation Act.    “An issue of statutory interpretation is a pure question of law which we review de novo.”    “When the language of a statute is unambiguous, we are bound by the plain meaning of that language.”    Thus, “we must give effect to the legislature’s intention as expressed by the language used unless a literal interpretation of the language would result in a manifest absurdity.”    CONCLUSION    We hold that the Commission erred in finding that Walker’s claim for temporary total disability benefits was barred by the statute of limitations under Code § 65.2-601 and reverse and remand for further proceedings consistent with this opinion.    Reversed and remanded.  ..  COURT DECISION:   (.html)

♦       Jan 17,  ..  CAV.:    Camann, Jr. v. Commonwealth of Virginia  ..  Just after 1:00 a.m. one morning in September 2020, Deputies Spears and Russell of the Frederick County Sheriff’s Office responded to a report of a man masturbating outside a 7-Eleven convenience store. When Deputy Russell arrived, Mr. Camann was standing on a sidewalk in the parking lot, his back against the side of the store. Deputy Russell was first to arrive. Deputy Spears arrived soon after, and his body-camera footage was introduced into evidence.    Deputy Russell conversed briefly with Mr.Camann before entering the store to interview the customer and employee who had called the sheriff’s office. Deputy Spears engaged in “normal small talk” with Camann while Deputy Russell was in the store. Camann denied any wrongdoing and continued to stand in place. Deputy Russell returned, telling Camann that witnesses claimed to have seen him masturbating.    Camann reacted indignantly, but as he shifted his weight back and forth, Deputy Spears noticed that Camann appeared to be hiding something under his left shoe. After Camann moved his foot enough to offer a glimpse of the aluminum foil underneath, Deputy Spears said, “move your foot, move your foot.” Camann did so, revealing a blue plastic straw and a piece of aluminum foil with burnt residue. From his training and experience, Deputy Spears knew that people commonly “use aluminum foil and plastic straws” to smoke narcotics.    Upon seeing the burnt residue on the aluminum foil, Spears placed Camann in handcuffs.    Deputy Spears read him his Miranda1 rights and subsequently searched his pockets. Spears found more foil and a straw like the one Camann had been hiding under his foot, a cellophane wrapper in Camann’s wallet containing a white powder, and pills in a pill bottle. When asked by Spears about the white powder, Camann said he didn’t know what Spears was talking about and claimed that “someone gave me that wallet.”    Subsequent testing revealed that the white powder was a mixture of fentanyl, a Schedule II controlled substance, and etizolam, a Schedule I controlled substance.   The mixture weighed 0.056 gram. One tablet in the pill bottle contained amphetamine, a Schedule II controlled substance; fifty tablets contained clonazepam, a Schedule IV controlled substance.   The aluminum foil and straw that Camann was hiding under his shoe were not tested for narcotics. The grand jury returned four indictments against Camann: three felony counts of possessing a Schedule I or II controlled substance and one misdemeanor count of possessing a Schedule IV controlled substance.   The trial court denied Camann’s motion to suppress the evidence.      At the jury trial that followed, the Commonwealth’s evidence consisted of Deputy Spears’s testimony, his body-camera footage, and a certificate of analysis detailing the results of the lab tests on the drugs found in Camann’s possession. The trial court denied Camann’s motion to strike the Commonwealth’s evidence. Camann then testified. He admitted that he was a drug addict, that he had tried to conceal the foil underfoot, that the foil contained “a drug,” and that the items found in his pockets were all his. He admitted knowing that the white powder was fentanyl but denied knowing that it also contained etizolam, a drug he said he had never heard of.    The trial court denied Camann’s renewed motion to strike the etizolam charge. Relying on Sierra v. Commonwealth, 59 Va. App. 770 (2012), the court held that Camann “b the risk under Sierra of punishment for whatever substance was there.”    ANALYSIS    The question presented is whether a defendant who possesses a mixture of two controlled substances can be convicted of two violations of Code § 18.2-250 if the Commonwealth proves the defendant’s knowing possession of only one controlled substance. The Commonwealth argues that proof that the defendant has knowingly possessed one controlled substance in a mixture permits the defendant to be convicted of as many violations of Code § 18.2-250 as there are drugs in the mixture.    COURT OF APPEALS VIRGINIA    We disagree.    The Commonwealth’s position is supported by neither the text of the statute nor the precedent construing it.    We also reject the Commonwealth’s fallback argument that the evidence at trial sufficed to prove that Camann knew that the mixture he possessed contained more than one controlled substance.  ..  COURT DECISION:   (.html)

♦       Jan 16,  ..  2nd Cir.:    Harrison v. Port Auth. of N.Y.  ..  Ms. Harrison appeals from a judgment of the United States District Court entered on May 10, 2022.    Beginning on August 22, 2016, Harrison served as a probationary employee for the Port Authority, performing various responsibilities at Newark Airport.    On December 23, 2016, the Port Authority terminated Harrison’s employment, because according to the Port Authority, Harrison had committed a runway incursion the previous day.    Specifically, the Port Authority claimed that Harrison drove a vehicle onto an active runway, causing an airplane to abort its landing. Following her termination, Harrison sued the Port Authority under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., alleging that it unlawfully fired her because of her race, national origin, and/or gender.    In May 2022, a jury returned a verdict in favor of the Port Authority, finding that the Port Authority did not wrongfully terminate Harrison’s employment in violation of Title VII.    Harrison appealed.  ..  COURT DECISION:   (.html)

♦       Jan 16,  ..  3rd Cir.:    Barlow v. Service Employees International  ..  Mr. Barlow and Frances Biddiscombe were members of Service Employees International Union (SEIU) Local 668, the bargaining unit representing employees of the Pennsylvania Department of Human Services (DHS).    They each signed new union membership applications in June of 2018, voluntarily authorizing paycheck dues deductions. The authorizations were valid from year to year and irrevocable, regardless of membership status, unless the member provided written notice of revocation within a specified annual window of at least ten days and not more than thirty days before the end of any yearly period.    Barlow and Biddiscombe each submitted letters of resignation from SEIU Local 668 in July of 2020, after their annual revocation windows had passed.    Pursuant to the authorizations, SEIU Local 668 continued to deduct membership dues until the annual revocation windows reopened in May and June of 2021.     Miriam Fultz and thirteen other members of the American Federation of State, County, and Municipal Employees (AFSCME), Council 13, also signed union membership agreements in which they voluntarily authorized the deduction of membership dues from their paychecks.    Those authorizations were irrevocable, regardless of union membership status, unless the member provided written notice of revocation during the fifteen days before the annual anniversary date of the authorization.    The fourteen members each submitted letters of resignation from their union in 2020, either before or after their respective annual revocation windows were open. AFSCME, Council 13 notified each of them that, pursuant to their agreements, membership dues deductions would continue until a written request was resubmitted during the next annual revocation window several months to nearly a year later.     Despite having voluntarily joined their respective unions and authorizing ongoing dues deductions—regardl of membership status—in accordance with their membership agreements, none of the resigned union members were content to keep paying dues until their next annual revocation window period rolled around. Unlike many annual magazine or streaming app subscription fees, the former members’ authorized paycheck deductions could not be halted immediately by arguing with a customer service rep or lodging a credit card charge dispute.    So, they sued.  ..  COURT DECISION:   (.html)

♦       Jan 12,  ..  11th Cir.:    Warren v. Ron DeSantis  ..  Voters twice elected Mr. Warren to serve as the state attorney for Florida’s Thirteenth Judicial Circuit, which encompasses Hillsborough County, whose seat is Tampa. Florida state attorneys are state officers, locally elected to four-year terms.    While serving, Warren implemented new policies and advocated reforms. Based on Warren’s policies and advocacy, Florida Governor Ron DeSantis suspended him from office and appointed a political ally to replace him.    Warren sued under 42 U.S.C. § 1983, claiming that DeSantis suspended him in retaliation for his First Amendment activity and seeking reinstatement. After a bench trial, the district court found that six factors motivated DeSantis to suspend Warren.    The court concluded that two of the factors relied on First Amendment-protected activity. After finding that Warren’s protected activity motivated DeSantis, the district court nonetheless rejected Warren’s claims on the merits.    Setting aside the protected activity, the court decided that DeSantis would have suspended Warren anyway, based on the unprotected activity.    The district court erred in concluding that the First Amendment did not protect the activities behind two of the other factors.    We therefore vacate and remand.    On remand, the district court should reconsider whether DeSantis would have made the same decision based solely on the unprotected activities.  ..  COURT DECISION: &nbs (.html)

♦       Jan 12,  ..  CAI.:    Hampe v. Charles Gabus Motors  ..  Mr. Hampe was scheduled to work on December 5, the day of the testing. Before going into work, he played basketball and worked out. Hampe had an appointment at 9:00 a.m. with some customers, but because his thirteen-year-old daughter was home sick from school, he planned to head back home after the appointment to take her to urgent care. But when he got to work at 9:00 a.m., Hampe’s manager called him and told him that he “need to go upstairs for a drug test.” Hampe finished his appointment, which took about thirty minutes, and then went to the testing area.    Once there, he took a seat and waited for his turn. Mid-Iowa employee Sarah Ghee “was present onsite . . . to assist with sample collection” and “‘monitored’ sample collection for all employees tested that day.” Gabus-McBride was also present in the testing area. When Ghee was ready for Hampe, she handed him a cup and accompanied him into the bathroom being used as the collection site. The bathroom had a private stall and common-area sink. Ghee waited by the sink while Hampe went into the stall. In his deposition, Hampe explained that because the stall was small, “you can’t really stand and pee and then shut the door.” So he left the door open while he urinated into the cup.    When Hampe was finished, he handed the cup to Ghee. She shot it “with a laser gun and it’s out of temperature. And then tells me that I’m going to have to drink more water and come back and then dumps it out” into the sink.    Hampe saw that the temperature registered at 101 degrees, although in a statement written by Ghee, she said it was 104 degrees and “neon in color . . . like Mountain Dew.” Hampe did not recall Ghee mentioning any concerns about the color of the urine, and the only notation she made on Mid-Iowa’s testing form was “out of temp at 9:45 at 104.” Hampe sat in the waiting area for about ten minutes before he tried again. But Ghee dumped that one out too because he didn’t produce enough urine.    Hampe returned to the waiting area and drank more water. After about twenty minutes, he told Gabus-McBride that he had to go home because his daughter was sick. Gabus-McBride told him, “You know if you leave, you’re going to get fired.” When Hampe asked whether she would “really do that,” Gabus- McBride said, “Yeah.” So Hampe sat back down for another fifteen minutes, “trying to weigh options.” He eventually decided to leave, though he told Gabus- McBride that he would come back. She repeated, “No. If you leave, you’re fired.”    Hampe responded, “I shouldn’t even be up here anyhow because my name’s not on the list.” And then he left.    Later that day, at 11:59 a.m., Hampe emailed Dee Kading, the president of Gabus, offering to “go to the facility or come back” to test. Kading replied, “You have worked for the Toyota dealership long enough to know the rules. I wish you the best.”    Gabus then terminated Hampe from his employment, noting in a “notice of employment termination” that the reason was his “refusal to complete random drug test.”    Hampe did go to Mid-Iowa’s facility the next day, where he requested and paid for a second test. That test was observed by a male employee and was negative.    In May 2020, Hampe sued Gabus and Mid-Iowa, alleging both failed to carry out the December 2019 drug test in compliance with Iowa Code section 730.5.    In an amended petition, Hampe added common-law claims of fraud, invasion of privacy, conspiracy, and reckless disregard, all arising out of the drug testing.  ..  COURT DECISION:   (.html)

♦       Jan 11,  ..  9th Cir.:    Jane Doe No. 1 v. Uber Technology  ..  We briefly summarize the material facts.    Plaintiff Jane Doe requested that her boyfriend call her an Uber remotely because her phone had low battery. Plaintiff’s phone, however, lost its charge, and she did not receive from her boyfriend the information identifying the authorized vehicle.    Plaintiff then entered a car displaying an Uber decal that stopped in front of her.    In fact, the driver— Brandon Sherman—was no longer employed by Uber, having been previously terminated for sexually assaulting two female passengers.    Nonetheless, he retained and displayed the Uber decals. Sherman proceeded to kidnap and sexually assault Plaintiff, for which he was eventually prosecuted and convicted.    Plaintiff later filed this lawsuit against Uber Technologies, Inc. alleging that the company was both (a) vicariously liable for the misconduct of its ostensible agent and (b) negligent in failing to keep its riders safe.  ..  COURT DECISION:   (.html)

♦       Jan 11,  .. FLRA:  Federal Bureau of Prisons v. AFGE  ..  The grievant is a correctional officer.     The Agency required him to take a breathalyzer test and then, while the Agency investigated, it reassigned him to a position that was ineligible for overtime.     The Union grieved, claiming the way in which the Agency conducted the breathalyzer test violated § 7114(a)(2)(B) of the Federal Service Labor‑Management Relations Statute    (the Statute) and the parties’ collective‑bargaining agreement.     Arbitrator John S. West issued an award sustaining the grievance and directing the Agency to both return the grievant to his previous assignment and make him whole for missed overtime opportunities.     The Agency filed exceptions arguing the award is contrary to law and based on a nonfact.   ..  FLRA DECISION:   (.html)   (.pdf)

♦       Jan 11,  ..  6th Cir.:    Ashford v. Univ. of Mich  ..  In late 2019, Mr. Ashford (“Ashford”), a police officer employed by the University of Michigan-Dearborn (“UM-D”), spoke with a reporter at The Detroit Times about his concerns that the UM-D police department was mishandling a student’s allegation that one of her professors had sexually assaulted her. After his supervisors at the University, including then-Vice Chancellor Jeffrey Evans (“Evans”) and UM-D Police Chief Gary Gorski (“Gorski”), learned that he had taken his thoughts about the case to the media, they launched an inquiry into his actions in November 2019.    At the conclusion of their investigation, UM-D suspended Ashford for ten days without pay.    Ashford sued UM-D, the University of Michigan, Evans (in his individual and official capacities) and Gorski (in his individual and official capacities), bringing a First Amendment claim that he had been unconstitutionally retaliated against for engaging in protected speech. Ashford sought to have the suspension removed from his employment record, as well as monetary damages.    The defendants argued in a motion for summary judgment that Ashford’s suit against the university and its officers in their official capacities was barred by Eleventh Amendment sovereign immunity, and that the officers in their individual capacities were entitled to qualified immunity.    The district court denied their motion with respect to both sovereign and qualified immunity.    In this interlocutory appeal, the defendants ask this court to reverse the district court’s decision.     ..  COURT DECISION:   (.html)

♦       Jan 11,  ..  Fed Cir.:    Brooks v. Treasury  ..  Pamela Brooks was removed from her position as a Tax Compliance Officer with the Department of the Treasury following the agency’s determination that she had willfully understated her federal tax liability for tax years 2005 through 2007.    Ms. Brooks appealed the agency’s removal decision to the Merit Systems Protection Board. The assigned administrative judge issued an initial decision sustaining her removal, and the Board affirmed the initial decision.    Ms. Brooks has appealed the Merit Systems Protection Board decision to the US Appeals Court for the Federal Circuit(Fed Cir).    Ms. Brooks began her employment as a Tax Compliance Officer with the Internal Revenue Service (IRS) within the Department of the Treasury in 2003. SAppx. 38. 1 Her duties included examining tax returns and determining taxpayers’ eligibility for deductions and exemptions, such as casualty-loss deductions and dependency exemptions.    In 2008, the IRS selected Ms. Brooks’s own 2006 federal tax return for a tax audit.    The audit was later expanded to cover her returns for 2005 and 2007.    Ms. Brooks petitioned the United States Tax Court for a redetermination of her tax liability for those years. In June 2013, the Tax Court ruled that the IRS had properly disallowed several of her claimed exemptions and deductions and imposed penalties. SAppx. 52–95. The disallowed claimed deductions for 2005 included a $16,088 casualty-loss deduction and a $3,500 charitable-contribution deduction.    The disallowed claimed exemptions and deductions for 2006 included a dependency exemption for her son M.B. and a $5,173 charitable-contribution deduction.    The disallowed claimed exemptions and deductions for 2007 included a dependency exemption for her son M.B., a $3,129 casualty-loss deduction, a $5,200 charitable-contribution deduction, and a $23,000 deduction for state and local taxes.    In March 2015, an official within a Field Examination Southwest Area unit of the IRS proposed to remove Ms. Brooks from her job based on two charges: (1) willful understatement of tax liability for 2005, 2006, and 2007; and (2) failure to timely pay taxes. SAppx. 98–103. In December 2015, the director of the IRS’s Field Examination Southwest Area unit determined that Ms. Brooks’s understatement of her tax liability from 2005 to 2007 violated § 1203(b)(9) of the Internal Revenue Service Restructuring and Reform Act of 1998.    Section 1203 of the 1998 Act mandates termination of any IRS employee who has made a “willful understatement of Federal tax liability, unless such understatement is due to reasonable cause and not to willful neglect.” IRS Restructuring and Reform Act §§ 1203(a), 1203(b)(9), 26 U.S.C. § 7804 note. A mandatory removal penalty applies unless the IRS Commissioner exercises discretion to mitigate the penalty.    The December 2015 determination was forwarded to the Section 1203 Review Board to advise the IRS Commissioner whether to exercise discretion to mitigate the mandatory removal penalty. SAppx. 104. The Section 1203 Review Board decided that a recommendation of mitigation was not warranted. SAppx. 106. On March 23, 2016, the acting director of the IRS’s Field Examination Southwest Area unit removed Ms. Brooks from her position for violating § 1203(b)(9).    In April 2016, Ms. Brooks appealed her removal to the Board.  ..  COURT DECISION:   (.html)

♦       Jan 11,  ..  2nd Cir.:    Rapaport v. Barstool Sports Inc.  ..  Plaintiffs-Appellants Michael Rapaport and Michael David Productions Inc. (collectively, “Rapaport”) appeal from the judgment of the district court, entered on September 14, 2022, granting summary judgment to Defendants-Appellees Barstool Sports Inc.and Barstool employees Adam Smith, Kevin Clancy, Eric Nathan, and David Portnoy on Rapaport’s defamation claim.    Barstool, founded in 2004 by Portnoy, produces blogs, videos, and podcasts; sells merchandise; and has its own channel on SiriusXM, with a loyal following of fans who call themselves “Stoolies.” Barstool has become both a media company and a comedy brand. It is “nown for its original takes and unfiltered view of most everything” and is “the controversial brand that people love or love to hate.”    Rapaport is a well-known actor, performer, and comedian who has appeared in dozens of movies and television series. Rapaport is also known for providing his “unfiltered views” on politics, sports, and pop culture via short video “rants,” which he uploads to his social media handles, including Twitter, Instagram, and YouTube.    In 2017, Rapaport and Barstool entered into a talent agreement. Within months of joining Barstool, Rapaport began feuding with Barstool personality Adam “Smitty” Smith over allegedly unpaid sports bets. The dispute led to a barrage of tweets back and forth, with Rapaport ultimately accusing Smith of taking steroids and Rapaport tweeting, “if you call yourself a f**king stoolie for real, you’ve already lost in life.” Supp. App’x at 543 (alteration added). Portnoy subsequently texted Rapaport that Barstool was firing him and posted on Twitter a video explaining that he was firing Rapaport because Rapaport had “insult our entire f**king fan base” and Stoolies are the reason “we all have jobs.”    After Rapaport was terminated from Barstool, the parties continued to trade crude and vulgar insults on the internet.    Rapaport then brought an action in the district court asserting eleven claims, including for fraud, defamation, and breach of contract. The defamation claim, which is at issue here, was based on more than seventy-five written, audio, and visual comments made by Barstool personalities on social media and Barstool platforms. Barstool asserted a breach of contract counterclaim against Rapaport. Rapaport moved for summary judgment on six of his eight breach of contract claims, his two fraud claims, his defamation claim, and Barstool’s counterclaim. Barstool cross-moved for summary judgment on the fraud and defamation claims. The district court granted Barstool’s motion for summary judgment in its entirety and denied Rapaport’s motion.    With respect to the defamation claim, the district court held that Rapaport failed to establish that the challenged statements were actionable statements of fact.    Rapaport filed a motion for reconsideration and alternatively for certification of interlocutory appeal, which the district court denied. The parties stipulated to the dismissal with prejudice of their respective breach of contract claims. The district court granted the stipulated dismissal and entered final judgment. Rapaport brought this appeal challenging the district court’s decision solely with respect to his defamation claim.    “Under New York law a defamation plaintiff must establish five elements:   (1) a written defamatory statement of and concerning the plaintiff,   (2) publication to a third party,   (3) fault,   (4) falsity of the defamatory statement, and   (5) special damages or per se actionability.”... CONTINUED  ..  COURT DECISION:   (.html)

♦       Jan 11,  .. FLRA:  AFGE v. SSA  ..  The grievant is a part-time employee whose regular tour of duty is Monday through Thursday, 7:00 a.m. to 1:00 p.m.  When the Agency offered employees the opportunity to earn up to six credit hours on a particular Saturday, the grievant submitted a request to earn four-and-a-half credit hours that day.  The Agency permitted the grievant to earn up to three credit hours, but denied her request to earn more.  The Union filed a grievance challenging the denial, and the case went to arbitration.    At arbitration, the Union argued Article 10, Section 7 of the parties’ agreement controlled the dispute, while the Agency argued Article 10, Appendix A, Section 10(C) (Section 10(C)) controlled.  Section 7, entitled “Saturday Credit Hours,” pertinently provides, “When overtime is offered in a unit, module, section or office, management may offer up to eight (8) credit hours for those employees who work in that unit, module, section or office.”  Section 10(C) – part of a section entitled “CreditHour Provisions” – pertinently provides that “art-time employees may . . . earn up to three (3) credit hours on their non-tour day(s).”      Arbitrator Randall M. Kelly issued an award finding the Agency did not violate the parties’ collective-bargaining agreement when it denied a part-time employee (the grievant) the opportunity to earn more than three credit hours on a Saturday.     The Union filed exceptions challenging the Arbitrator’s interpretation of the agreement.     For the following reasons, we find the Union sufficiently raises essence exceptions, but we deny those exceptions on the merits.  ..  FLRA DECISION:   (.html)   (.pdf)

♦       Jan 11,  .. FLRA:  AFGE v. VA  ..  The Union requested to bargain over issues relating to “sharps containers” within the Agency’s medical facility.  The Union submitted a proposal governing contract employees’ performance of sharps‑container duties.  Thereafter, the Agency sent an email to the Union alleging the proposal was “non‑negotiable” because it “excessively interferes with anagements rights.”     On June 5, 2023, the Union filed its petition with the Authority.  Then, with assistance from the Authority’s Collaboration and Alternative Dispute Resolution Office, the Union modified the proposal.    On June 9, the Authority’s Office of Case Intake and Publication (CIP) issued an order directing the Union to serve the petition on the Agency head.  In response, the Union provided a statement of service showing that the Union served the Agency head on June 21.    On August 22, an Authority representative conducted a post‑petition conference (conference) with the parties and issued a written record of that conference pursuant to § 2424.23 of the Authority’s Regulations.    At the conference, the Union again modified the wording of the proposal, to which the Agency did not object.  In addition, the Agency confirmed that it had not yet filed a statement of position.    After the deadline to file a statement of position expired, CIP ordered the Agency to show cause why the Authority should not find that the Agency conceded the proposal’s negotiability by failing to file a statement of position.     The Agency did not respond to the order.  ..  FLRA DECISION:   (.html)   (.pdf)

♦       Jan 11,  .. FLRA:  AFGE v. VA  ..  American Federation of Government Employees, Local 2344 (Union) and United States Department of Veterans Affairs, Hershel "Woody" Williams VA Medical Center (Agency)  ..  FLRA DECISION:   (.html)   (.pdf)

♦       Jan 9,  .. 2nd Cir.:    Restaurant Law Center v. City of New York  ..  In December 2020, the New York City Council amended the City’s Fair Workweek Law to provide additional employment protections for workers in the fast-food industry. Specifically, the amendments enacted the Wrongful Discharge Law, which protects employees of large fast-food chains in New York City from arbitrary terminations and reductions in hours.    The Law also provides those fast- food employees with the option to arbitrate claims of alleged violations. The Wrongful Discharge Law took effect on July 4, 2021.    This case arose when Plaintiffs, the Restaurant Law Center and the New York State Restaurant Association, challenged the Wrongful Discharge Law on grounds that it is preempted by the National Labor Relations Act (NLRA) and unconstitutional under the dormant Commerce Clause.  ..  COURT DECISION:   (.html)

♦       Jan 9,  .. 4th Cir.:    Kelly v. Town of Abingdon  ..  On March 1, 2005, the Town of Abingdon hired Mr. Kelly as Town Attorney. One year later, the Town appointed him Town Manager, subject to an employment contract that guaranteed him nine months’ severance pay. As Town Manager, Kelly was responsible for managing the Town’s day-to-day business affairs, supervising town employees, and responding to inquiries from stakeholders. Kelly alleges that he excelled in this role, and exceeded the Town’s expectations throughout his employment.    According to Kelly, that all changed when Town Hall became embroiled in political infighting. He maintains that, over time, the elected Mayor and Town Council engaged in an escalating pattern of “unprofessional and . . . outrageous behavior” that created a caustic work environment for town employees. Elected officials allegedly humiliated and harassed directors and staff members, and leveraged the threat of termination to advance their political agendas. Among other examples, Kelly contends that Mayor Wayne Craig harassed Kelly’s staff and undermined his ability to manage them; that former Mayor Cathy Lowe threatened to fire Kelly if he did not “get on board” with her political goals and appoint her personal friends to favorable positions; and that Vice Mayor Rick Humphreys berated Kelly in public meetings — and subjected him to drunken, belligerent, profane phone calls at odd hours of the night.    Kelly suffers from anxiety, depression, and high blood pressure. As the hostility at work intensified, Kelly asserts that his health deteriorated, and his disabilities became intolerable. He maintains that he endured crippling anxiety, disorientation, insomnia, and hopelessness; his blood pressure spiked, he experienced dizzy spells, and he had panic attacks at work, disrupting his ability to perform basic tasks. And he claims that Town employees and department heads witnessed the mistreatment he suffered and its deleterious effects on his health. They allegedly congregated in Kelly’s office after Council meetings to console him, bought him a blood pressure monitor, and urged him to seek medical attention.    As conditions deteriorated, in September and December 2017, Kelly filed Charges of Discrimination with the Equal Employment Opportunity Commission (“EEOC”). According to Kelly, “all of the department heads” were aware of his EEOC charges, and “his filings were a well-discussed subject matter at the office.” He also asserts that these charges informed the Town of his disabilities, 2 and that the Town responded by sifting through his private communications and escalating its pattern of harassment ... CONTINUED  ..  COURT DECISION:   (.html)

♦       Jan 9,  .. 6th Cir.:    Mattingly v. R.J. Corman R.R. Grp  ..  Defendants in this case are individual members of a corporate family. Defendant R.J. Corman Railroad Group, LLC (“Corman Group”) is the holding company for, and sole Member and Manager of, various subsidiary companies including Corman Services—a construction company that performs repair and construction work on railroad tracks and bridges throughout the country—and R.J. Corman Railroad Company, LLC (“Railroad Company”). Railroad Company, although not a party to this case, owns various short-line railroads, including Memphis Line.    In January 2017, Mattingly fell while performing bridge repair work on the Memphis Line and sustained several serious injuries, which ultimately led to the amputation of his left leg. At the time of the accident, Mattingly was nominally employed by Corman Services.    Memphis Line Project. Memphis Line retained Corman Services to repair the Red River Bridge and the Cumberland River Bridge (collectively, the “Memphis Line Project”) in Clarksville, Tennessee. Mattingly supervised his own bridge repair crew solely comprised of Corman Services employees on the Memphis Line Project. Mattingly assigned crew members to equipment, assured that they had all necessary tools, and picked the spot they would work on each day.    He reported to the superintendent, Paul Childres, another Corman Services employee who also supervised a separate crew of Corman Services bridge workers.    Mattingly and Childres both reported to a Corman Services operations manager. Initially, the entire Corman Services team reported to the Cumberland River Bridge, but Memphis Line later determined it would be more efficient to divide the workflow between the two bridges.    Mattingly and his crew therefore switched to the Red River Bridge, and Childres and his crew remained at the Cumberland River Bridge approximately two miles away.    In addition to Corman Services employees, Railroad Company employees were involved in the Project. Jason Topolski, a Railroad Company bridge inspector ... CONTINUED  ..  COURT DECISION:   (.html)

♦        Jan 9,  .. 6th_Cir.:    Noumoff v. Checkers Drive-In Restaurants  ..  In describing the facts for purposes of summary judgment, we view the record in the light most favorable to Noumoff.     Ms. Noumoff was the general manager of a Rally’s Restaurant (owned by Checkers) in Spring Grove, Ohio, from May 2013 to November 2015, and then again from June 2016 to October 2018. Her responsibilities included managing employees, controlling food and labor costs, and ensuring that staff complied with Checkers’ time-keeping policies. Checkers evaluated Noumoff’s performance several times a year, in part by reference to a “scorecard” that measured the Spring Grove restaurant’s financial success relative to budget. Most of Noumoff’s performance evaluations were positive, though she received a formal warning in November 2017 for “substandard work.”     In January 2018, Checkers hired Almir Velagic to be the district manager of the Cincinnati region. That made him Noumoff’s direct supervisor. Velagic reported directly to April Williams, Employee Relations Manager, and Gordon Rowan, Operations Director. Williams and Rowan, in turn, reported to Carlos Del Pozo, Senior Director of Operations, and David Bode, Senior Director of People Support.     Velagic and Noumoff had a combative relationship from the start. Weeks after Velagic became district manager, he told Noumoff that he was concerned about the quality of service at the Spring Grove restaurant, having “mystery shopped” there three times. He also told her that the Spring Grove restaurant was the only one in his region that had exceeded budgeted labor hours during a recent reporting period. Noumoff dismissed these concerns, telling Velagic that his “mystery shopping” feedback was unwelcome and that his labor hour calculations were wrong.     It was downhill after that. According to Noumoff, Velagic began regularly to berate her in front of other staff members, several times telling her “I am done with you.” The resulting tension was exacerbated in early February, when Noumoff challenged Velagic’s authority regarding a hiring decision.     Velagic eventually told Williams and Rowan that he was frustrated with Noumoff’s behavior, and forwarded them several emails and texts that he thought illustrated the problem. Williams suggested that Velagic respond with a formal warning for discourteous behavior, but Velagic instead decided to have an informal conversation with Noumoff about the value of teamwork, which he thought would keep their “relationship intact and moving forward.” Velagic later reported that Noumoff seemed “receptive” to his comments.     In early April 2018, however, Noumoff sent Rowan (the Operations Director) a long email in which she said, among other things, that Velagic was treating her unfairly because she was a woman. Specifically, Noumoff said that Velagic routinely cut her off in conversation and often ignored her requests for additional staffing and supplies—conduct that she said showed Velagic did not “like as a female.” Noumoff also told Rowan that she was “disappointed” and “disgusted” that Velagic had not fired a Spring Grove employee, Antone, after Noumoff and another employee, Tessa, had accused him of sexual misconduct and harassment. (Velagic instead reprimanded Antone and eventually transferred him to another Checkers’ location.)     The next day, Rowan forwarded Noumoff’s email to Williams (the Employee Relations Manager), who promptly opened a formal investigation into Noumoff’s complaints about gender discrimination. As part of that investigation, Williams called Noumoff and asked her for specific examples of how Velagic treated her differently because of her gender. Noumoff said that Velagic “never let her finish her sentences” and also mentioned Velagic’s handling of the “issue” with Antone. After Williams spoke with Noumoff, she told Rowan that she would “investigate to determine the validity of the claim” even though Noumoff “didn’t provide anything necessarily specific about being treated differently”     On April 16, while Williams’s investigation was still pending, Noumoff called Velagic to discuss a staffing issue at the Spring Grove restaurant. According to Noumoff, Velagic immediately began “screaming” at her, so she hung up on him. (Velagic said that they talked, that Noumoff disagreed with what he said, and that Noumoff abruptly hung up.) Later that day, Noumoff sent an email to Rowan and Williams in which she said, among other things: “I WILL NOT BE TREATED THIS WAY, AND SCREAMED AT. I wamt to file a formal complaint and if Rallys will not concede, I will file a complaint with another office. I am done with this. Rallys IS NOT doing its due didgence to support me.” But Williams apparently believed Velagic’s version of events, and issued Noumoff a formal written warning a few days later for “hanging up on” Velagic and for “sending the email ‘yelling’” at her and Rowan. ... CONTINUED  ..  COURT DECISION:   (.html)


♦       Nov 15,  .. FLRA:  JUSTICE v. AFGE  ..  The parties agreed to a process whereby employees add their names to a list if they want to work overtime, and the Agency selects employees to cover open overtime positions from the list.    The parties’ agreement specifies how the Agency will select employees from the list and when the Agency can select employees not on the list, such as when the list is “totally exhausted” or where there is a “hift onflict” preventing listed employees from working overtime.       Around March 29, 2022, the Agency began labeling certain overtime positions as “List Exempt” and bypassing the list.  An employee notified the Union of the Agency’s actions on April 29, and the Union sent the Agency a request for informal resolution.    When the Agency did not respond, the Union filed a grievance on June 2.    In the grievance, the Union asserted the Agency violated the parties’ agreement on March 29—the date the employee provided.  The Agency did not timely respond, and the Union invoked arbitration.       Subsequently, the Agency denied the Union’s grievance.  The Agency claimed the grievance was untimely under Article 31(d) of the parties’ agreement, which provides that “rievances must be filed within forty . . . calendar days of the date of the alleged grievable occurrence . . . forty . . . calendar days from the date the party filing the grievance can reasonably be expected to have become aware . . . of the occurrence.”       The grievance proceeded to arbitration.  ..  FLRA DECISION:   (.html)   (.pdf)

♦       Nov 15,  ..  5th Cir.:    Jane Doe AW v. Burleson County  ..  Plaintiff Jane Doe AW, a former criminal clerk in the Burleson County Attorney’s Office, alleged that Burleson County Judge Mike Sutherland used his power and authority as a county judge to sexually assault her on several occasions.    Doe claimed that Sutherland sexually assaulted her once in his restaurant, Funky Junky, LLC (“Funky Junky”), and twice in his office.    According to Doe, when she complained to Sutherland about the abuse, she was terminated from her job.      Sutherland later resigned from his position as County Judge pursuant to a voluntary agreement before the State Commission on Judicial Conduct.    After consolidation, transferred venue, and an amended complaint, Doe ultimately asserted claims under 42 U.    S.    C.    § 1983 and for sexual assault, vicarious liability, and intentional infliction of emotional distress against three defendants: Funky Junky, Sutherland, and Burleson County (the municipality).    On report and recommendation of the Magistrate Judge, the district court dismissed the vicarious liability claims against Funky Junky with prejudice under Federal Rule of Civil Procedure 12(b)(6).    The district court denied the other defendants’ initial dispositive motions.    On November 6, 2020, Burleson County moved for summary judgment on Doe’s Section 1983 claim against it.      The district court initially adopted the Magistrate Judge’s recommendation that Burleson County’s 2 Case: 22-50918 Document: 00516962421 Page: 3 Date Filed: 11/09/2023 No.    22-50918 motion for summary judgment be denied.    In the interim, the parties consented to the referral of their case to the Magistrate Judge for trial purposes.    On December 10, 2020, Doe settled with Sutherland, and the district court dismissed her claims against him, as well as the remaining claims against Funky Junky, with prejudice.    As a result, Burleson County filed a motion for reconsideration concerning the denied motion for summary judgment, which the Magistrate Judge granted based on Doe’s recent settlement with Sutherland.      The Magistrate Judge entered final judgment, dismissing with prejudice Doe’s claims against Burleson County.    The very next day, the Magistrate Judge set aside that final judgment.      The Magistrate Judge then issued a new order denying Burleson County’s motion for summary judgment and setting the case for trial.      The first jury trial resulted in a mistrial, after the removal of two jurors from the panel based on conversations those jurors had with Doe.      At the pretrial conference for the second jury trial, Doe claims that the Magistrate Judge denied Doe’s challenge of a juror for cause. ... CONTINUED  ..  COURT DECISION:   (.html)

♦       Nov 15,  ..  ADSCNY.:    Cuer v. State of New York  ..  Petitioner was a correction officer employed by respondent Department of Corrections and Community Supervision (hereinafter DOCCS) who worked at the Attica Correctional Facility during the relevant period.    Beginning in 2009, Pamela Small, a teacher at the facility, was subjected to unwelcome and increasingly disturbing romantic advances by petitioner.    Small described how petitioner told her in 2009 that God was speaking to him and had revealed "that his wife will die and that become his next wife.    " Petitioner thereafter pursued Small relentlessly, "constantly" coming to her classroom, calling her on the phone and sending her notes, text messages and emails.    The behavior continued after Small told petitioner that she was offended in January 2010 and wrote him a letter in March 2010 directing him to stop bothering her.    In the summer of 2010, notes were left on Small's vehicle in the facility parking lot implying that petitioner was watching her and, on at least one occasion, he repeatedly texted her in the early morning hours in a manner that implied that he was sitting outside of her home.    Petitioner further lodged a complaint against Small, accusing her of having an inappropriate relationship with an incarcerated individual, that was later determined to be meritless.    After it became apparent that DOCCS officials were not taking her repeated complaints about this conduct seriously, Small filed a police report regarding petitioner's behavior in November 2010 and obtained an order of protection against him that he was later arrested for violating.    The stress of petitioner's ongoing behavior caused Small to develop physical and mental problems, and she stopped working at her physician's direction in January 2011.    She never returned to work at the facility, and was terminated by DOCCS in February 2012.      Later in 2012, Small commenced an action in the US District Court for the Western District of New York against petitioner, the State of New York, DOCCS and two facility officials who failed to address her complaints about petitioner's conduct, alleging that she had been subjected to unlawful discrimination, hostile work environment, sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 USC § 1983 and Executive Law § 296.  ..  COURT DECISION:   (.html)

♦       Nov 9,  ..  CCA:    Argueta v. Worldwide Flight Services  ..  In her complaint, Ms. Argueta alleged Nguyen began sexually harassing her in 2016. On May 11, 2017, Nguyen placed Argueta “out of service” while the matter was investigated; this essentially meant she was placed on paid leave.     While Argueta was on leave, she consulted with a lawyer and, on May 15, 2017, the last scheduled day of her leave, she emailed a written complaint to Worldwide accusing Nguyen of sexually harassing her.   She wrote that he “would state to close my eyes and he would feel on my face and shoulders in a way that gave me chills and discomfort.   He would always come behind me when I was at my desk and grab my hand in a weird way. Call me words of affections like ‘ my baby, that’s why I love you, my sweet heart, my girl’   I have text message that have emojis that are not appropriate from a manager to a employee.”     Argueta subsequently claimed many more acts of harassment.   She testified Nguyen would trip and fall into her which initially seemed like an accident but when it increased in frequency, it appeared deliberate because he tried to or did touch her, including her breasts. She would ask him, “what’s going on?” He never stopped falling into her. He would give her back or shoulder rubs and ask her to rub his shoulders.   Once he placed his hand on Argueta’s thigh and rubbed it “up and down.” She pushed his hand away “and told him to never touch again.”     Argueta told Nguyen to go away when he asked for a massage.   In response, he would get mad, walk away and not talk to her the rest of the day.   His silence impeded Argueta’s ability to do her job because she needed him to overwrite entries in the system and he would ignore her.     He asked her to dinner three times and told her she could cook dinner for him.   She rejected his invitation.   At one point in 2017, he started hugging her, touching her face and hair, rubbing her back and she “could feel his body against .”   He was kissing her forehead cheeks and eyelids.   His hands were on her hair, face and back. His face was at her chest.   She was “really shocked scared.” She pushed him away and told him to never touch her again. After collecting herself, she returned to work but could not concentrate.   She started having attendance problems because she did not want to go to work and see Nguyen.   She was counseled by her supervisor Flores for her tardiness and for leaving work early.       Worldwide conducted an investigation of Argueta’s complaint.  ..  COURT DECISION:   (.html)

♦       Nov 9,  ..  CCP.:    J.T. Foust v. PA DHS  ..  Employee worked at the Hospital, which is a public psychiatric hospital operated by DHS, as a Forensic Security employee from December 19, 2005, to August 10, 2015, when he was terminated from employment for unauthorized absences and unavailability for employment.    On June 4, 2018, Employee filed a Complaint with the trial court against Employer asserting disability discrimination which he later amended. In the First Amended Complaint (Amended Complaint), Employee alleged that he cared for patients housed at the Hospital, including inmates. Employee further alleged that he sustained two work-related injuries in May 2012, and then December 2014, which Employer contested.    On December 24, 2014, Employee was suspended without pay or benefits for 60 days. Employee grieved his suspension, which was settled with a reprimand. Employee did not return to work because of medical restrictions related to the work injuries.    In April 2015, Employee was released to sedentary part-time work with restrictions, including no contact with inmate patients. Employer advised Employee that he could not return to work until he was fully released without medical restrictions.    By letter dated July 16, 2015, Employer notified Employee that he had exhausted his accrued leave entitlement as of July 12, 2015; he was in an unauthorized excuse status; and he must return to full-time, full-duty work or resign or pursue disability retirement.  ..  COURT DECISION:   (.html)

♦       Nov 9,  ..  CCA:    Robinson v. County of Los Angeles  ..  Robinson began working for the County in 1999. In 2015, she suffered a permanent injury while working for the County’s fire department, caused by repetitive typing.    In late March 2018, Ms. Robinson began working at the County Public Defender’s Long Beach office as a student professional worker. A student professional worker is employed part time while also attending school, and Robinson worked approximately 30 hours a week.    The County’s official job description for the position encompasses a wide range of possible duties depending on the occupational area, including tasks such as assisting in filing legal documents and preparing reports. The job description indicates the student worker will do “related clerical work as required.”    Olivia Janelle Wyatt supervised Robinson. Wyatt’s supervisor was Gregory McCambridge. Robinson performed clerical tasks, including answering phones, helping clients, conducting research, making copies, data entry, and typing.    Facts Relevant to the Sexual Harassment and Gender Discrimination Claims    Robinson alleged that McCambridge frequently leered and stared at her “in a sexual manner.” She tried to avoid him because he made her uncomfortable. In late April 2018, at a work party for Administrative Staff Appreciation Day, McCambridge gave two male employees cards and shook their hands. When McCambridge handed Robinson a card, he hugged her instead of shaking her hand. In a declaration filed in opposition to the motion for summary judgment, Robinson indicated the hug was unwanted. She “felt completely grossed out and embarrassed” and was “very upset.”    Around one week later, McCambridge came up behind Robinson as she worked in her cubicle and said something like, “ ‘Hey, Keisha, when are you gonna stop going on those porn sites’ ” or “ ‘You know you’re not supposed to be on the porn.’ ”    Robinson was shocked and embarrassed. She felt this was an invitation to flirt and believed “McCambridge’s demeanor changed to angry” when she “did not respond in the manner that McCambridge wanted.”    According to McCambridge, he did not see pornography or anything inappropriate on Robinson’s computer when he made the comment.    He told Robinson to stay off of pornography sites because “she had access to the internet but cannot utilize it for inappropriate reasons,” and he told her “what he] tells all the lawyers.”    McCambridge explained that he gave this instruction to Robinson and not the employee working next to her because that employee already knew the policy. ... CONTINUED.  ..  COURT DECISION:   (.html)

♦       Nov 8,  ..  1st Cir.:    Sarkisian v. Austin Prep  ..  At the beginning of the 2019-2020 school year, Nancy Der Sarkisian, then sixty-nine years old and a ninth-grade English teacher at Austin Preparatory School ("Austin Prep"), began what she had told Austin Prep would be a four-week leave of absence for hip surgery.    When Der Sarkisian experienced complications that required further surgery -- and which her doctor anticipated would leave her incapacitated for an additional three months -- Austin Prep extended her leave of absence.    Der Sarkisian then experienced even more complications that required even more surgery.    When Der Sarkisian's doctor told the school that she would be unable to work with or without accommodations for an additional three to six months, Austin Prep terminated her employment and offered her the opportunity to reapply when she was cleared to work.    Instead, Der Sarkisian brought claims for disability discrimination and for age discrimination.  ..  COURT DECISION:   (.html)

♦       Nov 8,  ..  DcDc:    Perez v. Hitt  ..  Plaintiffs Jorge Perez, Alejandra Torres, and Arys Solano, who claim they were underpaid while working on a construction project, sued Defendants HITT Contracting on October 17, 2022, alleging Defendants violated the FLSA, Minimum Wage Act, and the Wage Payment and Collection Law.    Plaintiffs claim they were underpaid while working on a construction project in which they were directly employed by DayCJ which was performing sheet metal work pursuant to a contract with HITT.    Jimenez was the President of DayCJ at all relevant times.    Perez alleges Defendants failed to pay him for 80 hours of work he performed;    Solano alleges Defendants failed to pay him for 273 hours of work; and    Torres alleges her wage rate was more than two dollars less than the District of Columbia minimum wage and Defendants failed to pay her for 233 hours of work she performed.  ..  COURT DECISION:   (.html)

♦       Nov 8,  ..  11th Cir.:    Geter v. Schneider National Carriers  ..  Cierra Geter worked for several years as a full-time, night- shift area planning manager (“APM”) for Schneider National Carri- ers, Inc., a transportation and logistics company.    After being diagnosed with post-traumatic stress disorder (“PTSD”), Geter took temporary leave from Schneider, as was her right under federal law.    When her period of leave elapsed, Geter returned to work, but with an accommodation from Schneider: the company tempo- rarily allowed her to work part-time, and partly from home, for several months, even though the company did not employ any other part-time APMs.    Geter requested that Schneider continue to accommodate her several more times, and Schneider obliged.    But after about three months, Geter requested another accommodation—a continuation of her part-time schedule and the ability to work remotely any time she was scheduled to work alone. Schneider denied this request and terminated her employment.    Geter sued Schneider under the Americans with Disabilities Act (“ADA”), asserting failure-to-accommodate, discrimination, and retaliation claims.    Those claims hinged largely on whether Geter is a “qualified individual” within the meaning of the ADA.    A person is a qualified if she can “perform the essential functions of with or without reasonable accommodations.”    Schneider moved for summary judgment on the ground that Geter was not a qualified individual because full-time work and in-person work were essential functions of her job that she could not perform.  ..  COURT DECISION:   (.html)

♦       Nov 7,  ..  CCA:    Kreindler v. Cal. Dept. of Corrections  ..  Kreindler is an orthodox Jewish rabbi who was hired by the CDCR in October 2015 to be the Jewish chaplain at Pelican Bay State Prison (Pelican Bay), a maximum-security facility.     His job was to support the spiritual needs of Jewish inmates. Kreindler resigned in July 2017, complaining he had been mistreated in various ways, including by having been forced to work with a someone he described as a “self-proclaimed Nazi” inmate chapel clerk.     When Kreindler resigned, he sent an email stating his reasons for resigning. They included that prison officials required him to work with the “Nazi” inmate clerk, failed to protect him from another inmate who had threatened to kill him, and told some inmates that he was to blame for problems they were having with their kosher diets.     During the litigation of this case, Kreindler raised additional reasons why he felt compelled to resign. These included that prison officials denied him a protective vest, delayed his access to the internet, started to discipline him for taking time off to observe Passover, and improperly handled other issues related to inmates’ kosher diets.     We describe the evidence surrounding each of these asserted reasons for Kreindler’s resignation.  ..  COURT DECISION:   (.html)

♦       Nov 6,  ..  DcDc.:    Sichani v. Washington Metropolitan Area Transit Authority  .. 
      Vali headed WMATA’s Automatic Train Control (“ATC”) engineering department until her termination in July 2021.    Vali claims that in late May 2021 her supervisor, Nicholas Gardner, repeatedly asked her to certify that the ATC system at WMATA’s Alexandria, Virginia railyard was operational.    Specifically, Gardner allegedly asked her to execute a Temporary Use Notice (“TUN”)—a document that signified that all required documentation had been received and the railyard was safe for operation.
      Vali alleges that she, along with members of her department, refused to execute the TUN because they were missing certain documentation, including “specification, design, and test documents from WMATA’s suppliers” and “project team.”    Vali and her team also identified purported safety concerns with the railyard, including a software program that was missing features designed to prevent train derailment.
      In meetings, phone calls, and a memorandum she issued on May 22, Vali continued to refuse to sign the TUN.    On May 23, however, Gardner changed the TUN’s signature line from Vali’s name to his own and executed the TUN himself.    Later that week, Vali contacted WMATA’s Office of Inspector General (“OIG”) and the Washington Metrorail Safety Commission (“WMSC”), the agency with direct safety oversight of WMATA, to raise her “safety concerns” about Gardner’s certification of the TUN.
      In June, Vali also discovered that an “auto door open” function on the Red Line Metrorail was potentially unsafe and could lead to doors opening between stations.    Vali prepared a memorandum for Gardner, which included information indicating that WMATA had been aware of the door hazard since 2019. Gardner, however, allegedly edited the memorandum to omit some of this information and directed Vali to submit the “censored” memorandum to WMSC. WMATA’s Chief Safety Officer later contacted Vali to discuss the automatic door issue.
      The following month, Vali contacted Gardner’s supervisor to discuss her concerns about the safety of ongoing projects. Soon after her outreach, Gardner scheduled a meeting to discuss Vali’s job performance and fired her. At the meeting, Vali asked Gardner whether he was firing her in “retaliation for the railyard,” but he allegedly gave “o reason” for her termination.
      This suit followed..  ..  COURT DECISION:   (.html)

♦       Nov 6,  ..  TCWCC:    Day V. GOLD CREEK FOODS  .. 
      Mr. Day testified that he injured his back on November 29, 2022. He stated he was lifting and transporting fifty-pound bags of food seasonings onto a pallet and eventually into a cooler. However, a stainless-steel table prevented him from moving the bags of seasonings with his forklift, so he moved the table to clear a path. When he did, a clamp fell from it, and when he bent over to pick it up, he felt pain in his back.
      Because the injury occurred at the end of his shift, Mr. Day testified he was unable to find a supervisor to whom he could report the injury. So he left, hoping the pain would subside, but it worsened as he drove home. He later went to an emergency room and was discharged early the next day.
      After he left the emergency room, he went to Gold Creek and waited for his supervisor to report the injury. He testified that someone in human resources told him he could not file a claim because he did not report his injury the same day it happened. He testified that he returned to Gold Creek the next day and was given a panel, from which he selected Dr. Kevin Bailey. He never saw Dr. Bailey, but a nurse practitioner, Lindsey Lundquist, who referred him back to his primary care doctor to obtain an MRI. Dr. Bailey did not sign her records, and no proof suggests he saw them.
      Mr. Day’s medical records and witnesses for the employer painted a slightly different picture. Specifically, an emergency room provider recorded that atient stated that he did heavy lifting yesterday at work, fifty-pound bags . . . stated he awoke with severe radiculopathy in his right leg.” Another notation included that Mr. Day’s pain started “yesterday . . . after lifting stuff at work.”
      Ms. Lundquist wrote in her office note that “atient states he had to move a sheet of metal to one side. Patient states when he did this, a clamp fell onto the ground. Patient bent down to pick this up and felt an immediate grabbing pain to his right lower back.” She also noted that the pain worsened on the way home, and he went to the emergency room.
      Mr. Day’s own nurse practitioner wrote, “Patient states on he was moving a pallet at work and hurt himself.”
      Witnesses from Gold Creek also testified supervisors were at work on the date of injury to whom Mr. Day could have reported the injury, and he violated work rules by failing to do so. Supervisors were also displeased when they gave him the second panel, and he left work without telling them. They eventually fired him for failing to return to work. Gold Creek denied the claim on December 16, primarily because of Mr. Day’s differing versions of the injury.
      Mr. Day argued that he told the providers exactly what happened and could not control what they wrote in his records. He contended that he was able to identify when and how the injury occurred. He requested an orthopedic panel to evaluate his back. Gold Creek countered that it rightfully denied Mr. Day’s claim because he gave differing versions of how he injured his back.  ..  COURT DECISION:   (.html)

♦       Nov 3,  ..  SCD:    Strobert Tree Service v. Unemployment Insurance Appeal Board
 ..  Shaw was employed by STS, a tree removal company, as an estimator until his termination in September of 2022.    Just prior to his termination, Shaw met with an STS customer to provide a quote for tree removal services.    The customer commented that she needed repair work to a door, and Shaw offered to do the work as a side job to his regular employment with STS.    After Shaw completed the side job, the customer was unhappy with the quality of the work and initially refused payment.    The customer claimed Shaw and his partner threatened her and she eventually paid Shaw because she was afraid.    The customer complained to Wanda Hancock-Williams, who works in the office of STS, that Shaw threatened her during that interaction.    Hancock-Williams relayed the complaint to Andrew Strobert, the owner of STS, who then told Hancock-Williams to fire Shaw.    She did so, and Shaw — frustrated that he was fired without being given an opportunity to give his side of the story — applied for unemployment benefits.
     A Claims Deputy first reviewed the claim and determined that Shaw did not qualify for benefits.    Shaw appealed this decision to a Division of Unemployment Insurance Appeals Referee.    No one from STS appeared for this hearing, and the Referee overturned the Claims Deputy’s decision as unopposed.    After STS received the Referee’s decision, STS appealed to the Unemployment Insurance Appeal Board (UIAB), arguing that it had not received notice of the Referee’s hearing.    The UIAB remanded the matter to the Referee, and another hearing was scheduled.
     During the second hearing before the Appeals Referee, Shaw’s partner, who helped him with the side job and was present during the alleged argument between Shaw and the disgruntled customer, testified that the customer avoided paying Shaw, but that no one threatened her.    Hancock-Williams and Strobert—neither of whom had witnessed the interaction between Shaw and the disgruntled customer—testified for STS.    They stated that they were shocked by the allegations from the customer and that Shaw’s alleged behavior reflected badly on STS.    The Referee ruled in Shaw’s favor, explaining that the only evidence submitted by STS was hearsay and that it could not rely solely on hearsay in reaching its decision.    The Referee found that STS did not establish that there was willful or wanton misconduct on the part of Shaw that would warrant his termination for just cause.
     STS appealed the Referee’s decision to the UIAB.     ..  COURT DECISION:   (.html)

♦       Nov 2,  ..  ACWV:    Ferguson v. City of Richwood  ..  Mr. Ferguson was a Class II water treatment operator for the City of Richwood starting in 2017. Originally, his supervisor was then Chief Operator, Norma Cogar.    Ms. Cogar was terminated from her employment for significant neglect of her duties which led to the water plant having difficulty maintaining proper service and fire protection for the city’s citizens. After Ms. Cogar’s termination, Mr. Ferguson continued to operate the plant and fill out daily reports, functioning as his own supervisor.    On December 23, 2018, Mr. Ferguson suffered significant chest pains while working and was transported by ambulance to a local hospital. He was ultimately diagnosed with coronary artery disease and a heart attack, and underwent the placement of two cardiac stents.    He was released from the hospital on December 26, 2018, but remained off work by order of his physician until February 10, 2019. Between December 23, 2018, and February 10, 2019, the City of Richwood placed Mr. Ferguson on paid sick leave.    Mr. Ferguson returned to work on February 10, 2019, with only a limitation to refrain from lifting more than 50 pounds. He later testified that the lifting restriction did not affect his job “since not very physical and wasn’t required to lift heavy things.”    He returned to the same shift and duties after his medical leave, but while he was gone, Mr. White had revamped the policies and procedures at the plant, and the expectations regarding water testing and recording were increased.    According to his employer, Mr. Ferguson was not compliant with new procedures, and his noncompliance became a significant performance issue. Mr. Ferguson allegedly voiced dissatisfaction with the change in procedures and expressed that he felt the old way of doing things was sufficient.    In the short time between his return to work on February 10, 2019, and his discharge on April 22, 2019, Mr. Ferguson received three verbal warnings regarding his failure to adhere to written operating policies and a written warning for failure to comply with written directives.  ..  COURT DECISION:   (.html)

♦       Nov 2,  ..  CAWV.:    Gilhuys v. Hardy County 911  ..  Tammy Gilhuys is the Deputy Director of the Office of Emergency Management/Hardy County 911 Center (“the Center”). Her supervisor is Paul Lewis, the Director of the Center. At the time of filing her complaint, Ms. Gilhuys was fifty years old, and had been employed at the Center for twenty-one years.    Her complaint asserts two causes of action: age discrimination and gender discrimination. In it, she alleges that the Center’s decision to pay her less than younger employees was motivated by her age and would not have been made absent her age. She also alleges that the decision to pay her less than male employees was motivated by her gender.    As Deputy Director, she is an administratively exempt salaried Hardy County employee who assists and reports to Director Lewis. Her duties are administrative, including supervising dispatchers, preparing dispatcher work schedules, processing vacation and leave requests, maintaining employee certifications, and filling in as a mapper, among other things.    Ms. Gilhuys has never worked full-time as a 911 dispatcher but has filled in occasionally for a few hours or days per year. Her regular schedule is Monday – Friday from 9:00 a.m. to 4:00 p.m. with an hour off for lunch, effectively a thirty-hour work week, with no evenings or weekends. She is not eligible for overtime pay.    She receives time off for all County holidays and any other instances when the County Courthouse is closed. Her salary is more than all the dispatchers’ annual pay except for some dispatchers who earn significant overtime pay.    In contrast, the dispatchers, including the Dispatch Supervisor, are paid hourly, work twelve-hour shifts, and are not permitted to leave the premises for lunch. They receive overtime for hours worked over forty hours per week.    Dispatchers do not receive time off for County holidays as they must operate the Center 365 days per year. Dispatchers also work weekends every other week in a rotating schedule. ... CONTINUED.  ..  COURT DECISION:   (.html)

♦       Nov 2,  ..  ACWV.:    Faulk v. MM Bateman Hospital  ..  Mr. Faulk began working at the Hospital as a Certified Nursing Assistant (“CNA”) through a staffing agency, Aureus Nursing, in January of 2017. 2 The Hospital is a psychiatric facility located in Huntington, West Virginia, and operated by the Department of Health and Human Resources.    The workforce at the Hospital includes both full-time employees and those who are contracted through staffing agencies to work for fixed periods of time, such as Mr. Faulk. While working as a CNA at the Hospital, Mr. Faulk received his paychecks from Aureus Nursing rather than the Hospital.    During his time at the Hospital, Mr. Faulk’s initial three-month contract placement was renewed several times.    While at the Hospital, Mr. Faulk’s conduct was the subject of several investigations by Adult Protective Services (“APS”). Alleged incidents included Mr. Faulk transporting a patient without notification in direct violation of Hospital policy, using inappropriate language in front of patients, threatening to inject a patient with a needle during a verbal argument over a card game, and threatening to break a patient’s finger. Mr. Faulk was also involved in an incident where he approached a female nurse from behind and attempted to scare her. The nurse reported this occurrence to her supervisor, who told Mr. Faulk to apologize, and reminded him that this behavior was inappropriate for an acute psychiatric facility.    Another incident involved a patient accusing Mr. Faulk of hitting him in the eye. In total, during his thirteen months of employment, Mr. Faulk was suspended from work five times, causing him to miss 112 days of work. Each suspension coincided with a pending investigating, during which Mr. Faulk’s position was left open, and the hospital functioned with one less CNA.    In March of 2018, the Hospital received a report that a discharged patient claimed that “a black guy named James” had raped her sometime between March 14, 2018, and March 17, 2018. Mr. Faulk was the only employee named “James” or “Jaymes” working at the Hospital on those dates who matched the report’s description. Following this allegation, he was removed from the Hospital’s work schedule pending an investigation conducted by APS. The allegation was eventually found to be unsubstantiated.    On March 27, 2018, Mr. Faulk’s contract with the Hospital was terminated before the investigation into the rape allegation was completed. ... CONTINUED.  ..  COURT DECISION:   (.html)


♦       Nov 1,  ..  DcDC:    Nelson v. Pompeo(State)  ..  Timothy Nelson is employed by the U.S. Department of State (“DoS”).    While employed as a Political/Military Affairs Officer by the Office of Russian Affairs, he used the Equal Employment Opportunity (“EEO”) process to report bullying and the creation of a hostile work environment by his supervisors.    In response, Nelson alleges, his supervisors either ignored his report or intensified their bullying in retaliation for Nelson’s EEO activity.    Nelson then filed a formal EEO complaint.    In his formal complaint, Nelson alleged that his supervisors at DoS were engaged in unlawful retaliation for his prior protected EEO activity.    Specifically, Nelson alleged that his supervisors decreased his areas of responsibility, negatively referenced his EEO activity in performance related discussions, and created a hostile work environment by isolating him, subjecting his work to extra scrutiny, and threatening his security clearance.    An investigation by DoS, followed by a final agency decision, concluded that Nelson’s complaint “did not prove that the Agency subjected him to the alleged discrimination.”    Accordingly, Nelson appealed DoS’s final decision to the Equal Employment Opportunity Commission (“EEOC”).    The EEOC affirmed DoS’s final decision.    Now, Nelson has sought relief in this Court.  ..  COURT DECISION:   (.html)

♦       Nov 1,  ..  6th Cir.:    Johnson v. Kathy Griffin  ..  On April 24, 2021, Samuel Johnson sat down for dinner at a hotel in Franklin, Tennessee.    Shortly after, a group of forty to fifty teenagers began taking prom pictures nearby. The boisterous teenagers apparently disturbed Johnson and other customers, prompting him to ask the chaperone to settle them down.    One of the teens, who was wearing a red prom dress, overheard the request and confronted Johnson, all while his boyfriend filmed the interaction. The video is not a picture (or record) of clarity.    But at a minimum, it captures Johnson saying that the student in the red dress “look like an idiot.”    Kathy Griffin (@kathygriffin), Twitter (Apr. 26, 2021, 1:45AM), https://twitter.com/kathygriffin/status/1386556994560020481?s. And at a minimum, it captures the boyfriend trying to goad Johnson into reacting still more negatively to the student’s attire. Johnson left the hotel to have dinner somewhere else.          Kathy Griffin, a California-based celebrity and social activist, sent a series of tweets to her two million Twitter followers asserting that Tennessean Samuel Johnson, the CEO of Tennessee-based VisuWell, had engaged in homophobic conduct.    She encouraged her followers to make him “online famous” and tagged his company.    She then asked his employer to “remove” him from the Board of Directors and threatened that the “nation w remain vigilant” if it did not.    Within a day of her first tweets, the company fired Johnson and removed him from the Board.    Johnson and his wife sued Griffin in federal court in Tennessee, claiming (among other things) that she tortiously interfered with his employment.    Griffin argued that her tweets did not subject her to the State’s personal jurisdiction, and the district court dismissed the case.    We disagree and reverse.  ..  COURT DECISION:   (.html)

♦       Nov 1,  ..  DcDc.:    Coles v. Howard University  ..  Plaintiff alleges that she was terminated from her job as a ramp agent for Piedmont Airlines in April 2023.    She had submitted a medical note from Howard University Hospital to cover a 27-day period of absences from work, but a hospital staffer advised Piedmont that no patient with Plaintiff’s name had been seen there since January 2019.    Piedmont then fired Plaintiff for falsifying her medical records.    In July 2023, Plaintiff sued Howard University Hospital Corporation and Howard University Hospital (collectively, “Howard”) and Piedmont in the Superior Court of the District of Columbia.    She alleged   (1) violations of HIPAA and D.C. Code § 31–3426;   (2)   violations of the District of Columbia Consumer Protection Procedures Act and the Notification of Security Breach Obligation;   (3) common law invasion of privacy;   (4) breach of contract;   (5) negligence and negligence per se; and (6) negligent supervision.    She brought all six counts against Howard but only the latter two against Piedmont. Both Howard and Piedmont removed the case based on federal-question jurisdiction.    Howard claimed that removal was proper because the first count alleges a violation of federal law under HIPAA and because the remaining claims are “contingent upon whether there was a violation of HIPAA.”    And according to Piedmont, the negligence claims against it arise under federal law because they are completely pre-empted by the Railway Labor Act (RLA).    Now Howard and Piedmont move to dismiss.  ..  COURT DECISION:   (.html)



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