Appellate Law & Practice

CA1: reasonable accommodation issue creates question of fact

Enica v. Principi, No. 06-2187 (10/6/08).  This is an ADA case.  The plaintiff is a nurse that can’t lift heavy things due to a medical condition.  First the first finds that an earlier administrative proceeding was not entitled to preclusive effect, because they didn’t address whether a reasonable accommodation was made.  Although the defendant (the VA) engaged in an “interactive process” the First says that it is a question of fact as to whether a reasonable accommodation was made for the plaintiff.  Before remanding, the First rejects the retaliation claim.

CA1: Drama at Dartmouth’s drama department

Sabinson v. Trustees of Dartmouth College, No. 08-1043.  Academics are generally paid less than lawyers.  Therefore, they fight more.  And harder.  And more drama.  This case is cast under Title VII, 42 U.S.C. § 2000e (2000) et seq., and under the federal age discrimination statute, 29 U.S.C. § 621 (2000) et seq., and for retaliation.  But, really, it is a dispute over the theater department at some school named Dartmouth.

Wikipedia Fact: Dartmouth is a brick and mortar school located in Hannover, NH.

What gets me about all these cases, is that they are all always political.  People often don’t like each other in academic departments.  When they hate each other, one side starts by calling the other incompetent (denying tenure if possible), and the other side claims “discrimination.”  It is difficult for an outside observer to know whose claims are based on generalize rivalries, and whose claims are based on actual discrimination. 

Anyway, the plaintiff loses.  She can’t really point to direct evidence of discrimination.  Likewise, being offered a buy-out isn’t discrimination, either.  Whatever the case, it seems that the “committees” concluded that Sabinson was “damaging” the department.

But here is what gets me: there are lots of academic departments out there that suck.  They suck a lot.  Yet somehow committees do not come down on the likable professors.  The First points out that professional rivalries are not compensable under the federal statute.  Only actual discrimination.

Regarding the retaliation claim, “The filing of a complaint cannot be the basis for adverse employment action but it also cannot immunize an employee from action already planned and not dependant on the complaint. Absent a decision by Sabinson to retire, unwelcome assignments were inevitable regardless of the complaint.”

CA1: Claim preclusion in ERISA suit

Herman v. Meiselman, No. 07-2753 affirms the dismissal of an ERISA lawsuit on claim preclusion grounds.  The First says that the current group of claims are pretty much the same as the cross-claims in the earlier lawsuit.  (“The factual basis for these counts was formed in the same time period and from the same essential dispute as the prior action: the employment relationship, the profit-sharing plan and the parties' differences over them, as well as the validity of the Release given by Meiselman in the First Action.”)

The prior history of this case (and our commentary) can be found here:

• Indianapolis Life Ins. Co. v. Herman, 204 Fed. App'x 908, 910 (1stCir. 2006) (per curiam) (our coverage here); and
• Indianapolis Life Ins. Co. v. Herman, 516F.3d 5, 11 (1st Cir. 2008) (our coverage here)

CA1: affirmative defenses to sexual harassment discussed

Chaloult v. Interstate Brands, No. 07-2694.  This case involves the affirmative defense that an putatively vicariously liable employer may assert in a sexual harassment case under Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998).  Essentially, employers can argue that “its own actions to prevent and correct harassment were reasonable and that the employee's actions in seeking to avoid harm were not reasonable.”  This case comes down to whether the employer “failed to take reasonable care to eliminate harassment when it might occur.”  In this case, it seems, they did.  Of note is the fact that both the harasser and the harassee both had the title of “supervisor.” 

I find it a little interesting that the First says that the Supreme Court made a “policy” judgment in their cases.  Now, we all know that courts entertain and accept policy arguments all the time.  However, usually it is considered bad form to tell the court that that is what you are doing.  And, of course, if you lose, many clients like it if you tell people that the court made a “policy” judgment as opposed to a “law judgment.”

Anyway, Lipez dissents saying that the majority got it all wrong.  If you litigate these cases, you need to take note (or better yet, have already read this case).

CA1: who determines whether a termination is for cause (and defamation)

Noonan v. Staples, Inc., No. 07-2159 (8/21/08) affirms a grant of summary judgment to Staples.  Noonan was fired.  Staples says he was fired “for cause” and therefore it doesn’t have to treat him like a man: he can’t exercise his stock options, and he doesn’t get severance benefits.  It also told 1,500 via email people that he was fired for padding his expense reports.  It normally didn’t humiliate people like this.  Strangely, the amount he “stole” was only about $1,500, which is less than most firms spend on a summer associate outing.  So, I don’t see what Staples is so upset about.

On the stock option agreement breach issue, the First sides with Staples.  This is particularly disgusting. The First say that the question of “cause” is for Staples alone to determine, and that courts must determine whether such a determination was “ arbitrary, capricious, or made in bad faith.”  The First doesn’t really go into why a Massachusetts court would rule this way but seems to just count noses of other jurisdictions. 

On the libel claim, Staples claims that its email was true. Noonan says it isn’t really true, but he admits that he disregarded the letter, not the spirit, of the policy.  The First rejects Noonan’s argument that the whole email painted a very nasty portrait of him, as arrogantly disregarding Staples policy based on a whim.  You have to be an equity partner to do that.  But, for this reason it also rejects the breach of the severance agreement claims: because he didn’t comply with the letter of the contract, Staples gets to not honor its part.

The actual malice theory fails as well.  But, you get a good discussion of the law of libel in Massachusetts, so, if this floats your boat, you can read it.

CA1: race-discrimination case non-starter

Prescott v. Higgins, No. 07-2809.  This is a race discrimination case.  The disparate treatment theory ends with the fact that he couldn’t show that he was qualified for the position he sought.  The disparate treatment side ends when he fails in a claim that the District Court should have taken judicial notice of some disputed statistics introduced in another case.

This case really seems to go nowhere.  I am not 100% sure if it is worth reading all the theories that fail, but it really seems fact-based.

CA1: First steps in to help Fedex when Fedex wrongly treats employee like poor drug defendant

Soto-Lebron v. Federal Express, Nos. 06-2501, 06-2519.  A guy was fired by FEDEX.  He claims Fedex did slandered and libeled him. He gets a jury verdict of $7 million.  The District Court saves Fedex a bit, and then the First helps Fedex some more.  Despite the obvious class issues involved in this case, let’s see if there is any law.

Fedex’s “security specialist”, Jose Pérez tried to intimidate the plaintiff into saying that the hair care products he shipped were drugs.  It is unclear whether Pérez or the plaintiff went to college or not.   Pérez claimed to have been a cop, and tried all sorts of silly cop tricks that the lower classes find fun.  Strangely, the recipient of the hair care products received them without incident. Fedex “investigated” and fired the guy anyway.  If I were him, I would have discussed the situation while playing golf with Fred Smith, the CEO of FedEx. Wouldn’t that be the more mature way to handle the situation rather than making a federal case and becoming emotionally distressed.  Why didn’t he just go work for another law firm like everyone I know would do? After all, the First ends up remanding the damages issue because his testimony regarding damages didn’t show that possible other employers got wind of all the bad stuff that people were saying about him. And, because this is Fedex, not a criminal defendant, such an evidentiary error is not harmless, and even a remittitur couldn’t cure the prejudicial effects. To the First’s credit, they do discuss the law of remittitur. 

Keep reading.

CA1: OSHA was right – they could have turned off the power lines

Harry C. Crooker & v. OSHRC, No. 07-2770.  This case begins when OSHA determines that a live wire is too close to a bulldozer.  The construction company says that it would be infeasible to comply.  But, as an evidentiary matter, the First points out that they could have just shut down the power lines, and the reasons give for not doing that were inadequate.  Whatever the case, there is a discussion of “infeasibility” under OSHA regs. 

To me, this case sound like such common sense, and the fine was minimal.

CA1: specific intent required in ERISA retaliation claim

Kouvchinov v. Parametric Technological Corporation, No. 07-2395 (8/8/08).  This is an ERISA retaliation claim.  The plaintiff claimed that his employer retaliated against him for using his short-term disability benefits.  The claim came the day before a layoff was to take effect.  While he was receiving the benefit, he looked for, and found work at a company that was contracted with his first employer to do the same work he had been doing.  Then his first employer found out and got all mad and stuff.  He sued under ERISA and for tortious interference.  The plaintiff claims that under 29 U.S.C. § 1140, specific intent to interfere with ERISA benefits need not be shown.  Selya, of course, rejects this saying that would turn ever ERISA claim into a retaliation claim.  And, looking at the facts, there appears to be no such intent.  And, because there was no interference, the tortious interference claim fails, too., t

CA1: no administrative tolling in 1983 actions

Moran-Vega v. Cruz-Burgos, No. 07-1682.  This is yet another Puerto Rican political discrimination cases. The big issue is whether the borrowed statute of limitations 42 U.S.C. 1983 are tolled by the pendency of administrative proceedings.  The First rejects a “continuing violation” argument as that the administrative procedures were politically tainted.  Further, under Puerto Rican law, the doctrine of administrative tolling would apply only if it sets out an "identical cause[] of action.”

A timely retaliation theory fails because his claim was not asserted in the amended complaint.

It also deals with a FRCP 59(e)/Fed. R. App. P. 4(a)(4)(A) issue.  Applying Marie v. Allied Home Mortgage Corp., 402 F.3d 1 (1st Cir. 2005), and concludes that since everyone seems to agree that it is reviewing the underlying motion to dismiss, it will review the underlying motion to dismiss despite some awkwardness in handling a motion for reconsideration.