Appellate Law & Practice

CA1: unions v. erectors

American Steel v. Local Union No. 7, No. 07-1832.  Okay... labor law.   Some steel “erectors” complain that the big bad unions are conspiring to shut-non-union companies out of the erection market.  The unions, it seem, subsidize the higher cost of union labor, making it possible for union contractors to bid competitively.  The unions argue that their activities are protected by the statutory exception to the antitrust laws that lets unions be unions.  But the First says that what is really happening is that a labor group is conspiring with a non-labor group.  The First says that this can't be resolved on summary judgment because there seems to be some conspiracy to actually shut some companies out of the Boston erection market.

There probably is a lot of labor law nerdery in here, but I gotta go watch the Czech Squat-thrusters practice. 

CA1: no emotional damage for age discrimination

Collazo v. Nicholson, No. 06-2678 (7/24/08).  This is an age discrimination complaint seeking damages for mental and emotional distress against the VA.  While it was booted on summary judgment, the First says affirms on an alternate ground, saying that the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634.  After going out of its way to show why it thinks that plaintiff is a jerk (which is really impossible to verify one way or the other), the First says that damages for mental and emotional distress are not available.  Only pay and equitable relief. 

CA1: forfeiture in employee stock plan okay

Weems v. Citigroup. No. 06-2565 (7/24/08).  This is a pretty large MDL case, in which the plaintiffs claim that it is wrong for their employer to give them the option of receiving part of their salary as stock (at a discount rate), but requiring them to forfeit said stock if they “voluntarily” leave the company before they “vest” (usually after two or three years). 

Despite the fact that most of the people involved in litigating this issue probably tell everyone they meet that they work in “securities” this comes down to a fairly straight-forward contract claim.  Not really that glamorous.  The First says that there was no breach of a contract. 

Someone found a memo which says that the purpose of this thing is to punish people that go work for competitors, and therefore it is an unlawful restrictive covenant.  (There are far, far, worse things companies do to their employees.)  But the First says this is fine, because forfeiture occurs whether or not they work for a competitor.  This doesn't really ring true, and it seems they are not taking this part of the argument too seriously.

Similarly, the First treats the rest of the common-law contract claims (under Florida law) with almost no degree of seriousness. 

CA1: gender discrimination case lacks smoking gun

Garcia v. Bristol Myers Squibb, No. 07-2723 (7/23/08) affirms a grant of summary judgment (first rejected by a magistrate judge) to the defendant in a gender discrimination case.  The First says that the facts don’t support a disparate treatment claim, and contains no “smoking guns” (though some inconstant statements).  While this would seem to be a run-of-the-mill gender discrimination failure, I wonder why the magistrate thought otherwise. 

CA1: another ERISA standing case

Evans v. Akers, 07-1140 (7/18/08).  This is an ERISA case.  I will read it in more detail later.  But it comes down to this holding:

hold that former employees who allege that fiduciary breaches reduced their lump-sum distribution from a defined contribution plan have standing to sue as "participants" under [§ 502(a)(2) of ERISA, 29 U.S.C. § 1132(a)(2)].

The appellees argue that the plaintiffs are not seeking “benefits” but “damages.”  The First figures that “the full ‘benefit’ to which the participant is entitled by a defined contribution plan is ‘the value of [her] account unencumbered by any fiduciary impropriety.’”  Then, they justify their conclusion with a bunch of cites to other circuits and policy reasons.  So, whatever the case, the plaintiffs have standing and the District Court has jurisdiction. 

The backstory involves the fact that the plan invested in the employer, W.R. Grace’s stock.  This stock wasn’t doing too well because of the asbestos-related product-liability litigation. 

CA1: Postal age discrimination coming back

Gomez-Perez v. Potter, No. 06-1614.  As you know, the First first heard this case in Gómez-Pérez v. Potter, 476 F.3d 54, 56-57 (1st Cir. 2007) and we covered it here.  Then the Supreme Court reversed, and held that 29 U.S.C. § 633a (public sector age discrimination) provides a remedy for retaliation for filing an age discrimination complaint.  The Supreme Court expressed no view on the part of the First’s holding regarding sovereign immunity.  So, the First remands to the District Court to figure out what to do.

CA1: ERISA preemption and removal – a very sexy dance

Negron-Fuentes v. UPS SCS, No. 07-2463.  This is a sad, but fun case.  The plaintiff took short term disability leave from UPS to be treated for a brain tumor.  When he visited UPS, as he was recovering, the folks there were not that nice to him, and made him depressed.  His benefits plan then told him that he could either apply for long term disability or seek reinstatement.  Then, “psyche!” the plan told him that his benefits had not vested.  This was to be the first of many “Psyches!”  However, the First eventually figures out that the District Court overdid claim preclusion on claims that might be ERISA claims.  (By the way, I had a very similar problem as a Civ. Pro. final.  Since most of you went to law schools that teach “local law” you wouldn’t understand.)

So, he sued in Puerto Rico Superior Court asserting state claims.  UPS removed, arguing that his actions were completely preempted by ERISA.  In Federal Court, he added on a bunch of federal claims.  The District Court dismissed the state-law claims without prejudice.  He then went back to state court and asked to “reopen” them (to avoid a statute of limitations problem).  UPS opposed this in the state court, but lost at the state trial and appellate courts.

CA1: First tries to fix procedural problems in post-verdict political discrimination issues

Negron-Almeda, et al v. PR Trade and Export. Nos. 07-2013, 07-2140.  This was a Puerto Rican political discrimination suit.  The plaintiff won.  The District Court granted reinstatement and backpay and didn’t let the agency intervene (as of right) because it was filed late in the proceedings.  More later.

This was a Puerto Rican political discrimination suit under 1983.  From what I can tell, the Puerto Rican culture revolves around political discrimination.  I don’t think they do anything else down there.

Anyway, he plaintiff won.  The District Court granted reinstatement and backpay and didn’t let a successor defendant agency intervene (as of right) because it was filed late in the proceedings.

Earlier on, the official capacity claims were dismissed on summary judgment, which is strange, because it looked like the plaintiffs were seeking injunctive relief.  Then, at trial, the District Court granted judgment as a matter of law the individual capacity claims against some of the defendants.  In an earlier appeal, the First reversed, and they retried the case.

After the second trial, the District Court issued a decree providing for reinstatement anc back pay, and nothing that “it was never its intention to bar Plaintiffs from seeking and obtaining equitable relief at the time of the [2004] dismissal of their monetary claims against Defendants in their official capacities.”  That doesn’t make sense.  The defendants moved for some clarification as it seemed like the court was ordering some kind of retrospective relief.  The District Court said that the defendants were entitled to qualified immunity and therefore the caselaw on whether “backpay could not be awarded against an individual employee but only against an employer.”  The successor agent said it should be able to intervene because any award of back pay would be against it.  The District Court said the motion to intervene was untimely.

The First says that the agency’s motion to intervene should have been granted.  It says that the District Court, got overly hung up on the timing of the motion and didn’t seem to care about the other FRCP 24(a)(2) factors.  The First points out that the 2004 order was confusing and ambiguous and screwed everyone up, because the defendants were under the impression that the claims for reinstatement were no longer moving forward.

More interesting is an argument that they had an implicit cause of action under Ex parte Young, 209 U.S. 123 (1908) .  This was advanced by the plaintiffs at oral argument, but the First says that this wasn’t contained in the pleadings and it was waived anyway.

The First also says that the motion to intervene, made a month after the grant of equitable relief wasn’t too late, given the circumstances.    So, the successor agency should have been able to intervene.

On the merits of the backpay, the First takes it away.  The First reasons that “It is settled law in the federal courts that backpay as such cannot be awarded against a defendant in his or her individual capacity...backpay is an award against an employer and, thus, any demand for backpay from an individual-capacity defendant is a non-sequitur...a suit for backpay, even one brought under a tort-like cause of action such as that supplied by section 1983, necessarily stems from the contract of hire — a contract to which the individual-capacity defendant was never a party.”  The First says this applies to retirement contributions as well.  Then, it tries to rebut the inevitable firestorm of snarky comments from the hundreds of blogs that focus on the First Circuit:

Lest the cynical among us suggest that cold logic has robbed the plaintiffs of their just desserts, we hasten to add that this rule is in no way inequitable. While backpay as such cannot be imposed upon an individual-capacity defendant, a successful plaintiff is nonetheless entitled to receive compensatory damages against such a defendant.  Properly proven, those damages will equal the grand total of the plaintiff's aggregate lost wages and benefits.

Finally, the First ends by saying that the plaintiffs can and should try and vacate that earlier confusing summary judgment order.

CA1: another age discrimination claim fails

Arroyo-Audifred v. Verizon Wireless, No. 07-1661 affirms a grant of summary judgment in an age discrimination case.  Some claims are resolved on statute of limitations grounds, and some are resolved because the plaintiff messed up the summary judgment procedure.  The grounds for not promoting the plaintiff were a lack of “professional maturity” (ah, nice and vague).  The plaintiff claims that a “yawn” during an interview showed some animus.  But, the First doesn’t buy that.  Strangely, we all know that in real interviews, if someone yawns it means that the entire interview is a sham and that the interviewee’s time is being wasted.  For this reason, I believe that employers should be required to post bonds before interviewing people.  There were a bunch of other small comments, but the First says that they don’t indicate any discriminatory animus.

The First pauses to note that when submitting an “opposing statement of facts” for purposes of R. 56 and the local rules that it is insufficient to say “ "Denied, as it is a matter of veracity for the jury to assess, together with all the circumstances in the case."  In essence, specific facts are required. 

CA1: affirmance for failure to follow local rules on summary judgment

Sanchez-Figueroa v. Banco Popular, No. 07-1013.  This appeal of an ADA case seems to really be affirming summary judgment for failure to comply with Puerto Rico’s Local Rule 10(b) (translation of exhibits from Spanish to English); and having a counter-statement of facts that wasn’t concise. 

The First seems says it isn’t opinion on the underlying issue, but the plaintiff seems to have suffered some kind of mental breakdown due to some interaction at the office. 

However, based on whatever record does make it to summary judgment, the First says that the condition appeared temporary.