Fifth Circuit: United Steel, Paper and Forest v. Anderson

 

As none of the comparators had records as bad as that of the plaintiff, and all of the other plaintiffs derived their interest from the plaintiff's claim, the issue of pretextual justification doesn't present a question for trial.

Equal Protection claim on behalf of the association to which plaintiff belonged is precluded by Supreme Court precedent as a class-of-one claim given the context of discretionary public employment.

Mere assertion that state officers granted immunity by the district court were acting outside the scope of their duties and not in good faith constitutes a forfeiture of the issue on appeal due to lack of argument.

https://www.ca5.uscourts.gov/opinions/pub/20/20-50501-CV0.pdf

Ninth Circuit: Decker Coal v. Pehringer

 

ALJ decisions on motions for reconsideration or modification of award under the statute are reviewed for abuse of discretion, since the statute grants the ALJ broad discretion, and judgments on motions to reopen and reconsider in other areas of law receive similar deference.

As the ALJ's have no policymaking role and are employed in the implementation of the statute at the discretion of the Executive, the protections against removal of ALJ's so employed do not violate Article II powers of the Executive.

ALJ's are judges who make decisions that are subject to vacatur by people without tenure protection.  Properly appointed ALJ's don't trammel on the President's executive power.

Finding of inproper removal protections would not imperil the decisions of a lawfully appointed ALJ that have been susbsequently ratified by the Secretary.

Given the specific procedure in the statute, ALJ did not abuse discretion in denying motion to reconsider and modify; the statute empowers the agency to administratively modify the finding, and specifically forbids the initiation of a reconsideration before an ALJ.  Given the interest in finality, no abuse of discretion in denying motion to reopen.

Once the presumption arising from fifteen years of work in similar considtion arises, the burden shifts to the employer to disprove total disability due to pneumoconiosis.  

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/16/20-71449.pdf

Fifth Circuit: Lindsey v. Bio-Medical Applications

 

As employer never made working on leave a condition of employment or threatened employee with adverse consequences, lack of assignment of the employees duties to another in the interim did not interfere with the exercise of the statutorily guaranteed leave.

The distinction between actual due dates and horatory due dates presents a genuine issue for trial on the claim of pretextual basis for retaliatory action.

State law whistleblower claim would require an actual violation of state law, not merely discusion of an illegal practice.

https://www.ca5.uscourts.gov/opinions/pub/20/20-30289-CV0.pdf

Ninth Circuit: Kennedy v. Bremerton School District

 

High school coach's demonstrative religious actions at the center of the field immediately following the game were performed as a public employee in the course of performing the responsibilities of the job.  

The actions cannot be considered personal and private because of the coach's prior attempts to publicize them.  The collective nature of the activity on almost every occasion establishes that an objective observer would conclude that the practice, coupled with the exclusion of others who might seek access, was an endorsement of a particular religion.

Regulation of coach's conduct was sufficiently narrowly tailored to survive strict scrutiny, given the need to avoid a violation of the Establishment Clause.

School district had no obligation under Title VII  to rehire, given the violation of policies.  Plaintiff can't establish a Title VII disparate treatment claim, as there were no comparators engaged in perceptible prayer.  As the coach's only request was public prayer at midfield after the game, school district was not compelled to accept it as a reasonable accommodation of a practice of bona fide religious belief conflicting with job responsibilities, and it was a sufficient basis for the adverse employment action.

CONCURRENCE:

Fact-driven holding.  (Analysis tracks majority opinion.)

Kennedy v. Bremerton School District

Ninth Circuit: Freyd v. University of Oregon

 As the comparison of duties between privately funded and federally funded research academics is fraught with judgment, not law, their equivalence is a genuine issue of material fact for trial.

The standard under the state law is broader than the federal standard, reasoning from the greater, there is an issue for trial on the state claims as well.

As plaintiff in disparate impact claim wasn't challenging thempe practice of retention raises, but additionally suggesting that the salaries of the cohort be raised as well, it is an attack on a specific process, not general one.  The existence of an alternative undercuts the claim of business necessity.

Although statistics derived from small sample size have less probative value, disagreement among experts as to the validity of the numbers can suggests a triable issue.

As the plaintiff never engaged in retention raise negotiations, there is no issue for trial on state and federal disparate treatment claims or Title IX.  Insufficient evidence of intentional discrimination for state ERA claim.

DISSENT:

Equal Pay Act requires a case-specific examination of the actual job performance and content.

Full Professors are like professional athletes.  Significant differences in all of the jobs for the members of the plaintiff's department.

State claim only requires a common core of tasks, which presents an issue for trial.

Retention negotiations are elective -- each professor chooses to engage or not. Small sample size.  The practice is a business necessity.

Freyd v. University of Oregon

Seventh Circuit: Nancy Bailey v. OWCP

 

State workers compensation award calculated based on the percentage of disability and awarded as a lump sum, minus attorneys fees, with payments then disbursed as pro rata as monthly payments is a state award that statutorily offsets the subsequent federal indemnification of the federal award against the bankrupt employer where the pro rata state award weeks are within the federal benefit period.

Nancy Bailey v. OWCP

Federal Circuit: Santos v. NASA

 

Agency had an obligation to establish by substantial evidence that the employee's performance was subpar both after the notice of potential dismissal and before the notice of potential dismissal.  Upon sufficient showing, the burden would then shift to the employee to establish discriminatory motive.

When the employee asserted that the performance report was due to protected military service commitments, administrative review had an obligation to assess the relevant factors, rather than just saying that the case hadn't been made.

Santos v. NASA

Eighth Circuit: Lukeus Scott v. Key Energy Services, Inc.

 

Since, after the accident, the device manufacturer was merged into the injured employee's employer, the manufacturer can't presently be considered a third party tortfeasor, even the the person of the employer as successor in interest.

The law of the state disfavors the dual capacity exception to exclusive liability.

Dissent: The state's courts have recognized an exception where there is a distinct, separate legal persona.

Lukeus Scott  v.  Key Energy Services, Inc.

Seventh Circuit: Kevin Pack v. Middlebury Community Schools

 

The website statement preexisting the nondisparagement agreement that applied to prospective communication, statements, and conduct did not breach the agreement, since the statement was published to the website before the agreement.

Litigation affidavit enjoyed absolute immunity from the nondisparagement terms, since it was relevant and pertinent to the matter before the court.

Statements made to plaintiff's agents posing as prospective employers did not implicate the nondisparagement agreement's limitations on communications with potential employers.

Kevin Pack v. Middlebury Community Schools

Fifth Circuit: Perry v. VHS San Antonio Partners

 

Although the hospital had the authority to order the physicians' group to terminate the services of one of its employees providing services at the hospital, that single fact is insufficient to present a genuine issue of material fact for trial on the question of whether the two enterprises were sufficiently integrated to create liability under the act.

The two entities also, as a matter of law, were not joint employers of the plaintiff, as the hospital did not have the power to hire, the plaintiff set his own schedule, and the two enterprises were not economically integrated.

Plaintiff did not have a contractual relationship with the hospital sufficient for a S1981 claim, and the two entities were sufficiently distinct to establish that he wasn't a contractor of the hospital.

Perry v. VHS San Antonio Partners

Federal Circuit: Brenner v. DVA

Administrative remedy for unfavorable employment action must consider the penalty imposed,  not because it has the power to mitigate it, but because it forms part of the substance of the decision.

Error for the agency to remove an employee under the non-retroactive statute for conduct occurring before the statute became law.

Brenner v. DVA

Fifth Circuit: Wright v. Un Pac RR

 

Although a plaintiff alleging a discriminatory retaliation need not provide evidence at the pleading stage, the facts described in the pleadings must allow an inference that the conduct alleged resulted from the protected conduct.

As the termination resulted from a situation that was a matter of past practice, the deviation from that practice concerned an implied term of the existing CBA, and was therefore appropriately categorized as a minor dispute subject to arbitration.

State law antidiscrimination provisions preempted by federal labor law requiring arbitration.

Wright v. Un Pac RR

Fifth Circuit: Le v. Exeter Fin, et al

 

As the vested equity valuation was contractually assigned to the Board of Directors, a motion for a discovery continuance to reach outside auditors' valuations of the vested equity was untimely; an appeal challenging the exclusion of evidence must specifically identify the evidence and the legal standard.

Non-zero determinations of vested equity at time of hiring and in subsequent audits did not make the Board's determination of nil value unreasonable.

An unenforceable agreement to later agree on a severance agreement did not create any obligation on either party when severance happened prior to the formation of the agreement.

Claim of fraudulent inducement under state law requires actual reliance.

Misrepresentations of prior employment foreclose equitable relief in quantum meruit.

Discovery stipulation between parties during discovery was inappropriate, as the unilateral declaration of secret materials prevents the court from conducting the necessary public interest balancing when deciding whether the record should be sealed.

Le v. Exeter Fin, et al

Second Circuit: Jin v. Shanghai Original, Inc., et al.

 

 A named class representative retains an interest similar to a private attorney general in vindicating a class claim where the class has been decertified, even if the class representative has subsequently prevailed on the merits as a private plaintiff.

A court retains the obligation throughout the litigation to sua sponte decertify a class that no longer meets the requirements of the rules; no finding of a significant intervening event is required.

The court has no sua sponte obligation to reform the class to meet the rules prior to decertification.

Jin v. Shanghai Original, Inc., et al.

Sixth Circuit: Merrilee Stewart v. IHT Ins. Agency Group

ERISA claim  would be foreclosed by res judicata given the court proceedings related to the term of employment, even if the arbitration-ordered release of claims were to be vacated.

Merrilee Stewart v. IHT Ins. Agency Group

Sixth Circuit: Karst Robbins Coal Co. v. OWCP

 

Earlier administrative determination of employer's identity does not bind later adjudication under claim preclusion, since the earlier determination found no liability, and the determination of the employer's identity was therefore not essential to the decision.

Administrative regulation, state law, and equitable considerations of delay prevent an ex ante rescission of workers' compensation insurance contract, where that rescission would defeat the insurer's liability for adjudicated claims.

No 5A DP violation where the agency's administrative error was in a proceeding that eventually proved nondispositive.

Karst Robbins Coal Co. v. OWCP

Fifth Circuit: Donald Calhoun v. Jack Doheny Companies, Inc.

Given the evidentiary proffers of the parties at the preliminary injunction stage, state law compelled the court to attempt a reformation of the noncompete agreement as opposed to a preliminary injunction enjoining enforcement on the basis of overbreadth.

Donald Calhoun v. Jack Doheny Companies, Inc.

Fifth Circuit: Six Dimensions, Incorporated v. Perficient, Inc.

 

District court "misapplied" its discretion by recognizing two contracts in its holding, but only reversing its holding as to one on the motion to reconsider due to the fact that the other party had not argued the second contract; the other party was not sufficiently put on notice by one sentence mentioning the agreement in a brief.

Statute's categorical bar on contractual restrictions on subsequent employment, followed by closely defined exceptions, creates a presumption that the statute ratifies the common law antipathy to such restrictions, rather than a rule of reason.

State consumer protection law in the state law elected in the contract doesn't apply, as there is a common law presumption against its extraterritorial exception, and no conduct harming consumers occurred in the state.

Continued possession of potential trade-secret materials from prior employer insufficient to establish acquisition under the law of the state.

Six Dimensions, Incorporated v. Perficient, Inc.

Tenth Circuit: Frappied v. Affinity Gaming Black Hawk

Mixed claims sounding in both gender and age are cognizable under Title VII.

Clam sufficiently states the age and gender claim by reciting the gender of the plaintiffs and that they are older than 40.

~96% chance of firings being non-random across age and gender suffices to create a plausible inference of discrimination.

Even given the statistical possibility of discrimination, no facts raising an inference of discrimination on the basis of gender were pleaded, so the non-random employment actions are susceptible of other explanations.

Given statistical analysis of terminations and the demographics of the new employees hired, the suit states a claim for disparate impact under the ADEA.

Median ages of terminated and new employees suffice to state a claim for disparate treatment under the ADEA, but employer met the burden of producing a nondiscriminatory basis.  Sufficient issue for trial on whether these post-hoc rationales were pretextual.

Frappied v. Affinity Gaming Black Hawk

First Circuit: TLS Mgmt. and Mktg. Ser. LLC v. Rodriguez-Toledo

A client file compiled by an asserted secret process containing asserted secret insights is not itself protected as a trade secret absent a division of public and nonpublic material within it and a specific claim for certain nonpublic material or processes.

A claim of trade secret for a business process must establish more than the fact that it is not known -- the claim must also establish that it is not ascertainable from public sources.

Nondisclosure agreements implicate the same public policy concerns of the forum state as do non-compete clauses.   Here, the agreements' broad scope, including general knowledge acquired on the job, particular knowledge acquired that was already public knowledge, and information provided by third parties, make the agreements unenforceable under the public policy exception.  Courts will not rewrite or narrow the contract, so the nondisclosure agreement is void in its entirety.

 TLS Mgmt. and Mktg. Ser. LLC v. Rodriguez-Toledo