Seventh Circuit: Angela Tonyan v. Dunham's Athleisure

Given empirical practice and the business model of the company, the employer's two documented lists of essential qualifications for the job suffice to deny the ADA claim.  Even if the employee were to delegate those tasks, it would amount is substantial enough that it would amount to a delegation of the job itself.

Angela Tonyan v.  Dunham's Athleisure 

Seventh Circuit: Janet Kotaska v. Federal Express Corporation

Where an essential qualification for employment specifies a range of weight up to a certain amount, a showing of the genuine issue for trial on the maximum amount does not mean that there isn't a genuine issue of fact about whether the plaintiff's capabilities in the range beneath the maximum amount were insufficient.

A showing of capable engagement in the task for three weeks is insufficient to establish that all essential qualifications were met.

Where an employer unknowingly rehires after a year, the initial termination is sufficient nondiscriminatory reason for a second termination.

Dissent: ADA plaintiffs shouldn't have the burden of production for the essential qualifications for the task.  Circuit split flagged.  Summary judgment inappropriate where plaintiff has dispelled initial defense theory.   Second termination letter actually discussed protected conduct.

Janet Kotaska v.  Federal Express Corporation

Seventh Circuit: Scott McCray v. Robert Wilkie

Employer's refusal to replace vehicle in a timely manner states a claim under the Rehabilitation Act.

Claim originating in assignment of offices not pellucid enough, will be developed on remand.

Conduct potentially violating Title VII raised in employer's motion to dismiss insulated employer from Title VII claim when plaintiff didn't make the argument in the reply brief.

Scott McCray v. Robert Wilkie

Fifth Circuit: Houston Aquarium, Incorporated v. OSHC, et al

ALJ correctly accepted analysis on matters other than the ultimate issue from lay witness, as lay witnesses can draw conclusions based on their experience; deft's witnesses appropriately considered lay witnesses, as there was no foundation laid.

Feeding and cleaning dives at an aquarium are scientific, not commercial, given plain meaning and the notes to the regulation, since they gather data and don't involve heavy tools.  Also the protections for commercial divers seem unnecessary in this context.

Houston Aquarium, Incorporated v. OSHC, et al

DC Circuit: Timothy Jeffries v. William Barr

Summary judgment appropriately granted for deft prior to discovery in Title VII suit, given facts in evidence, but abuse of discretion to deny non-movant's challenge as to one claim, as employer's apparent non-compliance with its policy on priority candidates might reveal facts that substantiate the claim.

Timothy Jeffries v. William Barr

Seventh Circuit: Rae McCann v. Badger Mining Corporation

Claim of factual error insufficient for finding of pretextual justification of employment decision where facts do not indicate that employer had knowledge of the facts.

Employer's agreement to transfer request does not raise material fact regarding veracity of employer's reservations.

Given breadth of workforce reduction insufficient showing of suspicious timing.

Emails evincing employer's knowledge of disability insufficient to establish animus.

Rae McCann v.   Badger Mining Corporation

Third Circuit: Holly Judge v. Shikellamy School District

Presumptively valid and willful resignation forecloses any direct claim of discriminatory duress.  Multi-factor test from 9th governs.

http://www2.ca3.uscourts.gov/opinarch/172189p.pdf

Sixth Circuit: Jesse Busk v. Integrity Staffing Solutions

Door to door utility canvassers are subject to the travelling salesman exception to the statute, since although the utility has the final power to ratify the sale or not , gaining the consent of the customer is the work of the salesman.

Although the portal-to-portal act puts some security screening time outside the Labor act's compensation mechanism, state law might cover the claim, since state law does not mimic the exception, and work need not involve exertion.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0207p-06.pdf

Eighth Circuit: Samuel Scudder v. Dolgencorp

Genuine issue for trial presented as to disputed resignation where (1) management construed the conversation as a resignation, and employee later disputes; (2) returning military employee filed application through main system rather than the personnel agent who had handled his earlier military leave.

As SSA doesn't consider reasonable accommodation, a claim of disability doesn't judicially estop the plaintiff from claiming a right to employment during the same period.

http://media.ca8.uscourts.gov/opndir/18/08/172941P.pdf

First Circuit: Carlson v. University of New England

Where an employer claims that an allegedly retaliatory transfer was voluntary, misrepresentations made by the employer to the employee must have a non-retaliatory justification in order to prevail at summary judgment.

In order to present an issue for trial, a claim that an annual raise was artificially low must be supported by a benchmark of prior years salary decisions.

http://media.ca1.uscourts.gov/pdf.opinions/17-1792P-01A.pdf

Sixth Circuit: EEOC v. Dolgencorp, LLC

Plaintiff gains the benefit of a longer statute of limitations on the federal claim by filing a state claim alleging discrimination, but not necessarily discrimination under the same theory as the federal claim.

Denial of request for a reasonable accommodation sufficed for discrimination -- plaintiff had no duty to request alternate accommodations.

Award of fees correct.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0163p-06.pdf

Eighth Circuit: United States v. DNRB, Inc.

Sufficient evidence for conviction of corporation, as the relevant regulation requires that the workers "shall be protected" by the safety device, so mere provision of the device, followed by the supervisor's observation that it wasn't being used sufficed; the fall was a foreseeable and natural result.

Evidence of other safety omissions was properly admitted, as it helped to establish a knowing violation of the rules.

Sentence was procedurally correct, as there was no need to mechanically recite all of the factors, and a fine beyond the apparent means of the corporation might legitimately have been aimed at revealing any hidden funds.

http://media.ca8.uscourts.gov/opndir/18/07/173148P.pdf

Fifth Circuit: John Stroy v. Department of Veterans Affairs

Mere proximity to a filing's cutoff date is not a sufficient basis for equitable relief; a reason for relief must be articulated.

Convening of a physician review panel is an insufficiently adverse employment action to present an issue for trial as to retaliation.

http://www.ca5.uscourts.gov/opinions/pub/17/17-30373-CV0.pdf

Sixth Circuit: Heidi Hostettler v. College of Wooster

There is an issue for trial when a plaintiff claiming disability or gender discrimination claims that she can perform all required work within a shorter amount of time; absent a showing to the contrary, the task is not necessarily defined by the number of hours required.

Employer can be estopped from claiming that the amount of leave taken exceeds that protected by the Act when the employee relies to her detriment on an assertion to the contrary, presenting an issue for trial.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0140p-06.pdf

Fifth Circuit: Kymberli Gardner v. CLC of Pascagoula, L.L.C.

In a Title VII action for hostile work environment, when an employer becomes aware of harassing or violent conduct by a thord party, it has an obligation to attempt a remedy.

A wrongful termination action under the same statute presents an issue for trial where the protected activity is a refusal to deal with the harassing third party and there is a showing of direct evidence associating the refusal with the firing.

http://www.ca5.uscourts.gov/opinions/pub/17/17-60072-CV0.pdf

Seventh Circuit: Anthony Simpkins v. DuPage Housing Authority

In considering whether a worker is an employee for the purposes of the FSLA, questions of fact are reviewed for clear error, while questions of law are reviewed de novo; at summary judgment, though, since the court makes no findings of fact, the question of genuine issue of material fact is reviewed de novo.

Here, sufficient question for trial.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-20/C:17-2685:J:Bauer:aut:T:fnOp:N:2173923:S:0

DC Circuit: Cellco Partnership v. NLRB

When holding that employees dismissal for untruthfulness was pretextual, ALJ impermissibly intruded into business judgment by determining that other violations of company policy that were generally unpunished were more severe.

Discussions involving Section 7 matters are not categorically shielded from such rules.

https://www.cadc.uscourts.gov/internet/opinions.nsf/8BA86CC8FAF54C77852582B10051858A/$file/17-1158-1736658.pdf

Tenth Circuit: Odom v. Penske Truck Leasing Co.

Remand to District Court after certified question to examine whether affiliated company had a persona distinct from the employer for purposes of workers compensation.

A motion to dismiss a suit in federal court on the basis that state law deprives state courts of the ability to hear a similar claim asserts not a lack of jurisdiction, but the invocation of a waiveable affirmative defense that should be construed as a motion for summary judgment.

https://www.ca10.uscourts.gov/opinions/17/17-6065.pdf

Third Circuit: Marie Gillispie v. Regionalcare Hospital Partners

Whistleblower who merely objected in internal meetings to non-reporting of facts already known to the decisionmakers does not qualify for the protections of the federal statute.

State common-law employment protections are preempted by the state whistleblower statute.

http://www2.ca3.uscourts.gov/opinarch/164307p.pdf

Ninth Circuit: Patricia Campbell v. EDU-HI

Employer's loss of a performance report is not, by itself, an adverse employment action. 

Investigation of employee that did not affect her working conditions was not an adverse employment action; the suggestion that others were placed on paid leave while under investigation did not make the continued conditions of employment an adverse action.

Denial of transfer not adverse, since application was untimely.

Music and dance teacher did not establish that classes other than remedial math were available to teach; the assignment therefore was not an adverse one.

Lack of comparators for most claims.

Claim of hostile work environment from student animus is defeated by district's incremental and timely response.

Employer's speech in workplace reasonable.

As no adverse action, no retaliation; actions had sufficient neutral justification.

Standards for Title VII claim identical to Title IX claim.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/11/15-15939.pdf