Kentucky Employment Law Notes

NLRB General Counsel puts priority on protecting new bargaining relationships

In General Counsel Memorandum 06-05, April 19, 2006, General Counsel Meisburg announced a new emphasis in protecting new bargaining relationships and "first contracts."  He stated, in part:

In order to protect these new bargaining relationships, and therefore protect employee free choice, I am asking the Regional Offices to focus particular attention on remedies for violations that occur during the period after certification when parties are or should be bargaining for an initial collective bargaining agreement. As a major part of this remedial initiative, I want Regional Offices to consider two types of potential relief in cases involving initial contract bargaining violations: (1) Section 10(j) relief and (2) special remedies as part of the Board’s order.

Judge Russell grants employer summary judgment in age and race case

Last week in Stone v. Ballard County BOE (click here:Download Stone0406.pdf), Judge Russell (W.D . Ky) dismissed Stone's age and race discrimination claims.  The age claim was dismissed because the person hired to replace Stone was also over age 40 and was only 6 years younger than Stone. The race claim was dismissed because Stone could not present evidence sufficient to establish the employer's stated reason for termination was pretextual.   The stated reasons were:

Stone used a bus monitor, who had pending criminal charges, against the instruction of his supervisors; Stone dropped off a young student at a bus stop, who was a 2nd grader or younger, without a parent or guardian there to receive the student; and Stone failed to do a walk through at the end of his shift, which resulted in Stone not realizing he had left a student on the bus after his shift was over.

Stone pointed to Caucasian employee who also failed to do a walk through.  The court, however, held that that employee was not similarly situated because, as opposed to Stone, that employee did not have pending two other infractions.  The court held there was "no dispute" the above infractions occurred.  Query whether J. Russell will find there was sufficient evidence to warrant a denial of employer's attorney's fees? See post below.

Judge Hood denies attorney's fees to successful employer in age case

As discussed in a prior post (click here), on January 31, 2006 Judge Hood (E.D.Ky) dismissed the pro se plaintiff's age discrimination claim in Jones v. Smith-McKenny Co. because he could not produce evidence sufficient to establish the employer's articulated reason for his discharge was pretextual.  Last week Judge Hood denied the employer's motion for attorney's fees.  The decision (click:Download Jones0406.pdf) is worth reading for a couple of reasons.  First, it fairly extensively sets out the law regarding recovering attorney's fees in civil rights cases.  Second, it reminds us what a hassle a pro se plaintiff can be.  Ultimately, Judge Hood concluded:

At the present time, taking into account the fact that Plaintiff proceeded pro se, the Court can not find that the suit was frivolous or filed in bad faith because it was supported by some, albeit insufficient, evidence. Any further action by Plaintiff, however, would not be looked at in the same way.

Kentucky Jobless Rate Down

From the DOL press release:

Kentucky’s seasonally adjusted unemployment rate dropped to a preliminary 6 percent in March 2006 from a revised 6.3 percent in February 2006, according to the Office of Employment and Training, an agency of the Education Cabinet. March’s preliminary jobless rate was above March 2005’s rate of 5.8 percent. Kentucky’s seasonally adjusted unemployment rate dropped to a preliminary 6 percent in March 2006 from a revised 6.3 percent in February 2006, according to the Office of Employment and Training, an agency of the Education Cabinet. March’s preliminary jobless rate was above March 2005’s rate of 5.8 percent.

Read the full release for more details.

FMLA claims subject to arbitration

Earlier this month in Mason v. BFS Diversified Products, LLC (click here:Download Mason041306.pdf  ), Judge Reeves (ED.Ky) held that FMLA claims can be arbitrated.  Although the 6th Circuit has not squarely addressed this issue, Judge Reeves noted that other district courts in the circuit have.  He stated, "There is no indication that Congress intended claims under the FMLA to be exempt from arbitration under the FAA."  J. Reeves dismissed Mason's action, without prejudice, and compelled Mason to pursue her claims through an arbitration agreement to which she was a party.

Age discrimination claim dismissed because decision was based on objective criteria

On April 21, in Conner v. State Farm (click here:Download Conner0406.pdf), J. Russell granted State Farm's summary judgment motion dismissing Conner's age discrimination claim.  Conner had claimed she was not selected for a position because of her age.  State Farm produced interview scoring sheets establishing that the successful candidates had higher scores.  The case is straightforward and is noteworthy principally because of Judge Russell's reminder that a "plaintiffs, however, may not prove pretext by attacking the soundness of an employment decision."

EEOC Guidance on Race and Color Discrimination

Click here to go to the EEOC's new guidance on race and color discrimination.

6th Circuit dismisses Ky. negligent supervision claim where harm was unforseeable.

Doe v. Magoffin County is a long opinion from the 6th Circuit that mostly addresses public official immunity issues.  The opinion, however, also addresses the state of Kentucky law regarding negligent supervision.  In dismising plaintiff's negligent supervision claim, the court stated:

In Z.A. ex rel. S.A. v. City of Louisville, No. 2004-CA-001189-MR, 2005 WL 1491554, at *4 (Ky. Ct. App. June 24, 2005), the Court of Appeals of Kentucky held that, as a matter of law in a negligent-supervision claim, a library staff could not have foreseen that one of its computer-lab assistants would sexually assault a juvenile, even though that same assistant had displayed a picture with sexual overtones on an overhead projector three weeks earlier. In this case, Doe has not pointed to any kind of evidence that would potentially put Salyer on notice that Patton would sexually abuse another. Because Salyer had no notice, constructive or otherwise, that Patton would sexually assault or imprison Doe, Salyer owed no duty to Doe to prevent the unforeseeable harm that occurred. Doe’s state-law claims for negligent supervision also fail because the harm that occurred was unforeseeable.

Ky COA holds that employee suffered "adverse employment" action.

What is and is not an adverse employment action for retaliation claims is a hot topic.  See Proferssor Runkel's post on the matter.  Last week in Super 8 Motel v. Hatcher (Unpublished), the Ky. COA held that in a KRS 342.197 (Workers' Comp. Retalition) claim, the plaintiff presented sufficient evidence of an adverse employment action where:

[Supervisor] had harassed him, filled his position only after he notified her that he was medically released to return to work, ... offer[ed] a lesser job (housekeeper) with less pay, and ... post[ed] signs implying [plaintiff] had committed fraud.

6th Circuit finds employees were paid on "salary basis," notwithstanding pay periods where they received less than their predetermined salary

Detroit Edison requires all employees, exempt and non-exempt, to record in a computer system their hours worked.  Paychecks are cut based on these hours.  Some non-exempt employees work 12 hours shifts, such that in one week they work 36 hours, and the next week they work 48 hours.  In the 36-hour week they are expected to enter 4 "free" hours to ensure the computer calculates their pay on a 40 hour basis and they receive their predetermined salary.  Occasionally, however, despite computer prompts that they have failed to enter 40 hours, some employees still forget to enter their "free" hours and get a paycheck less than their salary.  This money is made up to the employees.

A group of exempt employees sued Detroit Edison claiming that they were not exempt because they did not meet the salary test because, as referenced above, there were pay periods were they did not receive their predetermined salary.  On Friday in Acs, et al. v. Detroit Edison, the 6th Circuit affirmed the summary judgment dismissing this claim.   The court adopted the reasoning of a DOL opinion letter.  The court stated:

The Department then concluded that “[a]n employee’s time-entry error or omission or other clerical or mechanical error or omission that results in an initial payment by the Company to an employee of less than 1/26th of the employee’s annual salary in a biweekly pay period is not an unlawful ‘docking’ or deduction in the typical sense (e.g. such as a prohibited disciplinary deduction), does not call into question the Company’s intention to pay on a salary basis, and does not affect exempt status. Any shortage that results from the employee’s error or omission may be adjusted by completing an adjustment form (a process that is consistent with the window of correction contained in 29 C.F.R. § 541.118(a)(6)).

The court also reminded us that it is permissible to require exempt employees to track their hours and that an employer can pay an exempt employee additional compensation for hours worked over 40 without jeopardizing the exempt status.

6th Circuit extends rule regarding post-contract expiration dispute arbitrability

In Litton Financial Printing Division v. NLRB, (1991), the Supreme Court held that there is a presumption in favor of arbitration when a dispute arises under an expired collective bargaining agreement unless that presumption is 'negated expressly or by clear implication."  In South Central Power Co. v. IBEW, (1999), the 6th Circuit held that under Litton, a dispute "arises under the contract" not when "any" facts and circumstances relating to the dispute arose before the expiration of the collective bargaining agreement, but rather, 'when a majority of the material facts and occurrences arose before the expiration of the collective bargaining agreement."

Today in Zucker v. After Six, Inc. (Unpublished), the 6th Circuit extended the South Central rule to apply not just to disputes involving collective bargaining agreements, but also to disputes involving individual employment or independent contractor agreements.  In Zucker, the court affirmed the lower court's holding that the majority of material facts arose after the agreement in question expired, and therefore the dispute was not arbitrable.

6th Circuit Opinion Offers FMLA Guidance

Last week in Edgar v. JAC Products, Inc., the 6th Circuit issued an FMLA decision providing insight regarding how the court will view claims where an employee's medical information indicated he could not return to work following the end of his FMLA entitlement.  The following summary of the opinion is from Michael Fox's "Jottings By An Employer's Lawyer":

1. in entitlement cases, if an employee can not return to work at the end of 12 weeks, an employer is not liable regardless of whether the medical evidence revealing the employee’s inability to return to work is available before or after the termination decision;
2. in retaliation cases where the medical information is known prior to the termination decision, that would be a legitimate, nondiscriminatory reason for discharging the employee, and
3. in retaliation cases where the employer learns of the employee’s inability to return to work only after the termination decision, employer will not have a defense to liability, but might be able to limit the damages.

KY COA reverses dismissal of "post-termination retaliation" claim

On March 24, in Hardison v. Acordia of Kentucky, Inc. (unpublished), the KY COA reversed the Jefferson Circuit Court's dimissal of Hardison's discrimination and retaliation claims.  To me, the most interesting part of the case dealt with Hardison's allegation that Acordia's counterclaim against her, and its suit against her new employer, constituted unlawful retaliation for her pursuing her claim against Acordia.   After Hardison's employment with Acordia ended she went to work for another agency.  After Hardison filed suit in Jefferson Circuit Court alleging gender and age discrimination, and retaliatory discharge, Acordia filed a counterclaim alleging that Hardison had breached certain non-compete agreements.   In response Hardison denied the counterclaim and amended her Complaint to add a cause of action for "post-termination retaliation" premised on Acordia's counter-claim.  The Jefferson Circuit Court dismissed this cause as not supported by the evidence.  The COA reversed the dismissal.  Acordia argued that allowing a claim for retaliation to be premised on its counterclaim "would penalize any employer that does not 'win the race to the court house' against a former employee."  The COA rejected that argument, noting:

Regardless of whether the counterclaim was compulsory or permissive in nature, a jury would not be precluded from finding that it may have been asserted for an improper motive. There is evidence in the record from which a jury could indeed infer that the counterclaim and separate lawsuit against Hardison’s current employer might have resulted from a retaliatory intent. For many months prior to the filing of Hardison’s complaint, Acordia had been aware that its customers were transferring their business to Vandivier [the new employer]. Yet, it did not file a claim against Hardison until after she initiated her own lawsuit.

 

Gender discrimination class denied certification

Last week in Fugate et al. v. Lowe's Home Centers, Inc. (click here:Download Fugate33006.pdf), J. Bunning (E.D.Ky.) denied plaintiffs' motion to certify an alleged class of:

All current, former, and future1 females working at Lowe’s Store No. 554 in Florence, who were at any time, or are now, or will be during the course of the litigation, paid less than similarly situated male employees, or who have otherwise been treated less favorably with respect to compensation, promotions and/or other tangible employment practices, due to gender.

Relying on the recent 6th Circuit Reeb decision, Judge Bunning found the claims of the proposed class lacked commonality and typicality.   The following quote is a good summary of what, I believe, doomed plaintiffs' motion:

Additionally, Plaintiffs are seeking to represent a class of all female employees at Lowe’s, Florence, Kentucky store who may have suffered from any form of gender discrimination, well beyond the legal theories they bring on behalf of themselves. Plaintiffs’ proposed class includes all forms of gender discrimination, which would include discriminatory practices in hiring, placement, promotion, hostile work environment, and all other “terms and conditions of employment”, at all levels of employment. The legal questions raised by Plaintiffs and their broadly proposed class are not "common" for the purposes of maintaining a class action. Plaintiffs’ discrimination claims are not unlike the hundreds, if not thousands, of individual employment actions which are pursued everyday in courts throughout the country and do not become class actions simply because there may be other plaintiffs with similar claims or a common defendant.

No duty to create a permanent light duty position

Last week in Thomson v. Henderson (click here:Download Thomson33006.pdf), Postmaster General, J. Simpson granted the Postal Service summary judgment on Thomson's sex, race, age, and disability discrimination claims.  In so doing, J. Simpson reminded us that an employer generally does not have a duty to create a light duty job as an accommodation.  J. Simpson also stated, "The law does not require that [an employer] keep [employee] permanently in a temporary position, no matter the length of time which she has served in that position."

Employee not regarded as disabled

Marinelle Varela is a former employee of the Postal Service.  She sued claiming disability, race, gender discrimination and retaliation.  Last week Judge Simpson (W.D.Ky.) dismissed Varela's claims. (Click here: Download Varela33006.pdf).  The lengthy opinion addresses Varela's many allegations.  The opinion is well-reasoned, but breaks little new ground. Of the most interest to me was J. Simpson's reminder that, "[an employer's] willingness to provide [a] position[] conforming with [employee's] medical restrictions does not prove that it regarded her as being disabled...."

KY COA holds that punitive damages are not available in a workers' compensation retaliation claim

Yesterday in Griffin Industries v. Mullen (PUBLISHED), the KY COA held that punitive damages are not available for KRS 342.197 workers' compensation retaliation claims.  KRS 342.197 allows the recovery of "actual damages."  This is also what KRS 344.450 allows for sex, etc. discrimination claims.  Relying on Ky. Dept. of Corrections v. McCullough (Ky. 2003), which held that punitives are not available under KRS 344.450, the COA in Griffin easily found punitives are likewise not available under KRS 342.197.

The COA also provided a nice bit of guidance by clearly holding that the trial court did not err "by reducing the jury's award of damages by the amounts that [Mullen] received in state unemployment benefits."

KY COA reverses dismissal of sexual harassment claim

Yesterday in Wright v. Highland Cleaners, Inc. (unpublished), the KY COA reversed the Jefferson Circuit Court's order dismissing Wright's sexual harassment claim for failing to comply with a pretrial order requiring, "Each party seeking monetary damages of any nature at trial [to] file an itemization of damages 30 days before trial."  As compliance with this order, Wright submitted a report that stated,

"1. Compensatory Damages – including but  not limited to physical and mental pain and suffering, emotional distress, mental anguish, humiliation, embarrassment, loss of wages and other employment benefits, in an amount to be determined by a jury not to exceed: $1,000,000.

On the first day of trial, Highland moved the Court (J. Clayton) to dismiss the claim for failing to itemize damages in accordance with the pretrial order.  Citing Fratzke & LaFleur, the Court dismissed Wright's claims.  The COA reversed, finding Fratzke & LaFleur to be non-applicable because this case did not involve failure to respond to interrogatories.  The COA held the pretrial order was ambiguous and that Wright made a good faith attempt to comply.

NLRB GC Q&A

Here is a link to the NLRB General Counsel's annual "Responses to the Questions of the Practice and Procedure Committee (P&P Committee) of the Labor and Employment Relations Section of the American Bar Association."  I always find this to be an interesting read.