9th Circuit Holds Mischaracterizing Leave As Personal Not FMLA Leave Can Be FMLA Violation

Although the case is more complicated, as witnessed by the split decision, with one judge complaining the court should have gone further on the employee's behalf and another claiming it went too far, one holding that does seem clear is that the mere mischaracterization of leave as personal not FMLA, could in itself be a violation of the FMLA. Even if, as here, the plaintiff actually did not lose any rights since she was lawfully terminated while she was on leave. Liu v. Amway (9th Cir. 10/30/03) [pdf]. Just the unclear nature of the procedural issues in the case makes it unlikely that it will get higher review, but it certainly seems the holding that mischaracterization alone, where there was not an actual failure to give her any benefits required under the FMLA, is wrong.

What Cases Under Costa Could Look Like - Plaintiffs Winning the Battle, Losing the War

Although the Supreme Court's decision in Costa is not mentioned in Wheeler v. Missouri Dept. of Transportation (8th Cir. 10/31/03) it nevertheless represents a case where liability attached, but no damages were awarded since the jury was charged and found that the employer would not have given the plaintiff the promotion anyway. The facts were interesting in that plaintiff alleged he had not been given a promotion because of pressure on the Defendant to select a female for the position. Since liability was found, plaintiff was entitled to attorneys' fees. Significantly his attorney's request of just over $250,000 in fees was reduced to $21,250. In part, the Court held that the reduction was proper because one of the factors to be taken into account was the degree of success, and given that plaintiff did not ultimately prevail, he was only entitled to a limited recovery. It probably also didn't help that plaintiff's counsel took 37 depositions, many of which the court noted "were not warranted."

Failure To Give Pay Raise More Than 3 Years Before Charge Is Still Actionable Under Title VII, At Least in Part

A black employee was promised a 45 cents per hour raise after his first six months, but did not receive it. Unfortunately, he did not recognize the error until more than three years later. When he did, he found that not only did he not get it, but white employees did. He filed a charge with the EEOC claiming that he did not receive the raise because of his race. The EEOC, and later the trial judge, both found his claim time barred as filed more than 300 days after the 'discrete act' of failing to give him the promised raise.



After appointing the pro se plaintiff counsel for his appeal, the 7th Circuit considered the issue and found the claim timely, at least for the paychecks received within 300 days of filing the charge. (The Court notes that plaintiff had wisely abandoned claims to anything outside that time period.) After discussing some confusing precedents within the circuit, the Court found that in its most recent consideration of this issue, the Supreme Court had left what it called a:

... narrow channel for Title VII plaintiffs who wish to complain that their paychecks, in compensation for work they have presently performed and completed in pay periods within the limitations period, are discriminatorily low because of an earlier act that occurred outside the limitations period. Each paycheck is the kind of discrete act to which the Court referred in National Passenger Railroad Corp.; thus checks corresponding to pay periods before the 300 day time limit are time-barred, but those within it may form the basis of claim.

Reese v. Ice Cream Specialties, Inc. (7th Cir. 10/30/03) [pdf]. Interestingly, although the Reese court seemed to imply that this would be a rather rare circumstance, a different panel of the 7th Circuit was coming to a similar conclusion in a different case on the same day. Hildebrandt v. Illinois Dept. of Forestry (7th Cir. 10/30/03) [pdf].

When the Plaintiff Files Bankruptcy - Whose Claim and What Happens When It Is Not Disclosed

In the Northern District of Georgia, at least initially it depended on whether it was the bankruptcy court or the district court whose view prevailed. The facts were simple, an HR Director demoted from her position filed a lawsuit alleging discrimination. Months later when she filed Ch. 7 bankruptcy she did not disclose the lawsuit. When she signed the statement of affairs she did not mention the employment lawsuit, although a question asks for all legal proceedings. She did tell the Trustee at the creditor's meeting, but told him she was only seeking reinstatement, even though the complaint had been amended two days earlier to request compensatory and punitive damages. A discharge was granted in bankruptcy court, and for the first time the employer found out about it through the disclosure of documents in discovery.



Subsequent proceedings ensued with her requesting that the bankruptcy judge permit her to re-open the bankruptcy to now list the claim and the employer filing for summary judgment on the grounds that she was estopped from proceeding on the employment claim. The District Court granted the summary judgment. The bankruptcy court allowed the re-opening, but did not enter a written order until after the judge had granted the summary judgment against her. On appeal, the Court sorted it out by first finding that the claim was an asset of the Estate and that the Trustee was the real party in interest and should have been all along. It also found, after a lengthy analysis of the law that she was judicially estopped. Blaming it on her attorney did not work, although the court suggested a malpractice claim as her remedy, saying that it would not do to pass the burden of inappropriate conduct of her counsel to the defendant. Barger v. City of Cartersville, GA (11th Cir. 10/28/03) [pdf]. It was not a total victory for the employer however, as the Court held that she was not estopped from bringing a claim for injunctive relief, so her claim for reinstatement to her HR Director's position could proceed. No answer to the question what happens if the City now tries to settle the case monetarily.

The Fine Lines That Make The Difference In An FMLA Claim - 4th Cir. Says Employee On the Right Side

One of the pre-requisites of obtaining an FMLA leave is that the employee be employed for 12 months with the employer. The facts present a textbook case of fine distinctions making the difference. Kimberly Babcock started work for BellSouth on June 1. The following May 19th she took a leave of absence for a health condition. On May 22, she told her supervisor that her doctor was recommending that she be off for six weeks. On May 30th her doctor faxed that recommendation to Bell South. Thinking that her leave was approved for six weeks, she left town and did not return until June 9th. In her mail box were two letters from BellSouth informing her that leave was only authorized through May 27th, and that if she did not return to work on June 9th she would be terminated. Babcock called to discuss her situation and asked for more leave, either paid or unpaid. She was told that she was not eligible for leave since she had not worked for twelve months as required under the FMLA. When she did not return to work BellSouth true to their word terminated her, leaving the Rubik's cube to be sorted by the courts.



Both the district court which denied BellSouth's motion for summary judgment and its motion for judgment after the verdict in her favor of $91,000 and the appellate court saw things her way. True enough, she had not been eligible for FMLA leave when she initially left on May 19th. And the court agreed with the DOL regulations that eligibility must be determined at the time the leave begins. However, what was in question was her status between May 27th and June 9th. Although BellSouth argued she was on leave, its own records showed otherwise. She was only authorized for leave until May 27th. Thereafter the Court concluded she was an employee on unauthorized absence. With the key factor she was still an employee, now having past her first year anniversary. So when she again requested leave on June 9th, she was entitled to leave under the FMLA and her termination was in violation of that Act. Babcock v. BellSouth(4th Cir. 10/28/03) [pdf]. What a law exam question!

Employment Defamation Case Kicked Out - But No Mention of the Privilege Statute

Austin v. Inet Technologies (Tex. App. - Dallas 10/23/03) has all the aspects of defamation cases that can arise in the workplace. The plaintiff was discharged following a dispute with her supervisor which he allegedly misreported to HR and on up the chain. (He said that she yelled at him in front of fellow employees and clients; she disagreed that she "yelled".) She claimed the internal comments were defamatory, that she was defamed during a reference check, and that she was forced to pass on the defamatory comment, relying on the theory of compelled self publication.



Although the Court upheld summary judgment, finding that the employer had established the comments were privileged, there was no malice, that the reference was substantively true, and that she could not prove the first element of self-publication since she knew it was defamatory. Interestingly, what was not mentioned in all of the various successful defenses was the 1999 legislation designed to protect employers when giving references, now codified at Section 103 of the Texas Labor Code.

Employment Lawyers Aren't Always What One Would Think

Not that anyone with much of a life would be giving much thought to employment lawyers, but if you did, you might be surprised. Or at least that's the premise of an article in today's Grand Rapids Press the opposing counsel in a current gender discrimination trial involving the Grand Rapids Police department. One is a former staffer in President Reagan's White House in the 1980s and the other is a blues music aficionado and long-time advocate of bringing greater racial and gender diversity to the legal community. If it weren't so obvious that this is a set up, you might be surprised as to their respective clients.