wwyd if you were the judge? case law update trivia game

WWYD If You Were the WWYD If You Were the Judge?Judge?

Case Law Update Trivia Game

Vance v. Ball State UniversityVance v. Ball State University570 U. S. ____ 2013, June 24, 2013570 U. S. ____ 2013, June 24, 2013

Facts: ◦Plaintiff Maetta Vance argued that Saundra Davis, a

catering specialist, had made Vance’s life at work contentious through physical acts and racial harassment.

◦Vance sued her employer for workplace harassment by a supervisor.

◦Vance asserted that Davis was a supervisor although Ball State claimed Davis was not actually Vance’s supervisor.

◦Davis had periodic authority to direct the work of other employees, but did not have authority to hire, fire, demote, promote, transfer, or discipline.

Question posed: For purposes of employer liability in employment discrimination case, who is a supervisor?◦A: A supervisor is someone who directs or oversees the

daily work of the harassed employee.◦B: A supervisor is someone who has the power to hire,

fire, promote, transfer or discipline the harassed employee.

◦C: Both A and B.


Answer: Ding, ding, ding--◦B: A supervisor is someone who has the power to hire,

fire, promote, transfer or discipline the harassed employee.

The U.S. Supreme Court held that an employee is a “supervisor” for purposes of vicarious liability under Title VII of the Civil Rights Act only if he/she is empowered by the employer to take tangible employment actions against the victim.


Lanier v. Univ. of Tex. Southwestern Med. Ctr.Lanier v. Univ. of Tex. Southwestern Med. Ctr., , 2013 U.S. App. LEXIS 11836 (5th Cir. Tex. June 12, 2013)2013 U.S. App. LEXIS 11836 (5th Cir. Tex. June 12, 2013)

Facts◦The employee found out her father was in the hospital. ◦She sent a text message to her supervisor stating she would

not be able to be on call that night because her father was in the emergency room.

◦The employee claimed that her text message was a request for FMLA leave to take care of her father who had suffered a heart attack.

◦The employee resigned and later filed interference and retaliation claims under the FMLA.

Question Posed: Whether the employee’s text message gave proper notice of her intention to take FMLA leave?◦A: The text message contained insufficient information

to notify the employer she was requesting FMLA leave◦B: The text message was sufficient to put the employer

on notice because it mentioned a sick family member◦C: The text message was insufficient, but triggered a

duty by the employer to inquire if that what the employee meant.


Answer: ◦A. The text message did not state enough information to

alert an employer that a leave request was made under the FMLA

◦An employer may have a duty to inquire further if statements made by the employee warrant it, but "the employer is not required to be clairvoyant.“

◦These statements did not warrant it because she had only asked to be let off for one day.


Univ. of Tex. Southwestern Med. Ctr v. Nassar 570 U. S. ____ (2013)570 U. S. ____ (2013)

Facts:◦Plaintiff Nassar was employed by UTSMC as a doctor. Plaintiff

is of Middle Eastern descent. ◦Nassar’s boss’s boss, Levine, stated on multiple occasions that

“middle easterners are lazy” and would scrutinize Nassar’s billing practices more closely than other doctors.

◦Nassar was unable to obtain a promotion due to active undermining by Levine.

◦Affiliated clinic offered Nassar a position, but the offer was rescinded after Nassar cited harassment in his resignation letter.

◦Nassar sued for constructive discharge and retaliation.

Question Posed: What burden of proof does a plaintiff have in a Title VII retaliation claim?◦A. Retaliation was one of the reasons for the adverse

employment action. Also known as mixed motive. ◦B. Retaliation was the only reason for the adverse

employment action. Also known as “but for” causation. ◦C. Either A or B will do.


Answer: Ding, ding, ding--◦B: For Retaliation claims under Title VII, a plaintiff must

show that retaliation was the only reason for the adverse employment action. “But for” causation (i.e., that an employer would not have taken the retaliatory employment action “but for” the plaintiff’s engaging in protected conduct).

◦This is a higher burden than mixed motive.


Facts◦ Four employees were grips—lighting and rigging technicians in the

filmmaking and video production industries—for Spring Break ‘86, a movie coming out soon.

◦ The employees were members of the International Alliance of Theatrical Stage Employees

◦ Toward the end of production, a number of union members, including these four employees, filed a grievance against Spring Break Louisiana alleging that they had not been paid wages for work they performed.

◦ The Union and Spring Break entered into a Settlement Agreement pertaining to the disputed hours allegedly worked by the employees, but the agreement was not signed by these four employees.

Martin v. Spring Break '83 Prods., LLC, Martin v. Spring Break '83 Prods., LLC, 688 F.3d 247 (5th Cir. 2012)688 F.3d 247 (5th Cir. 2012)


Question Posed: Did the Union’s Settlement Agreement with the movie bind these four employees and prohibit them from suing for their individual wage & hour claims?◦A: No. The Settlement Agreement is unenforceable because

they never signed it or agreed to it—instead, the Settlement Agreement was signed by Union representatives.

◦B: No. Individuals may not privately settle and release FLSA claims without court or DOL approval.

◦C: Yes. Individuals may privately settle FLSA claims without court or DOL approval when the dispute is not over substantive FLSA rights, but merely settlement of a disputed liability.

Answer: C: Yes. Individuals may privately settle FLSA claims without court or DOL approval when the dispute is not over substantive FLSA rights, but merely settlement of a disputed liability.-The Settlement Agreement was a way to resolve a bona fide dispute as to the number of hours worked—not the rate at which Appellants would be paid for those hours.-Settlements that give employees "everything to which they are entitled under the FLSA at the time the agreement is reached“ are enforceable without DOL or court approval there is “little danger of employees being disadvantaged by unequal bargaining power.”-The Supreme Court denied certiorari without comment, which for practical purposes, approves of the Fifth Circuit’s decision and reasoning.


EEOC v. Houston Funding II, Ltd., EEOC v. Houston Funding II, Ltd., 717 F.3d 425 (5th Cir. Tex. 2013)717 F.3d 425 (5th Cir. Tex. 2013)

Facts:◦The employee had regularly kept in touch while she was

absent on maternity. ◦When she called to say she had been released to return

to work, and again mentioned she was lactating and asked if she could use a back room to pump milk, there was a long pause after which she was told her job had been filled.

◦A later termination letter stated she was discharged due to job abandonment, effective 3 days before the phone call.


Question Posed: Is discharging a female employee because she is lactating or expressing breast milk constitutes sex discrimination in violation of Title VII? ◦ A: No. Discrimination because of pregnancy, childbirth, or a related

medical condition is illegal, but lactation is not pregnancy, childbirth, or a related medical condition.

◦ B. Yes. Lactation is a related medical condition of pregnancy for purposes of the Pregnancy Discrimination Act of Title VII.

◦ C. Yes, but the PDA does not mandate special accommodations to women because of pregnancy or related conditions, and therefore, the employer is not required to provide a special accommodation to the plaintiff to let her pump at work.


• Answer: B. Yes. Lactation is a related medical condition of pregnancy for purposes of the Pregnancy Discrimination Act of Title VII.

◦ The PDA provides that "[t]he terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions[.]“

◦ While, “The PDA does not define the statutory term "medical condition" ("pregnancy, childbirth, or related medical conditions"), “lactation is a related medical condition of pregnancy for purposes of the PDA” – OBVIOUSLY.

Bland v. Roberts, Bland v. Roberts, 2013 U.S. App. LEXIS 19268 (4th Cir. Va. Sept. 18, 2013)2013 U.S. App. LEXIS 19268 (4th Cir. Va. Sept. 18, 2013)

Facts: In November of 2009, B.J. Roberts, defendant, the sheriff

of Hampton, Virginia, ran for re-election. A group of workers in Roberts' office, among them the

plaintiff, weren't enthused about the prospects of their boss's continuation in his role. So they took to their Facebook accounts to protest the run: They “Liked” the campaign of Roberts's opponent, Jim Adams.

Despite the “likes”, Roberts won the election. Defendant then fired Bland and the other employees.


Question Posed: Whether the Plaintiff was terminated in violation of his 1st Amendment rights to freedom of speech?◦A: Yes. “Liking” something on facebook is the equivalent of

putting a campaign sign in your yard.◦B: No. “Liking” something on facebook is not an actual

statement, and insufficient speech to be protected by the 1st Amendment.

◦C: Maybe. It depends on whether the employee is “liking” a “viewpoint” or whether the employee is “liking” his friend’s most current status: “eating some food.”


• Answer: C. It depends... Just kidding. • A. Yes. “Liking” something on facebook is the

equivalent of putting a campaign sign in your yard. It is well established that an employee can speak

as a private citizen in his workplace, even if the content of the speech is related to the speaker's job.

Political speech is central to the meaning and purpose of the First Amendment.

Facts◦Feist, an attorney with Lousianna DOJ, requested an

accommodation which consisted of a request for free on-site parking due to osteoarthritis of the knee.

◦Feist claimed that her employer had failed to reasonably accommodate her disability because it refused to provide her with a free on-site parking space.

◦The district court granted summary judgment in the employer's favor because Feist failed to explain how the denial of on-site parking limited her ability to perform the essential functions of her job as a lawyer.

◦Feist could not explain how the request assisted her in the performance of her essential functions.

Feist v. State of Louisiana, Feist v. State of Louisiana, No. 12-31065 (5th Cir. Sept. 17, 2013)No. 12-31065 (5th Cir. Sept. 17, 2013)


Question Posed: What is the employer’s obligation in providing a reasonable accommodation? ◦A. An employer must do more and provide an

accommodation that allows an employee to enjoy all privileges and benefits of employment as enjoyed by similarly situated employees without a disability.

◦B. An employer is obligated to provide only an accommodation designed to help the employee perform the essential functions of the job.

◦C. Neither A or B. An employer should never provide an accommodation.

Answer: Ding, ding, ding--◦A. An employer must do more and provide an accommodation

that allows an employee to enjoy all privileges and benefits of employment as enjoyed by similarly situated employees without a disability.

◦The court held: Reasonable accommodations “need not relate to the performance of essential job functions.”

◦To support its view, the court focused on a regulation discussing accommodations that allow an employee with a disability “to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.”


City of Round Rock v. RodriguezCity of Round Rock v. Rodriguez399 S.W. 3d 130 (Tex. 2013)399 S.W. 3d 130 (Tex. 2013)

Facts◦Round Rock Fire Chief Larry Hodge denied a fire fighter’s,

Jaime Rodriguez, request for representation by the Round Rock Fire Fighters Association (the "Association") at an internal investigatory interview in which Rodriguez was being questioned concerning a complaint against him.

◦Rodriguez and the Association alleged that denying Rodriguez's request for Association representation and continuing with the interview violated Rodriguez's rights under section 101.001 of the labor code.


Question Posed: Whether the Texas Labor Code provides municipal employees represented by a labor organization with rights equivalent to so-called "Weingarten rights"--a private employee's right, upon request, to representation by a labor organization during an internal investigatory interview when the employee reasonably believes the interview may result in disciplinary action.◦ A: YES. The Texas Labor Code can be interpreted to confer a right

upon an employee covered by the National Labor Relations Act who reasonably fears discipline may result from an investigatory interview to union representation at that interview, upon his request.

◦ B. NO. The Texas Labor Code confers only one explicit right: the right to organize into a trade union or other organization. The Texas Labor Code does not encompass every right provided by the NLRA.


Answer: B. NO. The Texas Labor Code confers only one explicit right: the right to organize into a trade union or other organization. The Texas Labor Code does not encompass every right provided by the NLRA.-The Texas Supreme Court could not find a representation of a right in the Texas Labor Code without similar “concerted activities” language. -The Texas legislature did not enact legislature to confer the same rights as the NLRA on Texas public-sector employees during investigatory interviews.

Other Recent DevelopmentsOther Recent Developments

Question posed: Does an employer have a duty under Title VII or ADA/ADAAA to employees that are experiencing domestic violence, sexual assault, or stalking?◦A. Heck no! Those are not protected categories◦B. Yes.

Answer: Ding, ding, ding--◦According to the EEOC the answer is B. Yes because Title VII

prohibits disparate treatment based on sex, which may include treatment based on sex-based stereotypes. For example: An employer terminates an employee after learning she has been

subjected to domestic violence, saying he fears the potential "drama battered women bring to the workplace.“

Choosing not to hire a male applicant because he obtained a restraining order against his domestic partner.

Granting leave to male employee so he can testify in an assault trial, but denying leave to a female employee to prevent her from testifying in domestic violence case.

But that’s not it. The EEOC stated that the ADA prohibits different treatment or harassment at work based on an actual or perceived impairment, which could include impairments resulting from domestic or dating violence, sexual assault or stalking. For example:◦ An employer searches an applicant's name online and learns that

she was a complaining witness in a rape prosecution and received counseling for depression. The employer decides not to hire her based on a concern that she may require future time off for continuing symptoms or further treatment of depression.

◦ An employee has facial scarring from skin grafts, which were necessary after she was badly burned in an attack by a former domestic partner. When she returns to work after a lengthy hospitalization, co-workers subject her to frequent abusive comments about the skin graft scars, and her manager fails to take any action to stop the harassment.

And the winner is…..

wwyd if you were the judge? case law update trivia game

Documents

harassed employee

vances supervisor

employees text message

purposes of employer

ball state university

plaintiff maetta vance

leave request

saundra davis