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Employment Law Final Exam

By Ernest Moore,2014-08-11 10:04
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Employment Law Final Exam ...

    Employment Law Final Exam

    Fall, 2007

    Sample Answer Outline

    Fact Pattern #1:

Jordan’s claims against Acme:

Wrongful discharge

    ; Default rule is at-will employment.

    ; Parties have an express written agreement for just cause discharge, thereby opting

    out of the default.

    ; CBA also contains a three-step disciplinary procedure.

    So we have to address both (1) just cause discharge, and (2) the multiple-step disciplinary

    procedure.

Was Jordan discharged without just cause?

    ; Acme argues: She threatened to kill a co-worker. Twice. That constitutes

    endangering another employee, which is grounds for termination under the CBA.

    o Jordan responds: She didn’t take any action, and it wasn’t a serious threat.

    ; Acme replies: It has a right to take threats seriously.

    o Jordan also responds: She wasn’t on duty at the time.

    ; Acme replies: That doesn’t matter, when her conduct directly

    affects the workplace. Threatening a co-worker constitutes “work-

    related behavior,” even if she was off duty when she did it.

    o Jordan also responds: The only “threat” was a knee-jerk comment she

    made immediately after Knapp dumped her. She didn’t threaten him in

    the voicemail message.

    ; Acme replies: One threat is sufficient.

    ; Acme also replies: Acme reasonably believed that Jordan

    threatened Knapp in the voicemail message. Acme didn’t have to

    be correct, just reasonable.

    ; Acme also argues: Threatening a co-worker also constitutes “behavior . . . which

    in the Eer’s judgment meets accepted just cause termination tests.”

    o Jordan responds: This part of the CBA is so fudgy that it effectively

    nullifies the just-cause provision if you take it seriously. The language

    should be blue-penciled from the CBA.

    ; Acme replies: This argument might prevail in a close case, but

    Jordan’s conduct was so far over the line that she can’t claim lack

    of notice.

    Bottom line: Acme will be able to show just cause to discharge Jordan.

Did Acme violate the three-step disciplinary procedure?

    1; Jordan argues: Factually, Acme didn’t give Jordan any warnings at all. Nor is

    there anything in the fact pattern to indicate that Acme conducted an investigation.

    o Acme responds: The CBA expressly states that it may be appropriate in

    certain situations to depart from the three-step procedure.

    ; Jordan replies: If you take that language seriously, it effectively

    nullifies the just-cause provision. The language should be blue-

    penciled from the CBA.

    ; Acme counters: This argument might prevail in a close

    case, but threatening to kill a co-worker is a clear case for

    immediate dismissal.

    Bottom line: A court is unlikely to require Acme to adhere to a multiple-step disciplinary procedure on these facts.

    Bottom line: Acme will prevail on the wrongful termination claim.

    Sex discrimination (disparate treatment / tangible employment action) Jordan can make out a prima facie case of sex discrimination

    ; Member of a protected class = female

    ; Meeting employer’s reasonable expectations = the only “misconduct” she is

    accused of was having a fight with her ex-boyfriend, and that’s not work-related

    behavior

    ; Adverse employment action = fired

    ; Evidence of causal nexus =

    o The male employee who (a) had an on-the-job extramarital affair, and (b)

    also had a fight with the ex-paramour, was not disciplined.

    o Troutner had previously chastised Jordan for having an affair, but had not

    chastised Knapp.

    o Troutner mentioned the affair twice in the period immediately before

    Jordan’s discharge, thereby creating an inference that the affair was the

    true reason for the discharge.

    Acme can proffer an LNR for the discharge =

    ; threatening to kill a co-worker (see discussion above). Jordan and Knapp (who

    was not discharged) were not similarly situated, because Knapp never threatened

    to kill anyone.

    Jordan will have a difficult time showing that Acme’s stated LNR is pretext.

    ; She’ll use Troutner’s statements criticizing her affair with Knapp, but that will

    probably be insufficient, where the evidence indicates that Acme reasonably

    believed Jordan had threatened Knapp twice.

    Bottom line: Acme will prevail on the sex discrimination claim.

     1 A few students suggested that Troutner’s July 2007 statement to Jordan about her affair with Knapp

    constituted a warning. That is not correct. At that time, Jordan had not committed any actions that could have subjected her to discipline.

Possible claims arising out of Troutner’s conduct in having Jordan arrested – False

    Imprisonment / False Arrest / Intentional Infliction of Emotional Distress

    ; It is unlikely that Jordan could successfully bring any claims arising out of her

    arrest. Since there was probable cause for the arrest, Troutner’s conduct will be

    privileged.

Defamation

    Jordan claims: Troutner defamed her when he told Eagle’s HR director that she was a Fatal Attraction lunatic. The statement meets the basic elements of defamation.

    ; Acme responds: Truth is a defense.

    o Jordan replies: She is neither a lunatic nor did she go Fatal Attraction.

    ; Acme counters: The statement constituted, and would have been

    understood as, ordinary exaggeration.

    ; Acme also responds: The statement was subject to a qualified privilege

    (statements in the interest of the hearer). As long as there was no willful falsity, it

    is not actionable.

    Bottom line: Acme’s affirmative defense of truth is far from being a slam dunk, but the statement is probably not far enough off-base to lose the qualified privilege. Acme will prevail on the defamation claim.

Invasion of Privacy

    Jordan claims: Knapp invaded Jordan’s privacy when he told Troutner that Jordan had

    threatened him.

    ; Acme responds: A death threat is not a private fact.

    Jordan claims: Troutner invaded Jordan’s privacy when he told Eagle’s HR director that Jordan had threatened Knapp.

    ; Acme might respond: Factually, there’s no evidence this happened. We only

    know that Troutner said Jordan was a Fatal Attraction lunatic. But, assuming that

    Troutner gave details, . . .

    ; Acme responds: A death threat is not a private fact.

    ; Acme also responds: Even if this were a private fact, it is protected by a qualified

    privilege (statements in the interest of the hearer). As long as there was no

    excessive publication, it is not actionable. In this case, Troutner told only the HR

    director, and he had a valid interest in knowing.

    Bottom line: Acme will prevail on the invasion of privacy claim.

Unemployment Compensation

    ; The fact pattern does not mention whether Jordan applied for unemployment

    benefits, but Acme should probably consider whether to challenge her application,

    if she makes one. As discussed above, Acme has a good argument that Jordan

    was terminated for misconduct.

    Bottom line: Acme will prevail if it challenges Jordan’s unemployment benefits application.

Negligent Failure to Protect Jordan’s Property from Knapp’s Wife

    ; There is no such thing as “negligence in the air.” Since Jordan’s vehicle was not

    actually damaged, she has no claim for Acme’s failure to protect it.

In the real case upon which the fact pattern is based, the employee lost on summary thjudgment. The court of appeals affirmed, 3-0. Shaffer v. Potter, 499 F.3d 900 (8 Cir.

    2007).

Knapp’s claims against Acme:

Sex discrimination (hostile environment)

    Knapp claims: A co-worker (Jordan) tried to induce him to go on a romantic vacation with her, and threatened him when he refused to go. Although Jordan’s conduct was not pervasive, it was severe enough to be actionable even if there were only a few incidents.

    ; Acme responds: Knapp engaged in a voluntary relationship with Jordan. The

    conduct was not unwelcome.

    o Knapp replies: After July 2007, the conduct was definitely unwelcome.

    ; Acme also responds: In cases of co-worker harassment, an employer can raise an

    affirmative defense that it responded appropriately to the employee’s harassment

    complaint. When Acme learned that Knapp was being subjected to unwelcome

    advances, it took action immediately. There were no incidents after the initial

    threat, and Jordan was terminated within weeks.

    Bottom line: Jordan’s conduct was probably severe enough to be actionable, but since Acme responded quickly and effectively, Acme will prevail on the hostile environment claim.

Worker’s compensation

    Knapp claims: He was assaulted while he was at work; the injuries both occurred in the course of his employment and arose out of his employment.

    ; Acme responds: Injures that are purely personal do not “arise out of”

    employment. This is an assault by an angry ex-girlfriend.

    o Knapp replies: There is but-for causation here. He would not have been

    assaulted, but for the fact that he was making a delivery at Jordan’s

    workplace.

    ; Acme counters: The “but-for” causation test, arising out of the

    positional risk doctrine, is used only when the employee is injured

    by a “mixed” or “neutral” risk, not a risk that is personal to the

    employee. Where the risk is personal, the injury is not a workers’

    compensation injury.

    ; Knapp responds: Even in the case of purely personal

    assault risks, the employer can be held liable if it does

    something to increase the risk the employee will be

    assaulted, such as by giving the assailant access to the

    victim. If Knapp had not been making a delivery at FF,

    Jordan would not have had access to him.

    o Acme replies: This isn’t the sort of increased risk

    that doctrine is aimed at, like allowing an assailant

    to enter a secure area. Furthermore, Acme had no

    notice Jordan would be there.

    ; Knapp counters: W/C is a strict liability

    system, so notice is not relevant. Nor does it

    matter that this assault isn’t a “core” access-

    to-victims fact pattern. W/C statutes are

    construed in favor of coverage.

    Bottom line: Uncertain, but it’d probably be more expensive to litigate the dispute than

    the dispute is worth.

    Fact Pattern #2:

First Amendment claim against the School Board:

    Putnam is a public employee, so he retains some First Amendment rights for his speech as a private citizen on matters of public concern.

Speech on a matter of public concern?

    ; Was there protected speech at all?

    o The Board will argue:

    ; Putnam didn’t actually speak at the church.

    ; Putnam will respond: Since the Board treated Putnam as

    though he had spoken at the church, he should get the same

    First Amendment protection he would have gotten if he had

    actually spoken.

    ; Putnam didn’t know it was a gay church at the time he agreed to

    speak there.

    ; Putnam will respond: Since the Board treated Putnam as

    though he knew it was a gay church, he should get the same

    First Amendment protection he would have gotten if he had

    actually known.

    ; [Substantive law note: There is a Circuit split on whether First

    Amendment protection attaches to speech that didn’t happen,

    where the employer treats the speech as though it did happen.]

    o Putnam will argue:

    ; He did write a letter to the newspaper.

    ; The Board will respond: Putnam cannot show a nexus

    between the letter to the newspaper and the Board’s refusal

    to renew his contract. (Note also that the letter isn’t exactly

    a ringing endorsement of gay rights.)

    ; Was it on a matter of public concern?

    o Yes. Slam dunk for Putnam.

    Bottom line: Uncertain. Since Putnam didn’t actually speak at the church, the employer has a colorable argument that there was no protected speech at all. On the other hand, the Board treated Putnam as though he had spoken at the church. We should continue with the analysis.

Balancing of interests:

    ; School’s interests: Maintain good relationships with faculty; maintain good

    relationships with parents (some of whom are going ballistic is anti-gay animus

    the type of interest we want to recognize and protect?); teach students.

    ; Putnam’s interests: Very few, if we limit ourselves to these facts. He didn’t even

    know it was a gay church. But in light of the high value we place on First

    Amendment values, should we analyze this factor as though Putnam felt strongly

    about the issue, regardless of the actual facts? We have a colorable argument.

Substantial motivating factor in his discharge?

    ; Was there a discharge at all? Putnam’s contract had ended.

    o Yes. The failure to renew his contract is an adverse employment decision,

    and it gets treated the same way.

    ; Substantial motivating factor? We know there are 6 people on the Board.

    o A & B have traditionally supported Putnam, and voted for him.

    o C & D have traditionally supported Putnam, so we can infer they would

    have voted for him, but they switched their votes. C & D are both on

    record as saying they wouldn’t vote for a man who went to a gay church.

    o E & F have traditionally opposed Putnam, so they would have voted

    against him anyway.

    ; It appears that in the absence of the gay church flap, Putnam would have been

    reappointed by a 4-2 vote. Because C & D switched their votes, Putnam was

    rejected by a 4-2 vote.

    ; So Putnam can show causation.

Bottom line: Uncertain.

    ; Since Putnam didn’t actually speak at the church, the Board can argue that he

    didn’t engage in protected conduct. On the other hand, the Board treated Putnam

    as though he engaged in protected conduct, and Putnam did write the letter to the

    newspaper.

    ; Both sides have interests that need to be balanced. This looks like a jury question.

    ; Putnam will probably be able to show causation.

    In the real case upon which the First Amendment portion of the fact pattern is based, the employee lost on summary judgment, on the ground that no First Amendment claim could lie where the employee did not actually speak at the church. The court of appeals, acknowledging a jurisdictional split, reversed, 3-0, and remanded for a trial on the merits. thScarbrough v. Morgan County Bd. of Educ., 470 F.3d 250 (6 Cir. 2006). As of January

    15, 2008, the case was still pending. A scheduling order entered on 4/4/07 in Case No. 3:01 CV 198 (E.D. Tenn.) indicates that trial is set for 5/13/08.

Age Discrimination claim against the high school:

    ; As a preliminary matter, the fact pattern doesn’t tell us how many employees the

    high school has, but if it’s big enough to have 3 baseball teams and 2 softball

    teams, it’s big enough to have more than 20 employees. So we can assume that

    the ADEA applies.

    Putnam can probably make out a prima facie ADEA claim against the high school.

    ; Member of the protected class = 43 is more than 40.

    ; Applied and was qualified = yes, since it’s his old job.

    ; Adverse employment decision = failure to hire.

    o But does refusal to bump an incumbent employee out of her current

    position count as an adverse employment decision?

    ; Circumstances creating an inference of discrimination = 28 year old employee (15

    years younger) received favorable treatment.

Burden shifts to the School to demonstrate a RFOA.

    ; School claims the RFOA is sex.

    o This is a “factor other than age,” but is it “reasonable”?

    o Even if it’s an illegal reason, we don’t want to turn a sex discrimination

    claim into an age discrimination claim as well. We will assume for now

    that sex can be a RFOA, and continue the analysis in a discussion of sex

    discrimination under Title VII.

    ; School also probably has an available argument: “Simonson is the incumbent.”

    ; School also probably has an available argument: “Simonson is cheaper.”

    o This correlates with age, but under Hazen Paper, that’s okay.

Burden then returns to Putnam to show pretext.

    ; As discussed below, in the sex discrimination section, the School may have a

    difficult time showing that sex is a RFOA.

    ; As to the “Simonson is the incumbent” and “Simonson is cheaper” arguments,

    the fact that the School is bending over backwards to give Simonson F/T status

    even though she works only 25 hours a week, while it refuses to give Putnam a

    FT position, indicates a serious disparity in treatment. Simonson isn’t really the

    incumbent F/T employee if she’s only working 25 hours a week. And she isn’t

    cheaper if she’s being paid for hours she’s not working. The gross disparity in the

    way the employer treats these two similarly situated employees indicates that

    something fishy may be going on.

    Bottom line: Uncertain, but it looks like we can get Putnam past SJ.

Title VII Sex Discrimination claim against the high school:

    Putnam can make out a prima facie Title VII claim against the high school, using both direct and indirect evidence.

    Direct evidence = High school principal stated that Simonson was being retained because she was female.

    Indirect evidence =

    ; Member of the protected class = male.

    ; Applied and was qualified = yes, since it’s his old job.

    ; Adverse employment decision = failure to hire.

    o But does refusal to bump an incumbent employee out of her current

    position count as an adverse employment decision?

    ; Circumstances creating an inference of discrimination = female employee with

    seriously inferior credentials received favorable treatment.

    Because Putnam has presented direct evidence of sex discrimination, both the burden of production and persuasion shift to the School to demonstrate a LNR.

    ; If sex is a BFOQ, that is a LNR

    o The School will argue that sex is a BFOQ to coach girls’ sports. Part of

    what the coach does is to be a role model.

    ; Putnam will respond that sex is not a BFOQ, because the coach’s

    job is to coach, and he can do all necessary job tasks. Furthermore,

    he actually worked as the girls’ softball coach at this school until

    five years ago.

    o The School also probably has an argument available that the coach has to

    be able to enter the locker room, and part of the coaching duties at a high

    school involve contact with students that could be seen as inappropriate if

    the teacher is of the opposite sex from the student.

    ; Putnam will respond that he never had any problems when he

    coached this team previously.

    ; If the School has an affirmative action plan, that is a LNR.

    o The fact pattern contains no evidence that the School has an actual

    affirmative action “plan.”

    Bottom line: Uncertain, but it looks like we can get Putnam past SJ.

Equal Pay Act claim against the School:

    ; Putnam is being paid less to coach the boys’ team than Simonson is being paid to

    coach the girls’ team.

    o (Maybe. We know from the fact pattern that Simonson earns

    $2000/month, but we don’t know how much Putnam earns. It’s unlikely,

    however, that a half-time high-school baseball coach is earning more than

    $2000/month.)

    ; In order to make out a prima facie case, Putnam must show that duties and

    working conditions are similar for the two coaches. Since the working hours are

    nominally different, and Simonson has extra duties as an equipment manager,

    Putnam cannot meet this requirement.

    o Putnam = 50% time coaching

    o Simonson = 33% time coaching; 66% time equipment manager.

    ; Putnam may try to argue that Simonson should be treated as a half-time employee

    for purposes of analyzing his Equal Pay Act claim, but this will be an uphill battle.

    She’s nominally a F/T employee, and it’s undisputed that she works at least 25

    hours/week (62.5% of 40 hours) and has equipment managing duties that Putnam

    doesn’t have.

Bottom line: The School will probably prevail on Putnam’s Equal Pay Act claim.

    In the real case upon which the discrimination portion of the fact pattern is based, a jury awarded the employee actual damages of $225,000 and punitive damages totaling $1,050,000. The court of appeals affirmed, 3-0. Brady v. Curators of the University of

    Missouri, 213 S.W. 3d 101 (Mo. Ct. App. 2006). The large punitive damages award in the actual case is explained by the fact that the real defendant employer did several nasty things that weren’t included on the examination.

    Claims that don’t exist on these facts:

    ; Breach of contract claim against the Board. His contract had expired. ; Freedom of religion claim against the Board. We have no evidence about

    Putnam’s religious beliefs.

    ; Sexual orientation discrimination claim against the Board. Even if such claims

    existed under federal law and they don’t – there is no indication that Putnam is

    gay, effeminate, or fails in any other way to satisfy all stereotypes of male

    behavior.

    ; ERISA claim against the School. The School might be classifying Putnam as a

    P/T employee so that he won’t be eligible for benefits, but that doesn’t violate

    ERISA.

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