Recently in Employment Law Category

Here's a friendly Thanksgiving reminder from the D.C. Circuit Court of Appeals and the National Labor Relations Board (NLRB): Disciplining an employee for being an outspoken union supporter is an unfair labor practice.

Manor Care of Easton, Pennsylvania clearly does not want its employees to unionize; the nursing home disciplined one of its employees, "outspoken union supporter" Trisha Miechur, after she started promoting unionization at work.

Remember the character and fitness report? We took that questionnaire pretty seriously. That's because our law school mandated attendance at a second-year lecture at which a state bar representative told us that he could find anything that we thought we could hide.

Over-disclosure, he said, was safer than under-disclosure. And oh, did we over-disclose!

Lawyers, of course, aren't the only professionals who have to disclose every nitty-gritty detail to the background check overlords, so today we're looking at a case involving pilot background checks.

Confession time.

We love David Bowie. Ziggy Stardust. Labyrinth. Iman. How could you not like Bowie?

Much like Samson found his strength in his hair, we believe that David Bowie finds his greatness in metallic jumpsuits. (Additional support for the jumpsuit theory? Freddie Mercury.) But we digress.

When we discovered this week that David Bowie was the appellant in a case before the D.C. Circuit Court of Appeals, there was squealing like a 12-year-old at a Justin Bieber concert. Then closer examination, it was found that it wasn't that David Bowie. The squealing ceased.

Melvin Jones suffers from a variety of health problems. He alleges that, by 2004, he was unable to perform the tasks required — including lifting and driving — for the jobs he previously held. Since he could no longer work, he applied for disability benefits under the Social Security Act.

In the course of his disability benefits evaluations, Jones saw three doctors. Two noted his extensive back and leg pain; one of those determined that Jones could not work. The third doctor, to whom Jones was referred by the Social Security Administration (SSA), said Jones had full abilities for work-related activities. SSA denied Jones’ request for disability benefits.

Summary Judgment Affirmed in Employment Action

In Vatel v. Alliance of Auto. Mfrs., No. 10-7013, an action claiming that defendant terminated plaintiff because of her race and gender, the court affirmed summary judgment for defendant where plaintiff produced insufficient evidence to undermine her supervisor's explanation that he dismissed plaintiff because they had incompatible styles of work and her performance therefore did not meet his expectations.

Action Claiming Discrimination by Federal Reserve Board

In Artis v. Bernanke, No. 09-5121, a putative class action by members of a putative class of secretaries employed by the Federal Reserve Board, claiming that the Board systematically discriminated against them on account of their race, the court vacated the dismissal of the complaint for failure to exhaust administrative remedies where plaintiffs completed informal counseling in a manner sufficient to give the Board an opportunity to investigate their claims.

Rehabilitation Act Discrimination Action

In Solomon v. Vilsack, No. 09-5319, an action alleging that the Secretary of Agriculture violated plaintiff's rights under the Rehabilitation Act by refusing to provide reasonable accommodations for her disability, the court vacated summary judgment for defendants where 1) claims for federal disability retirement benefits and disability-discrimination claims under the Rehabilitation Act did not so inherently conflict as to justify presumptively barring recipients of such benefits from asserting Rehabilitation Act claims, and 2) a reasonable jury could find that the statements plaintiff and her doctor made in support of her application for disability benefits were consistent with her current claim that she could have performed the essential functions of her position with reasonable accommodation.

ADEA Lawsuit

In Ford v. Mabus, No. 09-5041, an action by a federal government employee, alleging discrimination on the basis of age in violation of the Age Discrimination in Employment Act (ADEA), the court reversed judgment for defendant where, because of what the court had called ADEA section 633a's "sweeping" language --"all [federal government] personnel actions . . . shall be made free from any discrimination based on age"-- plaintiffs may establish liability, though not necessarily entitlement to such remedies as reinstatement and backpay, by showing that consideration of age was a factor in the challenged personnel action.

Petition for Review of Secretary of Labor Rules Granted in Part

In Int'l. Union, United Mine Wkrs. of Am. v. Mine Safety & Health Admin., No. 09-1014, a petition for review of the Secretary of Labor's rules on Refuge Alternatives for Underground Coal Mines, the court granted the petition in part where the miner training requirements at issue were arbitrary and capricious because the Mine Safety and Health Administration (MSHA) failed to explain the basis for them other than to state it relied upon its "knowledge and expertise."  However, the court denied the petition in part where the MSHA gave interested parties sufficient notice and opportunity for comment on the provision on minimum refuge volume per miner.

In Payne v. Salazar, No. 09-5291, an action alleging retaliation in violation of Title VII, the court affirmed in part the dismissal of the action for failure to exhaust administrative remedies, holding that the district court properly held that plaintiff failed to exhaust one of her claims.  However, the court reversed in part on the ground that an employee's right to trial de novo -- whether her employer is the federal government or a private company -- means that she is entitled to a plenary trial of whatever claims she brings to court, and it does not mean that she must sue on claims she has no interest in pursuing.