Recently in Employment Law Category

In an action for employment discrimination based on plaintiff's disability, summary judgment for defendant is reversed where Section 504 of the Rehabilitation Act, 29 U.S.C. section 794, extends to a claim of discrimination brought by an independent contractor because the Rehabilitation Act covers all individuals "subject to discrimination under any program or activity receiving Federal financial assistance."

Read Fleming v. Yuma Reg. Med. Ctr., No. 07-16427

Appellate Information

Argued and Submitted February 12, 2009

Filed November 19, 2009

Judges

Opinion by Judge Bybee

Counsel

For Appellant:

Stanley Lubin, Lubin & Enoch, P.C., Phoenix, AZ

Stephanie M. Marnin, Outten & Golden, L.L.P., Stamford, CT, for the plaintiff-appellant.

For Appellees:

Sandra J. Creta, Quarles & Brady L.L.P., Phoenix, AZ

In an action claiming that the Federal Employees Pay Comparability Act infringed the right to travel because it penalized federal employees who worked in areas where the prevailing pay rates were lower, summary judgment for defendant is affirmed where: 1) as to employees in lower-paying areas, the act, if anything, imposed a penalty for staying put, not for traveling; and 2) not everything that deterred travel burdened the fundamental right to travel.

Read Matsuo v. US, No. 08-15553

Appellate Information

Argued and Submitted May 13, 2009

Filed November 12, 2009

Judges

Opinion by Judge Kozinski

Counsel

For Appellants:

Gregory K. McGillivary, Woodley & McGillivary, Washington, D.C., for the plaintiffs-appellants.

For Appellees:

Michael Raab, Gregory G. Katsas, Mark R. Freeman, Department of Justice, Washington, DC

In an action claiming that a state's practice of disapproving insurance policies with clauses vesting discretion in insurers violated the Employee Retirement Income Security Act (ERISA), summary judgment for defendant-state insurance commissioner is affirmed where: 1) the state's bar on discretionary clauses addresses an insurance-specific problem, because discretionary clauses generally do not exist outside of insurance plans; and 2) the commissioner's practice merely alters the terms by which the presence or absence of the insured contingency is determined; and 3) thus, the state regulatory scheme was saved from preemption under 29 U.S.C. section 1144(a) by the savings clause in section 1144(b).

Read Standard Ins. Co. v. Morrison, No. 08-35246

Appellate Information

Argued and Submitted June 3, 2009

Filed October 27, 2009

Judges

Opinion by Judge O'Scannlain

Counsel

For Appellant:

Meir Feder, Phineas E. Leahey, Shawn Hanson, Katherine Ritchey, Jones Day, LLP, New York, NY

For Appellee:

James G. Hunt, Hunt Law Firm, Helena, MT

In an action alleging a teacher's constructive termination arising out of plaintiff's complaints regarding the treatment of disabled students, dismissal of the complaint for lack of standing is reversed where the broad statutory language in section 504 of the Rehabilitation Act and its corresponding anti-retaliation provision in Title VI of the Civil Rights Act did not demonstrate that Congress intended to limit standing under section 504 to only those with disabilities.

Read Barker v. Riverside County Office of Educ., No. 07-56313

Appellate Information

Argued and Submitted December 12, 2008

Filed October 23, 2009

Judges

Opinion by Judge Pregerson

Counsel

For Appellant:

Janice S. Cleveland, Law Offices of Janice S. Cleveland, Riverside, CA

Gary S. Bennett, Law Offices of Gary S. Bennett, Laguna Hills, CA

For Appellee:

Jennifer D. Cantrell and Mark W. Thompson, Atkinson, Andelson, Loya, Ruud & Romo, Riverside, CA

In an action alleging that defendant's use of different base hourly rates violated the Fair Labor Standards Act (FLSA) by denying unionized employees overtime pay, summary judgment for defendant is affirmed where, when an employer changes its shift schedule to accommodate its employees' scheduling desires, the mere fact that pay rates changed, between the old and new scheduling schemes in an attempt to keep overall pay revenue-neutral, does not establish a violation of the FLSA's overtime pay requirements.

Read Parth v. Pomona Valley Hosp. Med. Ctr., No. 08-55022

Appellate Information

Argued and Submitted March 9, 2009

Filed October 22, 2009

Judges

Opinion by Judge Smith

Counsel

For Appellant:

Frank J. Coughlin, Santa Ana, CA

For Appellee:

Douglas R. Hart and Beth Anne Scheel, Los Angeles, CA

In a petition for review of the Benefits Review Board's determination that petitioner was not entitled to disability benefits under the Longshore and Harbor Worker's Compensation Act, the petition is denied where psychological injuries that result from legitimate personnel actions are not compensable under the Act.

Read Pedroza v. Benefits Rev. Bd., No. 05-75449

Appellate Information

Argued and Submitted October 23, 2008

Filed October 1, 2009

Judges

Opinion by Judge Collins

Counsel

For Petitioner:

Joshua T. Gillelan II, Longshore Claimaint's National Law Center, Washington, DC

For Respondent:

Roy D. Alexrod, Law Offices of Roy Alexrod, Solana Beach, CA

In an action claiming that defendant-employer violated the Americans with Disabilities Act (ADA) by terminating plaintiff based on her failure to pass a physical capacity evaluation, summary judgment for defendant is reversed where the district court erred in holding that the evaluation was not a medical examination within the meaning of 42 U.S.C. section 12112(d)(4)(A).

Read Indergard v. Georgia-Pacific Corp., No. 08-35278

Appellate Information

Argued and Submitted June 4, 2009

Filed September 28, 2009

Judges

Opinion by Judge Goodwin

Dissent by Judge O'Scannlain

Counsel

For Appellant:

Kerry M.L. Smith, Smith & Fjelstad, Gresham, OR

For Appellee:

Scott G. Seidman, Tonkon Torp LLP, Portland, OR

In a disability discrimination action under the Rehabilitation Act (the Act), summary judgment for defendants is affirmed where Oregon's Office of Public Defense Services was not a "program or activity receiving Federal financial assistance" within the meaning of section 504 of the Act during the period of alleged discrimination and thus the state did not waive its sovereign immunity with respect to that agency.

Read Sharer v. Oregon, No. 08-35396

Appellate Information

Argued and Submitted June 3, 2009

Filed September 21, 2009

Judges

Opinion by Judge Fisher

Counsel

For Appellants:

Stephen L. Brischetto, Portland, OR

For Appellees:

Leigh A. Salmon, Assistant Attorney General, Salem, OR

In an ERISA action challenging defendant-insurer's decision to terminate plaintiff's long-term disability benefits, summary judgment for defendant is reversed where a modicum of evidence in the record supporting the plan administrator's decision will not alone suffice in the face of the administrator's conflict of interest.

Read Montour v. Hartford Life & Accident Ins. Co., No. 08-55803

Appellate Information

Argued and Submitted February 10, 2009

Filed September 14, 2009

Judges

Opinion by Judge Clifton

Counsel

For Appellants:

Bradley P. Knypstra, Knypstra & Associates, Irvine, CA

For Appellee:

Bruce D. Celebrezze, Sedgwick, Detert, Moran & Arnold LLP, San Francisco, CA

Dennis G. Rolstad, Sedgwick, Detert, Moran & Arnold LLP, San Francisco, CA

In an action seeking payments under a disability insurance plan, the dismissal of the complaint on ERISA preemption grounds is reversed where 29 U.S.C. section 1132(a)(1)(B) did not completely preempt plaintiff's purely state-law action for breach of contract, negligent misrepresentation, quantum meruit and estoppel.

Read Marin Gen'l. Hosp. v. Modesto & Empire Traction Co., No. 07-16518

Appellate Information

Argued and Submitted January 16, 2009

Filed September 10, 2009

Judges

Opinion by Judge W. Fletcher

Counsel

For Appellant:

Viola Rita Brown, Stephenson Acquisto & Colman, Burbank, CA

Gregory C. Lehman, Stephenson Acquisto & Colman, Burbank, CA

For Appellees:

Bradley Alan Post, Borton Petrini LLP, Fresno, CA

Christopher H. White, Ross Dixon & Bell, Chicago, IL