Recently in Employment Law Category

If you’re planning to kick off the New Year by filing a disability discrimination claim in a Second Circuit Court of Appeals feeder court, make sure your claim isn’t time-barred.

Last month, the Second Circuit clarified the receipt requirements of the 90-day filing limitation for equal employment claims in Tiberio v. Allergy Asthma Immunology of Rochester.

We have sports on the brain as we prepare for the most important football game of the year this weekend, so we're taking a break from our usual coverage of attorney sanctions and standing to check on the progress of the 2011 NBA Lockout.

How, you might wonder, is the players' lockout related to the Second Circuit Court of Appeals?

We're glad you asked.

We admit up front that one reason we are writing about this Second Circuit Court of Appeals case is that it includes a fleeting reference to a character named Captain Courage(!).

Elizabeth Mechler was a special enforcement officer for the Kansas Department of Corrections ("DOC") from 1993-2004. Her work required Mechler to carry a firearm. In March 2004, Mechler began a three year contract with Dyncorp, which operates overseas prisons for the United States government. Mechler was assigned to Kosovo, where, on her first day on the job, she and five other Dyncorp employees were shot by a Jordanian soldier working for the United Nations. Three of the victims died.

Warning: Second Circuit attorneys, you may have a David Bowie problem.

Sadly, we’re not talking about a problem stemming from your David Bowie obsession - as if that could be characterized as a problem - but from the D.C. Circuit Court of Appeals holding in David Bowie v. Maddox that criticizes a Second Circuit Court of Appeals holding in Jackler v. Byrne.

David M. Bowie, a former official of the District of Columbia Office of the Inspector General (OIG), claimed he was fired in retaliation for exercising his First Amendment rights. Bowie refused to sign an affidavit his employer drafted for him in response to a former subordinate’s employment discrimination claim; instead, Bowie re-wrote the affidavit in a manner critical of OIG’s decision to fire the subordinate in question.

Action Alleging Termination of Government Employee Based on Speech

In Anemone v. Metro. Trans. Auth., No. 08-2646, action alleging that defendants took a series of adverse employment actions against plaintiff in response to plaintiff's protected speech concerning corruption at the Metropolitan Transit Authority, the court affirmed summary judgment for defendants where 1) any reasonable jury would have to find that plaintiff would have been suspended and then terminated even absent any retaliatory intent on defendants' part engendered by his allegedly protected speech, such that defendants were entitled, under Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977), to a defense to all plaintiff's First Amendment claims; and 2) the district court correctly rejected the procedural due process claims.

Action Alleging Retaliatory Termination

In Thomas v. iStar Fin., Inc., No. 07-5327, an action claiming that plaintiff's termination was in retaliation for complaints he had made about his supervisor's alleged misconduct, the court affirmed partial judgment for plaintiff where 1) plaintiff had no mechanism by which to challenge the district court's constitutional analysis related to punitive damages; 2) no reasonable jury could have found the "occasional and isolated" events plaintiff complained of were severe or pervasive enough to create an abusive work environment; and 3) defendants could not point to anywhere in the record where they objected to the district court submitting the issue of back-pay damages to the jury.

Action Based on Alleged Termination Because Plaintiff Was Muslim

In Sayed v. Hilton Hotels Corp., No. 10-453, an action claiming that defendant terminated plaintiff's employment because plaintiff was Muslim, the court affirmed summary judgment for defendant where plaintiff produced no evidence other than temporal proximity in support of his charge that the proffered reason for his discharge was pretextual.

Title VII Discrimination Action

In Estate of Paulette Hamilton v. City of N.Y., No. 09-4318, a Title VII employment discrimination action, the court affirmed summary judgment for defendant in part where 1) plaintiff could not introduce evidence of subsequent remedial measures taken by defendant in order to establish defendant's underlying liability; 2) the decision to consider EEOC findings was left to the "sound discretion" of the district court; and 3) plaintiffs pointed to no evidence indicating that the relevant performance evaluations were biased or manifestly inaccurate.  However, the court vacated in part where plaintiffs deserved an opportunity to present their Labor Law claim to the district court as it inevitably considered whether it would be appropriate to construe defendants' motion for summary judgment as a motion to amend their answer.

No Private Right of Action Under 42 U.S.C. section 300a-7(c)

In Cenzon-DeCarlo v. Mt. Sinai Hosp., No. 10-0556, an action claiming that plaintiff nurse was compelled by her supervisors to participate in a late-term abortion, suffering serious emotional harm as a result, the court affirmed summary judgment for defendant where there was no evidence that Congress intended to create a right of action under 42 U.S.C. section 300a-7(c).

FLSA Overtime Action

In Myers v. Hertz Corp., No. 08-1037, an action asserting claims against Hertz Rental Car for overtime violations of the Fair Labor Standards Act, and various provisions of New York state law, the court affirmed the denial of class certification where the district court did not abuse its discretion in concluding that Hertz's common policy demonstrated little regarding whether the constituent issues that bore on Hertz's ultimate liability were provable in common.