Employment Law News - U.S. Tenth Circuit
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In October 2013, the Tenth Circuit determined that Abercrombie & Fitch, the nation's No. 1 purveyor of that weird cologne smell in the mall, didn't violate Title VII of the Civil Rights Act when it refused to hire a Muslim job applicant for wearing a hijab in contravention of Abercrombie's dress code.

The EEOC has since been granted a cert. petition, and filed its opening brief earlier this month. The case has garnered a whole heck of a lot of amici including religious organizations, the Lambda Legal foundation, and the State of Arizona, for some reason.

When the U.S. Supreme Court invalidated President Obama's NLRB "recess" appointments in NLRB v. Noel Canning, the question arose: what happens to all the decisions these now-unlawfully-appointed NLRB members made?

That's the first issue the Tenth Circuit had to grapple with in Teamsters Local Union No. 455 v. NLRB (Harborlite). When the union and management at Harborlite couldn't agree on a new contract, the union members wanted to keep working. The law lets them, but is also allows the employer to conduct a "lock out" and hire temporary replacements until an agreement is reached. Harborlite did more than that, though: it threatened to hire permanent replacements if the union didn't agree with management. The NLRB found this was not OK, but in light of Noel Canning, does that determination mean anything?

Oh, the good ol' Tenth Circuit. For a circuit that covers a geographically large portion of the United States, the case law coming out of there can sometimes not be as compelling as circuits with cities like New York or San Francisco. But, that doesn't mean all Tenth Circuit cases are folly. In fact, when they mean business, they get the whole country's attention.

Tenth Circuit in the News

With Utah's large Mormon population, we suppose it was just a matter of time before a polygamy case was heard. And just in time for the end of 2013, Judge Waddoups of the U.S. District Court for the District of Utah struck down Utah's bigamy statutes' cohabitation provision as unconstitutional.

Ever get mad at your boss? Ever think it was a good idea to log onto Facebook during working hours and complain about said boss? Yeah, us neither.

Sara Debord let loose on Facebook about her boss adding money to her paycheck, and saying that he needed "to keep his creapy [sic] hands to himself." Many of her coworkers, and supervisor, saw the post and disruption ensued.

Abercrombie & Fitch, and it's company Hollister, have been involved in litigation around the country concerning its discriminating hiring and employment practices in the name of staying true to its "look policy," with women who wear the hijab bearing the brunt of the burden.

In October of this year, the Tenth Circuit adopted a stricter view of Title VII's notice requirements for religion-accommodation theory, holding that a claimant "must establish that they initially informed the employer that they engage in a particular practice for religious reasons and that they need an accommodation for the practice."

Last week the Tenth Circuit, reaffirmed the deference it accords arbitration agreements. Taking down plaintiff's three arguments one by one, the court upheld the arbitrator's award in favor of defendants.

Background

The Air Methods Corporation ("AMC") is an air transportation company that provides transport of medical personnel to accident sites, and of injured people to hospitals. As an air transport company, AMC is subject to FAA requirements, and its operating manual must be approved by the FAA.

No Title VII Violation in Termination of Employee, 10th Cir. Says

The Tenth Circuit has upheld a district court's grant of summary judgment in favor of the New Mexico Environment Department's Farmington office, finding no violation under Title VII.

Michael Lobato was a probationary employee at NMED as an inspector of food service providers, liquid waste systems, and public swimming pools. NMED served Lobato with a notice of dismissal listing several grounds for his termination, including the fact that Lobato was dishonest in his employment application and about staying at a hotel in order to receive a per diem reimbursement. They also mentioned his rude and unprofessional attitude.

Lobato, in turn, contends that his firing was in violation of several acts, including Title VII of the Civil Rights Act.

Earlier this week, the Tenth Circuit stuck its head in the sand, and proceeded to draw a thick, long line with it. It took 76 pages to explain why the court was reversing the district court's decision granting the Equal Employment Opportunity Commission's ("EEOC") motion for summary judgment against Abercrombie & Fitch.

To quote Shakespeare: "The lady doth protest too much, methinks."

Non-Retaliatory Reasons Make Firing OK: 10th Circuit

Plaintiff Jerry Keeler was employed by ARAMARK, a food service provider. While employed there, he felt that they did not appreciate him as an employee, because of the fact that he was never made employee of the month, nor was he allowed to work overtime hours.

So, Keeler decided to make this matter a personal one. He sent a slew of threatening letters to upper management -- one letter claimed that it would be the "final warning," while another ensured a riot if Keeler were to die from a diabetic attack caused by stress. On top of this, Keeler also filed charges with the EEOC and the Kansas Human Rights Commission.

Lockheed Martin Did Not Protect Its Whistleblower, Says 10th Cir.

When Lockheed Martin Corp. sought to set aside a decision that essentially determined that they violated the Sarbanes-Oxley Act (the Act), the Tenth Circuit ruled against them, affirming the decision of an administrative law judge (the ALJ).

Andrea Brown was a former Lockheed Martin employee who lodged an ethics complaint against Wendy Owen, vice president of communications at Lockheed in Colorado Springs. Brown communicated concerns of fraudulent and illegal activity wherein Owen had developed sexual relationships with several soldiers in Iraq, was sending them sex toys, bought a laptop for one of them, and even booked fancy hotel rooms to meet them when they returned home to the states. These communications were allegedly occurring through an employee pen pal program.

Lockheed, in return, shut down the pen pal program and Owen’s position in the company was not affected.