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ANNUAL LAW UPDATE 2004
 
Prepared by: Kent L. Brown

 

AFTER ACQUIRED-EVIDENCE – LENGTHY FRONT PAY – MITIGATION

Sellers v. Mineta, ___F.3d___, 2004 WL 330085 (8th Cir. Mo.). Sellers, a terminated Federal Aviation Administration (FAA) employee, brought Title VII action against the Secretary of Transportation alleging sexual discrimination and retaliation for filing a sexual harassment complaint. After termination Sellers worked at Bank of America, making $25,000 a year (down from $106,000 at the FAA). The bank fired Sellers after she filed a false loan application in an attempt to discover her ex-husband’s wife’s credit history. In considering the case against the Secretary, the Court of Appeals held: 1) the after-acquired evidence doctrine (that post-termination conduct could, under certain circumstances, limit a plaintiff’s remedies) applies in Title VII cases (declining to follow Carr v. Woodbury County Juv. Det. Ctr., 905 F.Supp. 619); 2) front pay and reinstatement are alternative remedies for wrongful discharge, therefore, where plaintiff’s post-termination conduct precludes reinstatement, it also precludes front pay; 3) length of front-pay award of eight years, eight months was not abuse of discretion; but 4) not reducing front pay award in light of plaintiff’s failure to adequately mitigate was error. Sellers’ front pay award was vacated and the case remanded to establish whether the award should be limited by post-termination conduct and to take into consideration, when calculating front pay, her failure to adequately mitigate. To establish whether the conduct warrants limiting Sellers’ front pay award, the Secretary must convince the court by a preponderance of the evidence that FAA’s employment regulations, policies, and actual practice prohibits reinstatement. The district court had not found that FAA regularly adhered to its stated hiring provision that “a person who has been terminated from, or forced to resign, a position is unsuitable for employment as an Air Traffic Control Specialist.”

FMLA NOT BARRED BY STATE’S ELEVENTH AMENDMENT IMMUNITY

Nevada Department of Human Resources v. Hibbs, 123 S.Ct.1972 (U.S. 2003). In 1997, the Nevada Department of Human Resources granted William Hibbs12 weeks unpaid leave as authorized under the Family and Medical Leave Act of 1993 (FMLA). It permitted him time off as needed between May and December to care for his wife during her recovery from a car accident and surgery. In October, when Hibbs hadn’t been back to work since August 5, the Department notified him that he needed to report back by November 12 as his leave time was exhausted. Hibbs did not return and the Department terminated him. Hibbs brought suit against the Department, its director, and a supervisor, alleging violation of FMLA. The U.S. District Court for the District of Nevada entered summary judgment in favor of the Department, concluding that the Eleventh Amendment barred the FMLA claim, and that Hibbs’ Fourteenth Amendment rights had not been violated. The Ninth Circuit reversed, and the Supreme Court granted certiorari to settle a split among the Courts of Appeals.

When enacting FMLA, Congress reviewed evidence of an extensive history of sex discrimination in State leave benefits, almost exclusively applicable to women only. Employers could get around leave obligations by giving preference to men when hiring. One purpose of FMLA is to promote equal employment opportunity for women and men pursuant to the Equal Protection Clause. Gender-based discrimination, as in FMLA, is subject to strict rather than rational-basis scrutiny. The Court found that the language of the FMLA clearly allows abrogation of the States’ Eleventh Amendment immunity from suit in federal court and creates a private right of action to seek both equitable relief and money damages against any employer (public or private) found in violation. For these reasons, the Court held that state employees may recover money damages in federal court when a state violates FMLA’s family-care provision.

FMLA RETALIATION

Kephart v. Cherokee County, NC, 229 F.3d 1142 (Fourth Circuit 2000). Rex Kephart, former Tax Assessor for Cherokee County, North Carolina, brought suit against the County and individual defendants for alleged violations of the First and Fourteenth Amendments, the Americans with Disabilities Act (ADA), and the Family and Medical Leave Act of 1993 (FMLA). The Court of Appeals affirmed the district court’s grant of summary judgment in favor of the County, et al, on Kephart’s First Amendment claim, as Kephart failed to satisfy the necessary test. The Court also affirmed the grant of summary judgment for the County, et al, on the ADA claim and for the individual defendants on the FMLA claim. Kephart waived his right to appeal these by not objecting to their dismissal. The Court, however, reversed the District Court’s grant on the FMLA claim as to the County. Kephart had been employed by the County since 1989. In 1996, after complaining of possible criminal activity on the part of some of the commissioners, Kephart claimed retaliation eventually led to his termination. Starting July 30, Kephart took 30 days of sick leave due to a recurrence of rheumatoid arthritis. The County granted Kephart’s request for an additional 90 days leave under FMLA, simultaneously notifying Kephart that, as Tax Assessor, he was a “key employee” in a position requiring a permanent replacement. They added that if an equivalent position did not exist on his return, his employment would be terminated to avoid “substantial and grievous economic harm” to the County. Under FMLA, the employee retains the right to be restored to his or her position, or an equivalent position, with the same terms and benefits, at the end of leave. An exemption (an affirmative defense for the employer) allows an employer to deny restoration to certain “key” employees, but only if restoration would cause substantial and grievous injury (a different and more stringent standard than the ADA’s ‘undue hardship’ test). While Kephart was on leave, the County appointed the Tax Appraiser as “Interim Tax Assessor.” In December 1996, Kephart’s request for reinstatement to his former position was denied as threatened. The County argued that it needed a Tax Assessor and was forced to replace Kephart. However, deposition testimony indicated that when Kephart requested reinstatement, the “Interim Tax Assessor” could have returned to her position as Appraiser, opening the Assessor position for Kephart with no resulting economic injury. Without expressing opinion on the merits of this claim, the Court found a triable issue of fact, making summary judgment inappropriate.

FMLA KEY EMPLOYEE PRACTICE POINTERS

I. Retroactively designated FMLA leave. (Employee must demonstrate prejudice arising from failure to designate leave as FMLA). Ragsville v. Wolverine Worldwide, Inc., 122 S.Ct. 1155 (2002) invalidated regulation prohibiting retroactive designation.

II. Notices due to employees: leave approved ASAP (2 days), physician certification (at least 15 days), key employee notice at beginning and end.

III. Key employee status and notification requirements (economic impact ascertained as of date of return rather than evaluating impact of failure to replace employee immediately).

IV. The Eighth Circuit has recognized a cause of action against individual supervisors for FMLA retaliation and violations. Darby v. Bratch, 287 F.3d 673 (8th Cir. 2002).

V. The Eleventh Amendment does not bar suit against state employers.

VI. Two year statute of limitations. (29 USCA § 2617(c)(1)) Three years for willful violation. (§ 2615).

VII. Right to jury trial unclear. The Eighth Circuit affirmed a jury verdict in favor of the employer without deciding specifically whether a right to jury trial existed. Sanders v. May Dept. Stores Co., 315 F.3d 940 (8th Cir. 2003), Duty v. Norton - Alcoa Proppants, 293 F.3d 481 (8th Cir. 2002). Sixth Circuit recognizes right to jury trial - Frizzel v. Southwest Motor Freight, 154 F.3d 641 (6th Cir. 1998) Ragsdale, 122 S.Ct. 1155 mentions jury in dicta. The Tenth Circuit armed a jury award without specifically discussing the right to jury trial in Smith v. Diffee Ford - Lincoln - Murcury, Inc., 298 F.3d 955, 960 (10th Cir. 2002). The Fourth Circuit reversed a jury verdict in favor of the employee without determining whether there was a right to a jury trial. Babcock v. Bellsouth Advertising and Publishing Corp., 348 F.3d 73 (4th Cir. 2003). The Eleventh Circuit has done the same. Russell v. North Broward Hospital, 346 F.3d 1335 (11th Cir. 2003). The Eleventh Circuit seems to be recognizing the right to a jury trial without expressly addressing the issue. Morrison v. Amway Corp., 323 F.3d 920 (11th Cir. 2003).

VIII. To be eligible, employee must have worked 12 months and must have worked at least 1250 hours during that preceding 12 months. Work such as back pay or credit for lost time pursuant to a prior lawsuit or time while out on disciplinary action where the employee was not actually at work does not count.

IX. Seventh Circuit has held that mandatory grievance and arbitration provisions in collective bargaining agreements preclude actions under the FMLA. Smith v. CPC Food Service, 955 F. Supp. 84 (M.D. Ill. 1997).

X. Reasonable attorney’s fees and expert witness fees and other litigation costs are recoverable. (29 USCA § 2617(a)(3), 29 C.F.R. § 825.400) The Tenth Circuit has held that nominal damages are not available under the FMLA. Walker v. United Parcel Service, Inc., 240 F.3d 1268 (10th Cir. 2001).

XI. “Key Employee” (29 C.F.R. § 825.219)

A. Must notify of key employee designated and denial of reinstatement at time FMLA is approved.

B. Key employees are still eligible for free health insurance during 12 week leave and are on FMLA leave for all purposes other than reinstatement.

C. Hardship inquiry focuses on the “substantial and grievous economic injury to the employer’s operations will result if the employee is reinstated from FMLA leave.” Open question whether interim replacement or reassigning duties to another existing employee will justify denying reinstatement.

D. Notice needs to state specifically that FMLA cannot be denied but that the employer intends to deny reinstatement to employment upon completion of FMLA leave. In addition, service of the notice must be made by certified mail or in person and must explain the basis for the finding that substantial and grievous economic injury will result.

E. It requires that if the employee applies for reinstatement we must, at the time of the request for reinstatement, reevaluate whether there will be substantial and grievous economic injury from the reinstatement based on the facts at the time of the reinstatement request. If we determine that such injury will result we must notify the employee in writing delivered by certified mail or in person of the denial of restoration.

F. The Fourth Circuit has held in an unpublished opinion that the key employee exemption is an affirmative defense which must be proven by the employer (Kephart v. Cherokee County, NC, 229 F.3d 1142 (4th Cir. 2000) (table).

XII. Special Problems

A. Doctor certifications are seldom adequate. The employer has the right to request specific medical information necessary to determine eligibility.

B. Once employer learns information which would put a reasonable employer on notice of potential FMLA eligibility, employer must make reasonable inquiries and advise the employee of FMLA rights.

C. Often employees will have been off for several days or several weeks before FMLA eligibility becomes an issue. It is important to accurately determine whether the missed time can be counted against the FMLA 12 week allotment retroactively and assure that the employee is given all required notices, such as key employee notice, in a timely fashion.

D. The Fourth Circuit Court of Appeals has held in an unpublished opinion that sufficiently clear and unmistakable language in a collective bargaining agreement requiring internal grievance and arbitration resolution of disputes waives and employee’s right to litigation ADA and FMLA claims in federal court. Singletary v. Enersys, Inc., 57 F.ed. Appx. 161 (4th Cir. 2003).

E. Trial judge violated employee’s right to jury trial when he denied her front pay based on his determination that she would have been terminated within a few months had she not been terminated at the time she was. Such finding by the trial judge disregarded the jury’s implicit finding in its verdict that plaintiff would have been employed at least until the date of the trial. Smith v. Diffee Ford - Lincoln - Murcury, Inc., 298 F.3d 955, 960 (10th Cir. 2002).

XIII. The Tenth Circuit Court of Appeals has held that there are two separate theories of recovery under the FMLA. Smith v. Diffee Ford - Lincoln - Murcury, Inc., 298 F.3d 955, 960 (10th Cir. 2002) (29 U.S.C. § 2615(a)).

A. “Interference/Entitlement Theory” - Employer’s intent is irrelevant. A prima facia case requires a showing of 1) FMLA leave entitlement, 2) A denial of substantive rights under the FMLA, and 3) a causal connection between the two. Id. at 961.

B. “Retaliation/Discrimination Theory”

TITLE-VII DIRECT EVIDENCE STANDARD ABROGATED
McDONALD DOUGLAS BURDEN SHIFTING ALSO ABROGATED

Desert Palace, Inc. v. Costa, 123 S.Ct. 2148 (U.S. 2003). Costa, a former warehouse worker for Desert Palace, Inc., sued Desert Palace for gender discrimination and sexual harassment under Title VII. She and a male co-worker were disciplined for an altercation on an elevator, the co-worker being given a 5-day suspension, and Costa being terminated. The U.S. District Court for the District of Nevada dismissed the harassment claim and entered judgment on the jury verdict in favor of Costa on the discrimination claim. Desert Palace appealed, and the Ninth Circuit Court of Appeals vacated the judgment. On rehearing en banc, the Court of Appeals reinstated the judgment, reasoning that the 1991 amendments to Title-VII “wholly abrogated” references to direct evidence in a previous Supreme Court plurality opinion, Price Waterhouse v. Hopkins, 490 U.S. 228. Certiorari was granted. The Supreme Court held that direct evidence of discrimination is not required in order to prove employment discrimination in mixed-motive cases under Title VII of the Civil Rights Act of 1991. The Act set forth two new provisions for “mixed- motive” cases. The first states that an unlawful employment practice occurs “when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.”(42 U.S.C. § 2000e-2(m)). The second provides a limited affirmative defense to the employer that does not absolve it of liability, but restricts the plaintiff’s available remedies. To avail itself of the affirmative defense, the employer must demonstrate that it would have acted the same way in the absence of the forbidden motivating factor. (42 U.S.C. § 200e-5(g)(2)(B)). On its face, the statute does not require the heightened showing of direct evidence and unambiguously states that a plaintiff need only demonstrate that an employer used a forbidden consideration in employment. “Demonstrates” is defined in the statute as “mee[ting] the burdens of production and persuasion.” In the absence of an affirmative directive in the statute, the Court found that “a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that ‘race, color, religion, sex, or national origin was a motivating factor for any employment practice.” Since direct evidence of discrimination is not required, the Court of Appeals judgment is affirmed.

Smith v. Oachita Technical College, 337 F.3d 1079 (8th Cir. 2003). Lynette Smith, a former employee of Oachita Technical College brought suit against her former employer, alleging sexual and racial discrimination under Title VII and racial discrimination under 42 U.S.C. § 1981 The district court granted summary judgment on the ground that the claim of racial discrimination was not properly raised in the pleadings. Disagreeing and reversing the district court, the Court of Appeals “reviewed the complaint and record in light of the liberal standards for pleading under the federal rules” and found that the employee’s claim gave adequate notice to the district court and the College. The Court held that sufficient, “by the barest of margins,” to allege a claim against the employer for racial discrimination under § 1981.

TITLE-VII – VICARIOUS LIABILITY – DEFINITION OF SUPERVISOR

Joens v. John Morrell & Co., 354 F.3d 938 (8th Cir. 2004). Ladonna Joens, a plant worker in the box shop of John Morrell & Co., brought a Title VII action against the company, claiming sexual harassment, sex discrimination, and retaliation. Herman Johnson, a day-shift foreman of one of the production lines for which Joens produced boxes was the alleged harasser. The district court granted Morrell’s motion for summary judgment, and the Court of Appeals affirmed. The Court considered, in part, the diverse possibilities regarding who qualifies as a supervisor. Morrell would only be vicariously liable for the harassment if Johnson is considered Joens’s supervisor. Agreeing with the district court, which considered Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (Ellerth), and Faragher v. City of Boca Raton, 524 U.S. 775 (Faragher), the Court of Appeals adopted the standard of the majority of circuits in regarding a supervisor as one with “the power to take tangible employment action” against the claimant, “such as the authority to hire, fire, promote, or reassign to significantly different duties.” Johnson had none of these powers over Joens, and so could not be considered her supervisor within the Ellerth/Faragher standard for determining employer liability for a hostile work environment claim. Alternatively, Joens claimed that Morrell should be liable because the company did nothing when she repeatedly complained about Johnson’s behavior toward her. Joens failed to create a genuine issue of material fact that the harassment was of a sexual nature, or was specifically directed at her because of her gender. She also failed to create a sufficient dispute of fact that his conduct was severe enough to alter terms, conditions, or privileges of her employment. For these reasons, the Court of Appeals affirmed the district court’s grant of summary judgment.

DEFAMATION – PUBLICATION – NEED TO KNOW EXCEPTION

Gray v. AT&T Corp., 357 F.3d 763 (8th Cir. 2003). Former AT&T employee, Karin Gray, sued the Corporation for publishing allegedly defamatory statements concerning her termination. Court of Appeals affirmed the U.S. District Court for the Western District of Missouri grant of summary judgment in favor of AT&T. Under Missouri law, a person publishes a defamatory statement by communicating the defamatory matter to a third party. AT&T terminated Gray in April 1996 for allegedly falsifying corporate documents concerning a lengthy absence for a non-work related injury. After her termination, Gray filed a claim for unemployment benefits. AT&T forwarded the necessary information to Gates McDonald & Co., a company it regularly retained to process unemployment claims. Intra-corporate communications made in the regular course of business have long been immune from being considered publications. Also for many years, the law of libel and slander has recognized a general exemption to the publication rule for corporate communications to necessary third parties authorized who act on behalf of the corporation. “At least one court has applied a ‘need to know’ concept to the intra-corporate immunity rule.” Recognizing that “[c]orporations. . .often rely on outside companies to perform many of their complicated regulatory compliance duties. . ., ” the Court stated its belief that “Missouri would apply a similar ‘need to know’ concept for communications between the separate corporations” under these facts. “At&T’s communications of allegedly defamatory statements occurred in the regular course of its business, among persons having a need to know in order to perform their employment duties. No publication, as recognized by Missouri law, occurred.”

ADA (“REGARDED AS”) – WORK COMP RETALIATION – INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS – SOVEREIGN IMMUNITY

Epps v. The City of Pine Lawn, 353 F.3d 588 (8th Cir. 2003). The City of Pine Lawn dismissed patrolman Dennis Epps after concluding that injuries from an August 1998 on-the-job auto accident left him unable to perform those duties. Epps’s physician recommended, after the accident, that he work as a detective instead. Epps did not heed this advice, and, after returning to work, exacerbated the injuries to the extent that he repeatedly missed work, and, a year after the accident, did not return to work at all. In May 2000, the City terminated Epps. In February 2001, Epps sued Pine Lawn alleging that his termination violated the Americans with Disabilities Act (ADA), and the Missouri Human Rights Act (MHRA). He also claimed the termination was in retaliation for filing a workers’ compensation claim, unlawful under § 287.780 RSMo., and amounted to intentional infliction of emotional distress under Missouri common law. The district court granted Pine Lawn’s motion for summary judgment on all counts, and the Court of Appeals affirmed. The Court held that Epps could not prevail on his ADA and MHRA claims since Epps could not establish that Pine Lawn regarded him as disabled. Evidence showed only that Pine Lawn believed he could no longer perform patrolman duties and not that he was unable to perform a broad range of work. The Court also held that Missouri’s discretionary immunity statute barred Epps’s workers’ compensation retaliation and intentional infliction of emotional distress claims. The City did not waive its sovereign immunity by purchase of insurance policy through Missouri Public Entity Risk Management Fund (MOPERM), as it specifically denied liability coverage for workers’ compensation related claims.

ADVERSE EMPLOYMENT ACTION

Jones v. Reliant Energy, 336 F.3d 689 (8th Cir. 2003). The Eighth Circuit upheld summary judgment against an employee who claimed race discrimination involving a severance package. She claimed that the employer failed to give her an option of accepting a severance package instead of relocating her as was done for a white employee. Employee remained employed by employer. The Court reasoned that the failure to give an employee an option of choosing between two non-adverse employment actions cannot transform the outcome into an adverse employment action.

INDIVIDUAL SUPERVISOR LIABILITY UNDER MISSOURI HUMAN RIGHTS ACT

Hill v. Ford Motor Co., Case No. 04:03CV1857 SNL (E.D. Mo. March 4, 2004). Judge Limbaugh, Senior United States District Judge for the Eastern District of Missouri has held, in a case dealing primarily with remand after removal, that the Missouri Supreme Court would determine that the Missouri Human Rights Act created a cause of action against individual supervisors. This provocative decision raises several intriguing issues:

* Will the MHRA definition of employer become irrelevant?

* Will employers be subject to indemnification or contribution claims by supervisors?

* Will supervisors be subject to indemnification or contribution claims by employers?

* Will mere mention of the supervisor’s name in the charge of discrimination without service upon the supervisor by MCHR be sufficient to exhaust administrative remedies and preserve Plaintiff’s right to sue?

* Will existing insurance policy language extend coverage to supervisors?

* Will conflicts of interest or ethical conflicts for attorneys require employers or insurance companies to provide separate lawyers for supervisors?

* Some sort of immunity shield supervisors acting within the course and scope of their duties?

    * (Must the supervisor be acting in his individual capacity before liability attaches?)

    * (If the supervisor is not exercising the power of the employer, the motion, transfer, suspension without pay, etc., will the supervisor be liable?)

ADA PREEMPTION

Harris v. P.A.M. Transport, Inc., 339 F.3d 635 (8th Cir. 2003). Defendant operated a motor carrier business licensed by DOT for interstate commerce. DOT regulations require drivers obtain a medical certification of fitness for the job. Plaintiff’s physician gave him certification but employer’s physician found he did not meet DOT regulations. Plaintiff filed suite under the ADA. Court found that Plaintiff failed to follow DOT procedures for appeal precluding a claim under the ADA. Congress gives DOT the sole discretion to determine driver qualifications.

ADA “REGARDED AS”

Simonson v. Trinity Regional Health Systems, 336 F.3d 706 (8th Cir. 2003). Plaintiff filed an age and disability discrimination suit against employer for failure to rehire or transfer her after her job was eliminated. Plaintiff had suffered work-related injuries prior to termination however, had no work restrictions in her file. Court rejected Plaintiff’s argument that she was “regarded as” disabled stating that the hospital’s awareness of her past medical condition was not evidence to prove they “regarded her” as disabled. Plaintiff stated that she had asked a manager whether she would be considered for one of the available jobs and the manager responded, “I’m not sure if that’s physically a good choice for you.” The Court found that this comment was not based on any myths or archaic attitudes about the disabled. The Court relied on reasoning from Sutton that “any employer is free to decide that ... limiting, but not substantially limiting impairments, make individuals less than ideally suited for the job.” The Court held that Plaintiff’s ADEA claim failed because she did offer any evidence of age-based comments and failed to provide the Court with specific ages of the persons hired into available positions.

ADA – RIGHT TO RELY ON PHYSICIAN STATEMENT

Alexander v. The Northland Inn, 321 F.3d 723 (8th Cir. 2003). The Court dismissed an ADA claim filed by a housekeeping supervisor, finding that vacuuming was an essential function of her job. The housekeeping supervisor was terminated based on the doctor’s statement that she could not vacuum. The housekeeping supervisor argued that the hotel should have accommodated her by not requiring her to vacuum until she and her physical therapist established a way to safely vacuum. The Court held that the hotel was entitled to rely on the Physician’s written statement that restricted her from vacuuming.

ADA – ESSENTIAL JOB FUNCTIONS

Schuler v. SuperValu, Inc., 336 F.3d 702 (8th Cir. 2003). The Eighth Circuit affirmed a grant of summary judgment to the employer, SuperValu, finding that Schuler, the applicant, could not demonstrate that the employer regarded him as substantially limited in a major life activity of working under the ADA. As a result of an independent medical examination, the doctor placed the applicant on medical restriction, due to his epilepsy, but the reason was never disclosed to the employer before making the decision to withdraw its employment offer. A job requirement by an employer does not become invalid simply because it would limit a person’s employment opportunities if adopted by a substantial number of employers.

ADA – DISQUALIFATION FROM SOME JOBS INSUFFICIENT

Wood v. Crown Redi-Mix, Inc., 339 F.3d 682 (8th Cir. 2003). The Eighth Circuit upheld the summary judgment in favor of the employer, Crown, dismissing an ADA claim filed by Wood, a former employee, finding that the evidence failed to prove that his injuries substantially limited any major life activities except for his ability to procreate. Woods was terminated because he could no longer perform his concrete truck driving job, and the employer did not have another position to accommodate the employee’s permanent restrictions. The evidence showed that Wood’s injuries prevented him from only driving concrete trucks and that he could still drive other trucks. His impairment disqualified him from only a narrow range of jobs, which was not enough to consider him to be substantially limited for purposes of the ADA. Wood could have proven he was disabled pursuant to the ADA had he demonstrated either a record of an impairment that limited a major life activity or that Crown regarded him as having such an impairment.

ADA

Burchett v. Target Corp., 340 F.3d 510 (8th Cir. 2003). The Eighth Circuit affirmed a grant of summary judgment dismissing the employee’s claims of disability discrimination pursuant to the ADA. The employee argued she was actually disabled by depression or that her employer, Target, regarded her as disabled and failed to make reasonable accommodations for her. The employer had followed all doctor’s requests for leave and restructured her hours The employer felt that Burchett had performance problems in her present position. Targets policy is not to transfer employees from one manager to another if the employee is experiencing significant performance problems and explained this to the employee. The Court concluded that Target was not obligated to transfer Burchett because the accommodations within her current position did not pose an undue hardship on her and were based on her actual work performance rather than intentional discrimination. Burchett failed to establish a causal connection between Target’s refusal to transfer her and her disability.

SELECTED BIBLIOGRAPHY OF NEW EMPLOYMENT LAW CASES

CHARGE OF DISCRIMINATION - EXHAUSTION

Mohr v. Dustrol, Inc., 306 F.3d 636 (8th Cir. 2002).

CONTRACT - TERMINABLE AT WILL

Olander v. State Farm Mutual Automobile Ins. Co., 317 F.3d 807 (8th Cir. 2003) (en banc).

DEFAMATION

Fleischaker v. Headlee, 99 S.W.3d 540 (Mo. App. S.D.2003).

DEFINITION OF “EMPLOYEE” / “INDEPENDENT CONTRACTOR”

Clackamas Gastroenterology Assoc. v. Wells, 133 S.Ct. 1673 (2003).

Lerohl v. Friends of Minnesota Sinfonia, 322 F.3d 486 (8th Cir. 2003).

EQUAL PAY ACT

Hunt v. Nebraska Public Power District, 282 F.3d 1021 (8th Cir. 2002).

EVIDENCE

Swan v. Interstate Brands Corporation, 333 F.3d 863 (8th Cir. 2003).

Mason v. Wal-Mart, 91 S.W.3d 738 (Mo. App. W.D. 2002).

FRONT PAY AWARD

Ollie v. Titan Tire Corp., 336 F.3d 680 (8th Cir. 2003).

HARASSMENT

Alagna v. Smithville R-II School District, 324 F.3d 975 (8th Cir. 2003).

Meriwether v. Caraustar Packaging Co., 326 F. 3d 990 (8th Cir. 2003).

Reedy v. Quebecor Printing Eagle, Inc., 333 F.3d 906 (8th Cir. 2003).

JURY SELECTION

Elmahdi v. Marriott Hotel Services, Inc., 339 F.3d 645 (8th Cir. 2003).

MISSOURI HUMAN RIGHTS ACT

Diehl v. O’Malley, 95 S.W.3d 82 (Mo.banc 2003).

MIXED MOTIVE THEORY

Desert Palace, Inc. v. Costa, 123 S.Ct. 2148 (2003).

NATIONAL LABOR RELATIONS ACT

Hinton v. Sigma-Aldrich Corp., 93 S.W.3d 755 (Mo. App. E.D. 2002).

Williams v. Watkins Motor Lines, Inc., 310 F.3d 1070 (8th Cir. 2002).

NLRB v. Miller Waste Mills, 315 F.3d 951 (8th Cir. 2003).

Claude v. Ceccarini, 110 S.W.3d 843 (Mo. App. E.D. 2003).

Conrad v. Int’l Assoc. of Machinists and Aero-Space Workers, et al., 338 F.3d 908 (8th Cir. 2003).

NATIONAL ORIGIN DISCRIMINATION

Hannoon v. Fawn Engineering Corp., 325 F.3d 1041 (8th Cir. 2003).

NON-COMPETE AGREEMENTS

Kessler-Heasley Artificial Limb Col, Inc. v. Kenney, 90 S.W.3d 181 (Mo. App. S.D. 2002).

Roeder v. Ferrell-Duncan Clinic, Inc. (Greene County Circuit Court, August 11, 2003).

PLEADINGS

Smith v. Quachita Technical College, 337 F.3d 1079 (8th Cir. 2003) - Pleading standards.

PRETEXT

Mayer v. Nextel West Corp., 318 F.3d 803 (8th Cir. 2003).

PREVAILING WAGE ACT

Chester Bross Construction company v. Missouri Department of Labor and Industrial Relations, ___S.W.3d___, 2003 WL 1906384 (Mo. App. E.D. 2003).

State of Missouri v. Fru-Con Construction Corp., 90 S.W.3d 533 (Mo. App. E.D. 2002).

PUNITIVE DAMAGES

Walsh v. National Computer Systems, Inc., 332 F.3d 1150 (8th Cir. 2003).

Lawrence v. CNF Transportation, Inc., 340 F.3d 486 (8th Cir. 2003).

RETALIATION

Back v. Danka Corp., 335 F.3d 790 (8th Cir 2003).

Mitchell v. Iowa Protection and Advocacy Services, Inc., 325 F.3d 1011 (8th Cir. 2003).

Krough v. Cessford Construction Company, 336 F.3d 710 (8th Cir. 2003).

EEOC v. Kohler Company, 335 F.3d 766 (8th Cir. 2003).

Heisler v. Metropolitan Council, 339 F.3d 622 (8th Cir. 2003).

SETTLEMENT AGREEMENTS / RELEASES

Seaman v. FMC Corp. Retirement Plan for Hourly Employees, 334 F.3d 728 (8th Cir. 2003).

4:20 Communications, Inc. v. The Paradigm Company, 336 F.3d 775 (8th Cir. 2003).

UNEMPLOYMENT BENEFITS - “MISCONDUCT’

Dixon v. Division of Employment Security, 106 S.W.3d 536 (Mo. App. W.D. 2003).

McClelland v. Hogan Personnel, LLC., ___ S.W.3d ___, 2003 WL 21960349 (Mo. App. W.D. 2003).

City of Branson v. Santo, ___ S.W.3d ___, 2003 WL 21956914 (Mo. App. S.D. 2003).

WHISTLEBLOWING

U.S. ex rel. Golden v. Arkansas Game and Fish Comm., 333 F.3d 867 (8th Cir. 2003).

Bachetel v. Miller County Nursing Home District, 110 S.W.3d 799 (Mo. banc 2003).

CONSTITUTIONAL RIGHT TO PRIVACY – WHISTLEBLOWER

Givens v. Regents of University of California, 2003 WL 21246766 (Cal.App. 4 Dist.). Larry Givens, former Assistant Vice-Chancellor of Facilities Management at University of California, Irvine (UCI), claimed his right to privacy was violated when UCI employees, while on a public elevator, revealed Givens as a whistleblower. The discussion connected Givens to a report regarding misuse of state funds. Under the Whistleblower Protection Act, and UCI’s conforming written policy, the whistleblower’s identity can only be divulged to university personnel with a legitimate need to know. During the time Givens filed the report, he was being reinvestigated for unrelated improper conduct in the workplace, which resulted in termination. In response to the termination Givens filed a Whistleblower Retaliation Complaint, and, in August 2000, a lawsuit. A jury determined that UCI terminated Givens based on insubordination as found in the reinvestigation of his workplace conduct. The jury also determined that UCI had violated Givens’ privacy concerning the Whistleblower Complaint and awarded damages. The trial court then granted UCI’s motion for JNOV. The court cited a lack of evidence to support the violation of privacy claim, but particularly a lack of evidence regarding damages. The Court of Appeals chose not to second guess the jury’s findings that UCI had violated Givens’ common law and constitutional rights to privacy, in spite of whether he revealed to others his intention to report the activity before actually doing so. The seriousness of the violation was supported by evidence that the word had spread farther than the elevator. The harm was reasonably found when Givens tried and could not find other work anywhere at the university. The jury attributed this, at least in part, to shared knowledge of his whistleblower status. The Court did question whether there was evidence enough to justify the damage award. Designated ½ economic, and ½ noneconomic, the award equals the amount of potential economic damages arising from termination, as given by UCI’s expert. The Court found that, since Givens was fired for unrelated insubordination, he should not expect to be hired back, and the jury may have miscalculated the amount of damages. The issue of the amount of damages to be awarded is “distinct and severable from” the liability issue, allowing trial court discretion to grant a limited new trial on the issue of damages. Reversed and remanded.